Sufficient Funds. (a) Assuming the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and assuming satisfaction of the conditions in Article VII (other than the conditions set forth in Sections 7.2(a) and 7.2(b) and those conditions that by their nature can only be satisfied at the Closing, but subject to the satisfaction or waiver thereof), Parent and Merger Sub will have available to them at the Effective Time all funds and commitments necessary to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing. Parent has delivered to the Company true and complete copies of (i) a fully executed debt commitment letter, dated as of the date of this Agreement (including all exhibits thereto in effect on the date hereof) and (ii) the executed fee letter referenced therein, relating to fees with respect to the Financing contemplated by the commitment letter (collectively, the “Commitment Letter”), by and among Parent and the Financing Sources specified therein (with only fee amounts and other economic terms, and the rates and amounts included in the “flex” provisions, redacted, none of which redacted provisions would adversely affect the conditionality, enforceability, termination or amount of the debt financing contemplated by the commitment letter). Pursuant to the Commitment Letter, and subject to the terms and conditions thereof, the Financing Sources party thereto have committed to provide Parent with the amounts set forth in the Commitment Letter for the purposes set forth therein (the debt financing contemplated in the Commitment Letter, together with, unless the context otherwise requires, any replacement financing, including any bank financing or debt securities issued in lieu thereof, the “Financing”). As of the date of this Agreement, the Commitment Letter is in full force and effect and has not been withdrawn, rescinded or terminated, or otherwise amended or modified in any respect and no amendment or modification is contemplated (other than as set forth in the fee letters with respect to flex rights and/or to add additional lenders, arrangers, bookrunners, syndication agents and similar entities who had not executed the Commitment Letter as of the date of this Agreement), and the Commitment Letter, in the form so delivered, constitutes the legal, valid and binding obligation of, and is enforceable against, Parent and, to the knowledge of Parent, each of the other parties thereto, subject, in each case, to the Enforceability Exceptions. Except as set forth in the Commitment Letter and except for any related commitment letters, engagement letters and fee letters related to the permanent financing described in the Commitment Letter, as of the date of this Agreement, there are no contracts, agreements, “side letters” or other arrangements to which Parent or any of its affiliates is a party relating to the Commitment Letter or the Financing. (b) As of the date of this Agreement, no event has occurred which, with or without notice, lapse of time or both, constitutes, or would reasonably be expected to constitute, a default or breach by Parent or, to the knowledge of Parent, any other party thereto, of any term of the Commitment Letter. As of the date of this Agreement, no Financing Source party to the Commitment Letter has notified Parent of its termination or repudiation (or intent to terminate or repudiate) any of the commitments under such Commitment Letter or intent not to provide the Financing. Assuming the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and assuming satisfaction of the conditions in Article VII (other than the conditions set forth in Sections 7.2(a) and 7.2(b) and those conditions that by their nature can only be satisfied at the Closing, but subject to the satisfaction or waiver thereof), Parent has no reason to believe that any of the conditions to the funding of the Financing contemplated by the Commitment Letter and contained in the Commitment Letter will fail to be satisfied on the Closing Date or that the full amounts committed pursuant to the Commitment Letter will not be available to be funded on the Closing Date to the extent required, when taken together with cash or cash equivalents held by Parent and the Company on the Closing Date and the other sources of funds available to Parent on the Closing Date, to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing. (c) Parent acknowledges that its obligation to consummate the Merger as set forth in this Agreement is not contingent on Parent’s ability to obtain any financing, whether pursuant to the Commitment Letter or otherwise. (d) Parent has fully paid (or caused to be paid) any and all commitment fees or other fees required by the Commitment Letter to be paid on or before the date of this Agreement. Assuming (i) the funding of the full amount of the Financing in accordance with and subject to the satisfaction of the conditions in the Commitment Letter, (ii) the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and (iii) satisfaction of the conditions in Article VII, the aggregate proceeds from the Financing (after netting out applicable fees, expenses, original issue discount and similar premiums and chargers and after giving effect of the maximum amount of flex (including original issue discount flex) provided under the Commitment Letter) constitute all of the financing necessary to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing and, when taken together with cash or cash equivalents held by Parent and the Company on the Closing Date and the other sources of funds available to Parent on the Closing Date, will be sufficient in amount to pay the foregoing amounts in full. The only conditions precedent related to the obligations of the Financing Sources party to the Commitment Letter to fund the full amount of the Financing contemplated by the Commitment Letter are expressly set forth in the Commitment Letter.
Appears in 2 contracts
Sources: Merger Agreement (Fiserv Inc), Merger Agreement (First Data Corp)
Sufficient Funds. (a) Assuming Parent and the truth and accuracy Purchaser each will have, including the use of the Company’s representations and warranties set forth cash in Article III and compliance by an amount of not less than $54,000,000, upon the Company with its obligations hereunderAcceptance Date, in each case, in all material respects, and assuming satisfaction of the conditions in Article VII Expiration Date (other than as the conditions set forth in Sections 7.2(asame may be extended from time to time pursuant to this Agreement) and 7.2(b) and those conditions that by their nature can only be satisfied at the Closing, but subject to the satisfaction or waiver thereof), Parent and Merger Sub will have available to them at the Effective Time all Time, the funds and commitments necessary to refinance consummate the Offer and the Merger, including (i) to pay to purchase the Shares in full all amounts outstanding under the Company Credit AgreementOffer, the Company Receivables Financing Merger Consideration, the Option Payments and the Warrant Payments and (ii) to pay all transaction fees and expenses incurred by Parent and the Purchaser in connection with this Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing. transactions contemplated hereby.
(b) Parent has delivered to the Company true true, complete and complete correct copies of (i) a fully executed debt commitment letter, dated as of the date of this Agreement letters (including all exhibits thereto in effect on the date hereof) and (ii) the executed fee letter referenced therein, relating to fees with respect to the Financing contemplated by the commitment letter (collectively, the “Commitment LetterDebt Financing Commitments”), by and among Parent and pursuant to which the Financing Sources specified therein (with only fee amounts and other economic termslender parties thereto have agreed, and the rates and amounts included in the “flex” provisions, redacted, none of which redacted provisions would adversely affect the conditionality, enforceability, termination or amount of the debt financing contemplated by the commitment letter). Pursuant to the Commitment Letter, and subject to the terms and conditions thereof, the Financing Sources party thereto have committed to provide Parent with or cause to be provided the debt amounts set forth in the Commitment Letter for the purposes set forth therein (the debt financing contemplated in “Debt Financing”), and (ii) executed equity commitment letters (the “Equity Commitment Letter”, and together withwith the Debt Financing Commitments, unless the context otherwise requires“Financing Commitments”), any replacement financingpursuant to which certain persons (collectively, including any bank financing or debt securities issued in lieu the “Equity Investors”) have committed, subject to the terms and conditions thereof, to invest the amount set forth therein (the “Equity Financing,” and together with the Debt Financing, the “Financing”). As of the date of this Agreement, the Commitment Letter is The Financing Commitments are in full force and effect and has not been withdrawn, rescinded or terminated, or otherwise amended or modified in any respect and no amendment or modification is contemplated (other than as set forth in the fee letters with respect to flex rights and/or to add additional lenders, arrangers, bookrunners, syndication agents and similar entities who had not executed the Commitment Letter as of the date of this Agreement), and the Commitment Letter, in the form so delivered, constitutes the are a legal, valid and binding obligation ofof Parent and the Purchaser, and is enforceable against, Parent and, to the knowledge of Parent, each of the other parties thereto. None of the Financing Commitments has been or is expected to be amended or modified, subjectexcept as permitted by Section 5.12, in each case, to and the Enforceability Exceptions. Except as set forth respective commitments contained in the Commitment Letter and except for Financing Commitments have not been withdrawn or rescinded in any related commitment letters, engagement letters and fee letters related to the permanent financing described in the Commitment Letter, as of the date of this Agreement, there are no contracts, agreements, “side letters” or other arrangements to which Parent or any of its affiliates is a party relating to the Commitment Letter or the Financing.
(b) As of the date of this Agreement, no respect. No event has occurred which, with or without notice, lapse of time or both, constitutes, or would reasonably be expected to constitute, constitute a material default or material breach by on the part of Parent or, to or the knowledge of Parent, Purchaser under any other party thereto, of Financing Commitment; provided that Parent is not making any term representation regarding the effect of the Commitment Letter. As inaccuracy of the date representations and warranties in Article 3. Neither Parent nor the Purchaser has any reason to believe that it will be unable to satisfy any material term or condition of this Agreement, no Financing Source party closing to the Commitment Letter has notified Parent of its termination or repudiation (or intent to terminate or repudiate) be satisfied by it in any of the commitments under such Commitment Letter or intent Financing Commitments on the Closing Date; provided that Parent is not to provide making any representation regarding the Financing. Assuming the truth and accuracy inaccuracy of the Company’s representations and warranties set forth in Article III and compliance by 3, or the failure of the Company with to perform its obligations hereunder, in each case, in . The Financing Commitments contain all material respects, and assuming satisfaction of the conditions in Article VII (other than the conditions set forth in Sections 7.2(a) and 7.2(b) and those conditions that by their nature can only be satisfied at the Closing, but subject precedent to the satisfaction or waiver thereof), Parent has no reason to believe that any obligations of the conditions parties thereunder to the funding of the make Financing contemplated by the Commitment Letter and contained in the Commitment Letter will fail to be satisfied on the Closing Date or that the full amounts committed pursuant to the Commitment Letter will not be available to be funded on the Closing Date to the extent required, when taken together with cash or cash equivalents held by Parent and the Company on the Closing Date and the other sources of funds available to Parent on the Closing Dateterms therein. There are no side letters or other agreements, to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement contract or arrangements (except for customary fee letters and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating engagement letters) related to the Merger and the Financing.
(c) Parent acknowledges that its obligation to consummate the Merger funding or investing, as set forth in this Agreement is not contingent on Parent’s ability to obtain any financingapplicable, whether pursuant to the Commitment Letter or otherwise.
(d) Parent has fully paid (or caused to be paid) any and all commitment fees or other fees required by the Commitment Letter to be paid on or before the date of this Agreement. Assuming (i) the funding of the full amount of the Debt Financing in accordance with and subject to the satisfaction of the conditions in the Commitment Letter, (ii) the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and (iii) satisfaction of the conditions in Article VII, the aggregate proceeds from the Financing (after netting out applicable fees, expenses, original issue discount and similar premiums and chargers and after giving effect of the maximum amount of flex (including original issue discount flex) provided under the Commitment Letter) constitute all of the financing necessary to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing and, when taken together with cash or cash equivalents held by Parent and the Company on the Closing Date and the other sources of funds available to Parent on the Closing Date, will be sufficient in amount to pay the foregoing amounts in full. The only conditions precedent related to the obligations of the Financing Sources party to the Commitment Letter to fund the full amount of the Financing contemplated by the Commitment Letter are than as expressly set forth in or contemplated by the Commitment LetterDebt Financing Commitments.
Appears in 2 contracts
Sources: Merger Agreement (Gentek Inc), Merger Agreement (ASP GT Holding Corp.)
Sufficient Funds. (a) Assuming The aggregate proceeds from the truth and accuracy of the CompanyFinancing, together with Parent’s representations and warranties set forth in Article III and compliance by the Company current cash on hand, will provide Parent with its obligations hereunder, in each case, in all material respects, and assuming satisfaction of the conditions in Article VII (other than the conditions set forth in Sections 7.2(a) and 7.2(b) and those conditions that by their nature can only be satisfied at the Closing, but subject to the satisfaction or waiver thereof), Parent and Merger Sub will have available to them sufficient funds at the Effective Time to consummate the Merger and to pay all funds costs, fees and commitments necessary to refinance in full all amounts outstanding under expenses incurred by Parent, Merger Sub and the Company Credit Agreement, the Company Receivables Financing in connection with this Agreement and the transactions contemplated by this Agreement (including any refinancing or repayment of indebtedness of Parent, Merger Sub or the Company Indentures, to pay cash required in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing. connection therewith).
(b) Parent has delivered to the Company true true, complete and complete correct copies of (i) a fully executed debt commitment letterletters, dated as of the date hereof, from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and Bank of America, N.A. (the “Financing Commitments”), pursuant to which the Debt Financing Sources parties thereto have agreed, subject only to the conditions precedent set forth in the fourteenth paragraph of the Financing Commitment letter; the Certain Funds Provision (as defined in the Financing Commitments) therein and, solely with respect to the senior secured facilities described in the Financing Commitments, the other conditions set forth in Part IV of the Senior Term Sheet (as defined in the Financing Commitments) under the heading “Initial Conditions” and the conditions set forth in clause (a) of Part IV of the Senior Term Sheet under the heading “Ongoing Conditions”; and, solely with respect to the bridge facility described in the Financing Commitments, the other conditions set forth in Section 4 of the Bridge Term Sheet (as defined in the Financing Commitments) under the heading “Initial Conditions” (collectively, the “Financing Conditions”), to provide the debt financing set forth therein for the purposes of financing the transactions contemplated hereby (the “Financing”). The Financing Commitments are in full force and effect as of the date of this Agreement (including all exhibits thereto in effect on the date hereof) and (ii) the executed fee letter referenced thereinare legal, relating to fees with respect valid, binding and enforceable obligations of Parent and, to the Financing contemplated by the commitment letter (collectivelyKnowledge of Parent, the “Commitment Letter”), by and among Parent and the Financing Sources specified therein (with only fee amounts and other economic terms, and the rates and amounts included in the “flex” provisions, redacted, none of which redacted provisions would adversely affect the conditionality, enforceability, termination or amount of the debt financing contemplated by the commitment letter). Pursuant to the Commitment Letter, and subject to the terms and conditions thereof, the Financing Sources party thereto have committed to provide Parent with the amounts set forth in the Commitment Letter for the purposes set forth therein (the debt financing contemplated in the Commitment Letter, together with, unless the context otherwise requires, any replacement financing, including any bank financing or debt securities issued in lieu thereof, the “Financing”)parties thereto. As of the date of this Agreement, none of the Commitment Letter is Financing Commitments has been amended, supplemented or modified in full force and effect and has any respect, the respective commitments contained in the Financing Commitments have not been withdrawn, rescinded or terminated, repudiated or otherwise amended rescinded in any respect. None of the Financing Commitments will be amended, supplemented, modified or modified waived in any respect and no amendment or modification is contemplated (other than at any time thereafter except as set forth in the fee letters with respect to flex rights and/or to add additional lenders, arrangers, bookrunners, syndication agents and similar entities who had not executed the Commitment Letter as of the date of this Agreementexpressly permitted by Section 5.13(b), and the Commitment Letter, in the form so delivered, constitutes the legal, valid and binding obligation of, and is enforceable against, Parent and, to the knowledge of Parent, each of the other parties thereto, subject, in each case, to the Enforceability Exceptions. Except as set forth in the Commitment Letter and except for any related commitment letters, engagement letters and fee letters related to the permanent financing described in the Commitment Letter, as of the date of this Agreement, there are no contracts, agreements, “side letters” or other arrangements to which Parent or any of its affiliates is a party relating to the Commitment Letter or the Financing.
(b) As of the date of this Agreement, no event has occurred which, with or without notice, lapse of time or both, constitutes, or would reasonably be expected to constitute, constitute a default or breach by on the part of Parent oror Merger Sub under any term, to the knowledge or a failure of Parent, any other party theretocondition, of any term of the Financing Commitment Letter. As of the date of this Agreement, no Financing Source party to the Commitment Letter and neither Parent nor Merger Sub has notified Parent of its termination or repudiation (or intent to terminate or repudiate) any of the commitments under such Commitment Letter or intent not to provide the Financing. Assuming the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and assuming satisfaction of the conditions in Article VII (other than the conditions set forth in Sections 7.2(a) and 7.2(b) and those conditions that by their nature can only be satisfied at the Closing, but subject to the satisfaction or waiver thereof), Parent has no reason to believe that (i) it or any other party thereto will be unable to satisfy on a timely basis any term of, or condition set forth in, the Financing Commitments on or prior to the Closing or (ii) the Financing will not be made available to Parent and Merger Sub on the Closing. There are no conditions precedent or other contingencies related to the funding of the full amount of the Financing other than the Financing Conditions, and the only conditions precedent or other contingencies relating to the funding of the Financing contemplated by the Commitment Letter and contained in the Commitment Letter will fail to be satisfied on the Closing Date that will be included in the definitive documentation with respect to the Financing shall be the Financing Conditions. There are no side letters or that other agreements, Contracts or arrangements related to the funding of the full amounts committed pursuant amount of the Financing or the financing of any of the transactions contemplated by this Agreement other than as expressly set forth in the Financing Commitments, the fee letters, dated as of the date hereof, from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and Bank of America, N.A. relating to the Commitment Letter will not be available Financing Commitments, a true, complete and correct copy of which Parent has delivered to be funded the Company in a redacted form removing only the fees payable on the Closing Date to the extent requiredDebt Financing Sources party thereto, when taken together with cash or cash equivalents held by Parent and the Company on engagement letter, dated as of the Closing Date date hereof, from ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and the other sources of funds available to Parent on the Closing Date, to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated relating to the Merger Financing, a true, complete and the Financing.
(c) correct copy of which Parent acknowledges that its obligation to consummate the Merger as set forth in this Agreement is not contingent on Parent’s ability to obtain any financing, whether pursuant has delivered to the Commitment Letter or otherwise.
(d) Company in a redacted form removing only the fees payable on the Closing. Parent has fully paid (or caused to be paid) any and all commitment fees or and other fees required by the Commitment Letter to be paid amounts that are due and payable on or before prior to the date of this Agreement. Assuming (i) Agreement in connection with the funding of the full amount of Financing, and Parent represents that any other fees that are due under the Financing in accordance with and subject Commitments are required to be paid no earlier than the satisfaction of the conditions in the Commitment Letter, (ii) the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and (iii) satisfaction of the conditions in Article VII, the aggregate proceeds from the Financing (after netting out applicable fees, expenses, original issue discount and similar premiums and chargers and after giving effect of the maximum amount of flex (including original issue discount flex) provided under the Commitment Letter) constitute all of the financing necessary to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing and, when taken together with cash or cash equivalents held by Parent and the Company on the Closing Date and the other sources of funds available to Parent on the Closing Date, will be sufficient in amount to pay the foregoing amounts in full. The only conditions precedent related to the obligations of the Financing Sources party to the Commitment Letter to fund the full amount of the Financing contemplated by the Commitment Letter are expressly set forth in the Commitment LetterClosing.
Appears in 2 contracts
Sources: Merger Agreement (Endo Pharmaceuticals Holdings Inc), Merger Agreement (American Medical Systems Holdings Inc)
Sufficient Funds. (a) Assuming On the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and assuming satisfaction of the conditions in Article VII (other than the conditions set forth in Sections 7.2(a) and 7.2(b) and those conditions that by their nature can only be satisfied at the Closing, but subject to the satisfaction or waiver thereof)Closing Date, Parent and Merger Sub will have sufficient cash, available lines of credit or other sources of immediately available funds to them at make the Effective Time all funds and commitments necessary to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the FinancingClosing Date Payments. Parent has delivered to obtained a commitment letter from MUFG Bank, Ltd. and Mizuho Bank, Ltd. (collectively, the Company true and complete copies of (i) a fully executed debt commitment letter“Financing Sources”), dated as of September 10, 2018, pursuant to which the date Financing Sources have agreed, subject to the terms and conditions set forth therein, to provide debt financing to Parent in the aggregate amount of $6.5 billion (or its equivalent amount in Japanese Yen) (the “Financing”) to consummate the Merger and to perform its obligations under this Agreement (including all exhibits thereto in effect on the date hereof) and (ii) the executed fee letter referenced therein, relating to fees with respect to the Financing contemplated by the commitment letter (collectively, the “Commitment Letter”), by a true and among Parent and the Financing Sources specified therein (with only fee amounts and other economic terms, and the rates and amounts included in the “flex” provisions, redacted, none complete copy of which redacted provisions would adversely affect the conditionality, enforceability, termination or amount of the debt financing contemplated by the commitment letter). Pursuant Parent has delivered to the Commitment Letter, and subject to the terms and conditions thereof, the Financing Sources party thereto have committed to provide Parent with the amounts set forth in the Commitment Letter for the purposes set forth therein (the debt financing contemplated in the Commitment Letter, together with, unless the context otherwise requires, any replacement financing, including any bank financing or debt securities issued in lieu thereof, the “Financing”)Company. As of the date of this Agreementhereof, the Commitment Letter is in full force and effect and has not been withdrawn, rescinded or terminated, or otherwise amended or modified in any respect and no amendment or modification is contemplated (other than as set forth in the fee letters with respect to flex rights and/or to add additional lenders, arrangers, bookrunners, syndication agents and similar entities who had not executed the Commitment Letter as of the date of this Agreement), and the Commitment Letter, in the form so delivered, constitutes the legal, valid and binding obligation ofof Parent and the Financing Sources to provide the Financing subject only to the satisfaction or waiver of the conditions precedent set forth in Section 5 of the term sheet attached as an exhibit to the Commitment Letter (the “Financing Conditions”). Parent has fully paid (or caused to be paid) any and all commitment fees and other amounts that are due and payable on or prior to the date of this Agreement in connection with the Financing. As of the date hereof, the commitment contained in the Commitment Letter has not been withdrawn or rescinded in any respect (and is enforceable againstno Financing Source has indicated an intent to so withdraw or rescind). The Commitment Letter has not been amended or modified in any respect prior to the date of this Agreement. Neither Parent nor any of its affiliates has entered into any agreement, side letter or other arrangement relating to the financing of the Closing Date Payments or the Transactions, other than as set forth in the Commitment Letter. As of the date hereof, Parent and, to the knowledge is not in breach of Parent, each Table of Contents any of the other parties thereto, subject, in each case, to the Enforceability Exceptions. Except as terms or conditions set forth in the Commitment Letter and except for any related commitment letters, engagement letters and fee letters related to the permanent financing described in the Commitment Letter, as of the date of this Agreement, there are no contracts, agreements, “side letters” or other arrangements to which Parent or any of its affiliates is a party relating to the Commitment Letter or the Financing.
(b) As of the date of this Agreement, no event has occurred which, with or without notice, lapse of time or both, constitutes, or would reasonably be expected to constitute, constitute a default or breach by Parent or, (or to the knowledge of Parent, any other party thereto, of any term of the Commitment Letter. As of the date of this Agreement, no Financing Source party ) or failure by Parent (or to the Commitment Letter has notified Parent knowledge of its termination or repudiation (or intent Parent, any other party thereto) to terminate or repudiate) any of the commitments under such Commitment Letter or intent not to provide the Financing. Assuming the truth and accuracy of the Company’s representations and warranties satisfy a condition precedent set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and assuming satisfaction of the conditions in Article VII (other than the conditions set forth in Sections 7.2(a) and 7.2(b) and those conditions that by their nature can only be satisfied at the Closing, but subject to the satisfaction or waiver thereof), therein. Parent has no reason to believe that (a) it or any other party to the Commitment Letter will be unable to satisfy on a timely basis any term of the Commitment Letter, (b) any of the Financing Conditions will not be satisfied or (c) the Financing will not be made available to Parent on the Closing Date. There are no conditions precedent or other contingencies related to the funding of the Financing on the Closing Date other than the Financing Conditions. The net proceeds of the Financing contemplated by the Commitment Letter and contained in the Commitment Letter will fail to be satisfied on the Closing Date or that the full amounts committed pursuant to the Commitment Letter will not be available to be funded on the Closing Date to the extent requiredLetter, when taken together with cash or cash equivalents held by of Parent and will, in the Company on aggregate, provide funds to Parent sufficient to consummate the Transactions, including the making of all Closing Date and the other sources of funds available to Parent Payments on the Closing Date, to refinance in full all amounts outstanding . Parent understands and acknowledges that under the Company Credit terms of this Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing.
(c) Parent acknowledges that its Parent’s obligation to consummate the Merger as set forth in this Agreement Transactions is not in any way contingent on upon or otherwise subject to Parent’s ability consummation of any financing arrangements, Parent’s obtaining of any financing or the availability, grant, provision or extension of any financing to obtain any financing, whether pursuant to the Commitment Letter or otherwiseParent.
(d) Parent has fully paid (or caused to be paid) any and all commitment fees or other fees required by the Commitment Letter to be paid on or before the date of this Agreement. Assuming (i) the funding of the full amount of the Financing in accordance with and subject to the satisfaction of the conditions in the Commitment Letter, (ii) the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and (iii) satisfaction of the conditions in Article VII, the aggregate proceeds from the Financing (after netting out applicable fees, expenses, original issue discount and similar premiums and chargers and after giving effect of the maximum amount of flex (including original issue discount flex) provided under the Commitment Letter) constitute all of the financing necessary to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing and, when taken together with cash or cash equivalents held by Parent and the Company on the Closing Date and the other sources of funds available to Parent on the Closing Date, will be sufficient in amount to pay the foregoing amounts in full. The only conditions precedent related to the obligations of the Financing Sources party to the Commitment Letter to fund the full amount of the Financing contemplated by the Commitment Letter are expressly set forth in the Commitment Letter.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Integrated Device Technology Inc)
Sufficient Funds. (a) Assuming the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and assuming satisfaction of the conditions in Article VII (other than the conditions set forth in Sections 7.2(a) and 7.2(b) and those conditions that by their nature can only be satisfied at At the Closing, but subject to the satisfaction or waiver thereof), Parent and Merger Sub will have available sufficient funds to them at consummate the Effective Time all funds Merger.
(b) Parent and commitments necessary Merger Sub have received and accepted and agreed to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing. Parent has delivered to the Company true and complete copies of (i) a fully executed debt commitment letter, dated as of December 6, 2010 (the date of this Agreement (including all exhibits “Commitment Letter”) from the lenders party thereto in effect on the date hereof) and (ii) the executed fee letter referenced therein, relating to fees with respect to the Financing contemplated by the commitment letter (collectively, the “Commitment LetterLenders”), by and among Parent and ) relating to the Financing Sources specified therein (with only fee amounts and other economic terms, and commitment of the rates and amounts included in the “flex” provisions, redacted, none of which redacted provisions would adversely affect the conditionality, enforceability, termination or amount of Lenders to provide the debt financing required to consummate the transactions contemplated by this Agreement. The debt financing required to consummate the transactions contemplated by this Agreement, including the Merger and Subsequent Merger, whether obtained pursuant to the arrangements contemplated by the commitment letter)Commitment Letter or through a substitute permanent financing arrangement which may involve a public offering of debt securities, is collectively referred to in this Agreement as the “Financing”. Pursuant A complete and correct copy of the executed Commitment Letter has been provided to the Company.
(c) The Financing, when funded in accordance with the Commitment Letter, will provide Parent with acquisition financing at the Effective Time, as applicable, sufficient to consummate the transactions contemplated by this Agreement on the terms contemplated by this Agreement and to pay the cash portion of the Merger Consideration. At the Closing, Parent and Merger Sub will have sufficient funds to (i) effect any repayment or refinancing of debt of Parent or the Company or their respective Subsidiaries contemplated by or necessary in connection with this Agreement (and the transactions contemplated hereby) or the Commitment Letter, and subject to the terms (ii) pay all transaction fees and conditions thereofexpenses of Parent, the Financing Sources party thereto have committed to provide Parent with the amounts set forth in the Commitment Letter for the purposes set forth therein Company and their respective Subsidiaries.
(the debt financing contemplated in the Commitment Letter, together with, unless the context otherwise requires, any replacement financing, including any bank financing or debt securities issued in lieu thereof, the “Financing”). As of the date of this Agreement, the d) The Commitment Letter is valid, binding and in full force and effect and has not been withdrawn, rescinded or terminated, or otherwise amended or modified in any respect and no amendment or modification is contemplated (other than as set forth in the fee letters with respect to flex rights and/or to add additional lenders, arrangers, bookrunners, syndication agents and similar entities who had not executed the Commitment Letter as of the date of this Agreement), and the Commitment Letter, in the form so delivered, constitutes the legal, valid and binding obligation of, and is enforceable against, Parent and, to the knowledge of Parent, each of the other parties thereto, subject, in each case, to the Enforceability Exceptions. Except as set forth in the Commitment Letter and except for any related commitment letters, engagement letters and fee letters related to the permanent financing described in the Commitment Letter, as of the date of this Agreement, there are no contracts, agreements, “side letters” or other arrangements to which Parent or any of its affiliates is a party relating to the Commitment Letter or the Financing.
(b) As of the date of this Agreement, no event has occurred which, with or without notice, lapse of time or both, constitutes, or would reasonably be expected to constitute, constitute a default or breach by Parent or, or an incurable failure to satisfy a condition precedent on the knowledge part of Parent, Merger Sub or Merger LLC under the terms and conditions of the Commitment Letter, other than any such default or breach that has been waived by the Lenders or otherwise cured in a timely manner by Parent, Merger Sub or Merger LLC to the satisfaction of the Lenders, as the case may be. The Commitment Letter has not been assigned, amended, restated or otherwise modified prior to the date of this Agreement, and the respective commitments contained in the Commitment Letter have not been withdrawn, modified or rescinded in any respect prior to the date of this Agreement. There are no conditions precedent (including any “flex” provision set forth in the associated fee letter) related to the funding of the full amount of the Financing, other party thereto, of any term of than as expressly set forth in or contemplated by the Commitment Letter. As of the date of this Agreementhereof, no Financing Source party to the Commitment Letter has notified Parent of its termination or repudiation (or intent to terminate or repudiate) Parent, Merger Sub and Merger LLC do not have any of the commitments under such Commitment Letter or intent not to provide the Financing. Assuming the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and assuming satisfaction of the conditions in Article VII (other than the conditions set forth in Sections 7.2(a) and 7.2(b) and those conditions that by their nature can only be satisfied at the Closing, but subject to the satisfaction or waiver thereof), Parent has no reason to believe that any of the conditions to the funding of the Financing contemplated by the Commitment Letter and contained in the Commitment Letter will fail to not be satisfied on the Closing Date or that the full amounts committed pursuant to the Commitment Letter Financing will not be available to be funded on Parent, Merger Sub or Merger LLC at the Closing Date to the extent requiredEffective Time. Parent, when taken together with cash or cash equivalents held by Parent Merger Sub and the Company on the Closing Date and the other sources of funds available to Parent on the Closing Date, to refinance Merger LLC have paid in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing.
(c) Parent acknowledges that its obligation to consummate the Merger as set forth in this Agreement is not contingent on Parent’s ability to obtain any financing, whether pursuant to the Commitment Letter or otherwise.
(d) Parent has fully paid (or caused to be paid) any and all commitment fees or other fees required by to be paid pursuant to the terms of the Commitment Letter to be paid on or before the date of this Agreement. Assuming (i) the funding of the full amount of the Financing in accordance with and subject to the satisfaction of the conditions in the Commitment Letter, (ii) the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and (iii) satisfaction of the conditions in Article VII, the aggregate proceeds from the Financing (after netting out applicable fees, expenses, original issue discount and similar premiums and chargers and after giving effect of the maximum amount of flex (including original issue discount flex) provided under the Commitment Letter) constitute all of the financing necessary to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing and, when taken together with cash or cash equivalents held by Parent and the Company on the Closing Date and the other sources of funds available to Parent on the Closing Date, will be sufficient in amount to pay the foregoing amounts in full. The only conditions precedent related to the obligations of the Financing Sources party to the Commitment Letter to fund the full amount of the Financing contemplated by the Commitment Letter are expressly set forth in the Commitment Letter.
Appears in 2 contracts
Sources: Merger Agreement (Nicor Inc), Merger Agreement (Agl Resources Inc)
Sufficient Funds. Parent and Merger Sub (adirectly or through one or more affiliates) Assuming the truth and accuracy will have all of the Company’s representations funds immediately available as and warranties set forth in Article III and compliance by when needed that are necessary to (i) consummate the Company with its obligations hereunderOffer at the Acceptance Time, in each case, in all material respects, and assuming satisfaction of (ii) consummate the conditions in Article VII (other than the conditions set forth in Sections 7.2(a) and 7.2(b) and those conditions that by their nature can only be satisfied Merger at the Closing, but subject to (iii) otherwise perform their respective obligations under this Agreement and (iv) pay any fees, expenses or other amounts payable by Parent or Merger Sub in connection with the satisfaction or waiver thereofconsummation of the transactions contemplated by this Agreement (the “Intended Purposes”), . Parent and Merger Sub will have available to them at the Effective Time all funds and commitments necessary to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing. Parent has delivered provided to the Company a true and complete copies copy of (i) a fully executed debt commitment letter, dated as of the date of this Agreement hereof (including all exhibits thereto in effect on the date hereof) exhibits, schedules, annexes, supplements, amendments and (ii) the executed fee letter referenced thereinjoinders thereto, relating to fees with respect to the Financing contemplated by the commitment letter (collectively, the “Commitment Letter”), by and among Parent from the lenders party thereto (collectively, the “Lenders”) and the Financing Sources specified therein executed fee letter relating thereto (with only provided that the fee amounts amounts, pricing caps and other economic terms, and the rates and amounts included in the “market flex” provisionsprovisions (but not covenants), may be redacted, none of which redacted provisions would could adversely affect the conditionality, enforceability, termination or amount of the debt financing contemplated by Debt Financing) (including all exhibits, schedules, annexes, supplements, amendments and joinders thereto, collectively, the commitment letter“Fee Letter”). Pursuant to the Commitment Letter, and subject to the terms and conditions thereof, the Financing Sources party thereto Lenders have committed to provide Guarantor and Parent with the amounts set forth in the Commitment Letter for the purposes set forth therein (the debt “Debt Financing”) for purposes of financing contemplated in the Commitment Letter, together with, unless the context otherwise requires, any replacement financing, including any bank financing or debt securities issued in lieu thereofOffer, the “Financing”)Merger and the other transactions contemplated by this Agreement. As of the date of this Agreementhereof, the Commitment Letter is in full force and effect and has not been withdrawnconstitutes a valid and binding obligation of Guarantor and Parent, rescinded and to the knowledge of Parent and Merger Sub, the Lenders, enforceable in accordance with its terms (except that (x) such enforcement may be subject to applicable bankruptcy, insolvency, fraudulent transfer, examinership, reorganization, moratorium or terminatedother similar Laws, now or otherwise amended or modified hereafter in effect, relating to creditors’ rights generally and (y) equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any respect and no amendment or modification is contemplated (other than as set forth in the fee letters with respect to flex rights and/or to add additional lenders, arrangers, bookrunners, syndication agents and similar entities who had not executed the Commitment Letter as proceeding therefor may be brought). As of the date of this Agreement)hereof, and other than the Commitment Letter, in the form so delivered, constitutes the legal, valid and binding obligation of, and is enforceable againstnone of Guarantor, Parent andor Merger Sub has entered into any side letters, Contracts or other arrangements pursuant to which any Person has the knowledge of Parentright to amend, each restate or otherwise modify the Commitment Letter in a manner that could reasonably be expected to adversely affect the availability at the Acceptance Time or the Closing of the other parties thereto, subject, in each case, to the Enforceability ExceptionsDebt Financing. Except as set forth in the Commitment Letter and except for any related commitment letters, engagement letters and fee letters related to the permanent financing described in the Commitment Fee Letter, as of the date of this Agreement, there are no contracts, agreements, conditions or contingencies (including pursuant to any “side lettersmarket flex” or other arrangements provisions in the Fee Letter) to which Parent or any of its affiliates is a party relating to funding the Debt Financing under the Commitment Letter in an amount necessary, when taken together with other funds available to Parent and Merger Sub to fund the Intended Purposes, and the Commitment Letter has not been amended, restated or otherwise modified in any manner prior to the date hereof and the respective commitments contained in the Commitment Letter have not been terminated, reduced, withdrawn or rescinded in any respect prior to the date hereof. The Commitment Letter, the Fee Letter, the engagement letter and fee credit letter related thereto constitute the entire and complete agreement between the parties thereto with respect to the Debt Financing.
(b) . As of the date hereof, (i) assuming the accuracy of this Agreementthe representations and warranties set forth in Article III, no event has occurred which, with or without notice, lapse of time or both, constitutes, or would reasonably be expected to constitute, constitute (A) a default or breach by Guarantor or Parent under any term of, or (B) a failure to satisfy any condition by Guarantor or Parent or, to the knowledge of ParentParent and Merger Sub, any other party theretoLender under, of any term of the Commitment Letter. As of the date of this Agreement, no Financing Source party to the Commitment Letter has notified Parent of its termination or repudiation and (or intent to terminate or repudiateii) any of assuming the commitments under such Commitment Letter or intent not to provide the Financing. Assuming the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and assuming satisfaction of the conditions in Article VII (Minimum Condition and the satisfaction, or waiver by the Merger Sub, of the other than the conditions set forth in Sections 7.2(a) and 7.2(b) and those conditions that by their nature can only be satisfied at the ClosingAnnex I, but subject to the satisfaction or waiver thereof), neither Parent nor Merger Sub has no any reason to believe that (x) any of the conditions condition or contingency related to the funding of the full amount of the Debt Financing contemplated by the Commitment Letter and contained in the Commitment Letter will fail to not be satisfied on at the Closing Date Acceptance Time or that (y) the full amounts committed pursuant to amount of the Commitment Letter Debt Financing will not be available to be funded on Guarantor and Parent at the Closing Date to the extent required, when taken together with cash Acceptance Time. Guarantor or cash equivalents held by Parent and the Company on the Closing Date and the other sources of funds available to Parent on the Closing Date, to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing.
(c) Parent acknowledges that its obligation to consummate the Merger as set forth in this Agreement is not contingent on Parent’s ability to obtain any financing, whether pursuant to the Commitment Letter or otherwise.
(d) Parent has fully paid (paid, or caused to be paid) , any and all commitment fees or other fees required by the Commitment Letter to be paid on or before prior to the date of this Agreement. Assuming (i) the funding of the full amount of the Financing in accordance with and subject to the satisfaction of the conditions in the Commitment Letter, (ii) the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and (iii) satisfaction of the conditions in Article VII, the aggregate proceeds from the Financing (after netting out applicable fees, expenses, original issue discount and similar premiums and chargers and after giving effect of the maximum amount of flex (including original issue discount flex) provided under the Commitment Letter) constitute all of the financing necessary to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing and, when taken together with cash or cash equivalents held by Parent and the Company on the Closing Date and the other sources of funds available to Parent on the Closing Date, will be sufficient in amount to pay the foregoing amounts in full. The only conditions precedent related to the obligations of the Financing Sources party to the Commitment Letter to fund the full amount of the Financing contemplated by the Commitment Letter are expressly set forth in the Commitment Letterhereof.
Appears in 2 contracts
Sources: Merger Agreement (Salix Pharmaceuticals LTD), Merger Agreement (Valeant Pharmaceuticals International, Inc.)
Sufficient Funds. Parent has delivered to the Company true, complete and correct copies as of the date of this Agreement of an executed commitment letter (aas the same may be amended or replaced in accordance with Section 5.13, the “Debt Financing Commitment”), pursuant to which the Debt Financing Sources have agreed, subject to the terms and conditions thereof, to provide or cause to be provided the debt amounts set forth therein (the “Debt Financing”). As of the date hereof, the Debt Financing Commitment is in full force and effect and is the legal, valid and binding obligation of Parent and any Affiliates of Parent party thereto (and, to Parent’s knowledge, the Debt Financing Sources) and enforceable against Parent and any Affiliates of Parent (and, to Parent’s knowledge, the Debt Financing Sources) in accordance with its terms, subject to the Bankruptcy and Equity Exception. As of the date hereof, the Debt Financing Commitment has not been amended or modified and the commitments contained in the Debt Financing Commitment have not been withdrawn or rescinded in any respect. Assuming the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and assuming satisfaction of the conditions in Article VII (other than the conditions set forth in Sections 7.2(a) and 7.2(b) and those conditions that by their nature can only be satisfied at the Closing, but subject to the satisfaction or waiver thereof), Parent and Merger Sub will have available to them at the Effective Time all funds and commitments necessary to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing. Parent has delivered to the Company true and complete copies of (i) a fully executed debt commitment letter, dated as of the date of this Agreement (including all exhibits thereto in effect on the date hereof) and (ii) the executed fee letter referenced therein, relating to fees with respect to the Financing contemplated by the commitment letter (collectively, the “Commitment Letter”), by and among Parent and the Financing Sources specified therein (with only fee amounts and other economic terms, and the rates and amounts included in the “flex” provisions, redacted, none of which redacted provisions would adversely affect the conditionality, enforceability, termination or amount of the debt financing contemplated by the commitment letter). Pursuant to the Commitment Letter, and subject to the terms and conditions thereof, the Financing Sources party thereto have committed to provide Parent with the amounts set forth in the Commitment Letter for the purposes set forth therein (the debt financing contemplated in the Commitment Letter, together with, unless the context otherwise requires, any replacement financing, including any bank financing or debt securities issued in lieu thereof, the “Financing”). As of the date of this Agreement, the Commitment Letter is in full force and effect and has not been withdrawn, rescinded or terminated, or otherwise amended or modified in any respect and no amendment or modification is contemplated (other than as set forth in the fee letters with respect to flex rights and/or to add additional lenders, arrangers, bookrunners, syndication agents and similar entities who had not executed the Commitment Letter as of the date of this Agreement), and the Commitment Letter, in the form so delivered, constitutes the legal, valid and binding obligation of, and is enforceable against, Parent and, to the knowledge of Parent, each of the other parties thereto, subject, in each case, to the Enforceability Exceptions. Except as set forth in the Commitment Letter and except for any related commitment letters, engagement letters and fee letters related to the permanent financing described in the Commitment Letter3, as of the date of this Agreement, there are no contracts, agreements, “side letters” or other arrangements to which Parent or any of its affiliates is a party relating to the Commitment Letter or the Financing.
(b) As of the date of this Agreementhereof, no event has occurred which, with or without notice, lapse of time or both, constitutes, or would reasonably be expected to constitute, constitute a default or breach on the part of the Parent Parties and to the knowledge of Parent, any other party thereto, under the Debt Financing Commitment and no Parent Party has any reason to believe that it will be unable to satisfy on a timely basis any term or condition of closing to be satisfied by Parent orit (and, to the knowledge of Parent, any other party thereto, of any term of the Commitment Letter. As of the date of this Agreement, no Financing Source party to the Commitment Letter has notified Parent of its termination or repudiation (or intent to terminate or repudiate) any of the commitments under such Commitment Letter or intent not to provide the Financing. Assuming the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and assuming satisfaction of the conditions in Article VII (other than the conditions set forth in Sections 7.2(a) and 7.2(b) and those conditions that by their nature can only be satisfied at the Closing, but subject to the satisfaction or waiver thereof), Parent has no reason to believe that any of the conditions to the funding of the Financing contemplated by the Commitment Letter and contained in the Debt Financing Commitment Letter will fail on or prior to be satisfied on the Closing Date or that the full amounts committed pursuant to the Commitment Letter will not be available to be funded on the Closing Date to the extent required, when taken together with cash or cash equivalents held by Parent and the Company on the Closing Date and the other sources of funds available to Parent on the Closing Date, . There are no conditions precedent related to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing.
(c) Parent acknowledges that its obligation to consummate the Merger as set forth in this Agreement is not contingent on Parent’s ability to obtain any financing, whether pursuant to the Commitment Letter or otherwise.
(d) Parent has fully paid (or caused to be paid) any and all commitment fees or other fees required by the Commitment Letter to be paid on or before the date of this Agreement. Assuming (i) the funding of the full amount of the Debt Financing in accordance with and subject to the satisfaction of the conditions in the Commitment Letter, (ii) the truth and accuracy of the Company’s representations and warranties other than as set forth in Article III and compliance or contemplated by the Company with its obligations hereunder, in each case, in all material respects, and (iii) satisfaction Debt Financing Commitment. As of the conditions in Article VIIdate hereof, the aggregate proceeds from the Financing there are no side letters or other Contracts (after netting out applicable feesexcept for customary fee letters, expenses, original issue discount true and similar premiums and chargers and after giving effect complete copies of the maximum amount of flex (including original issue discount flex) which have been provided under the Commitment Letter) constitute all of the financing necessary to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger Company, except that financial and the Financing and, when taken together with cash or cash equivalents held by Parent and the Company on the Closing Date and the other sources of funds available to Parent on the Closing Date, will economic terms not affecting conditionality may be sufficient in amount to pay the foregoing amounts in full. The only conditions precedent redacted) related to the obligations funding of the Financing Sources party to the Commitment Letter to fund the full amount of the Debt Financing contemplated by the Commitment Letter are expressly other than as set forth in the Commitment LetterDebt Financing Commitment. Subject to the terms and conditions set forth in the Debt Financing Commitment, the aggregate proceeds contemplated by the Debt Financing Commitment, together with Parent’s available cash, will be sufficient to pay the Cash Consideration, the Fractional Share Consideration and all amounts required to be paid in connection with the consummation of the Transactions and any other related fees and expenses. The obligations of Parent and Merger Sub under this Agreement are not subject to any conditions regarding Parent’s, Merger Sub’s, their respective Affiliates’ or any other Person’s (including, for the avoidance of doubt, the Company’s or any Subsidiary of the Company’s) ability to obtain the Debt Financing.
Appears in 2 contracts
Sources: Merger Agreement (Pebblebrook Hotel Trust), Merger Agreement (LaSalle Hotel Properties)
Sufficient Funds. (a) Assuming the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance The aggregate proceeds contemplated by the Company Financing (as defined below), together with its obligations hereunderParent’s current cash on hand and existing credit facility, in each case, in all material respects, and assuming satisfaction of the conditions in Article VII (other than the conditions set forth in Sections 7.2(a) and 7.2(b) and those conditions that by their nature can only be satisfied will provide Parent with sufficient funds at the Closing, but subject to the satisfaction or waiver thereof), Parent Acceptance Time and Merger Sub will have available to them at the Effective Time all funds to cause the Purchaser to accept for payment the validly tendered Shares and commitments necessary to refinance in full all amounts outstanding under consummate the Merger, as applicable, and to repay the indebtedness of the Company Credit Agreement, outstanding as of the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the FinancingEffective Time. Parent has delivered to the Company true and complete copies of executed commitment letters (i) a fully executed debt commitment letter, dated as of the date of this Agreement (including all exhibits thereto in effect on the date hereof) and (ii) the executed fee letter referenced therein, relating to fees with respect to the Financing contemplated by the commitment letter (collectively, the “Commitment LetterFinancing Commitments”), by and among Parent and pursuant to which the Financing Sources specified therein (with parties thereto have agreed, subject only fee amounts and other economic terms, and the rates and amounts included in the “flex” provisions, redacted, none of which redacted provisions would adversely affect the conditionality, enforceability, termination or amount of the debt financing contemplated by the commitment letter). Pursuant to the Commitment Letter, and subject to the terms and conditions thereof, the Financing Sources party thereto have committed to provide Parent with the amounts set forth in the Commitment Letter for the purposes precedent set forth therein (the debt “Financing Conditions”), to provide or cause to be provided the bank financing set forth therein for the purposes of financing the transactions contemplated in the Commitment Letter, together with, unless the context otherwise requires, any replacement financinghereby, including any bank financing or debt securities issued in lieu thereof, the Offer and the Merger (the “Financing”). As of the date of this Agreement, the Commitment Letter is The Financing Commitments are in full force and effect and has not been withdrawn, rescinded or terminated, or otherwise amended or modified in any respect and no amendment or modification is contemplated (other than as set forth in the fee letters with respect to flex rights and/or to add additional lenders, arrangers, bookrunners, syndication agents and similar entities who had not executed the Commitment Letter as of the date of this Agreement), and the Commitment Letter, in the form so delivered, constitutes the are legal, valid and binding obligation of, obligations of Parent and is enforceable against, Parent the Purchaser and, to the knowledge of Parent, each of the other parties thereto, subject, in each case, to the Enforceability Exceptions. Except as set forth in the Commitment Letter and except for any related commitment letters, engagement letters and fee letters There are no conditions precedent or other contingencies related to the permanent financing described in the Commitment Letterfunding or investing, as applicable, of the date full amount of this Agreement, there are no contracts, agreements, “side letters” the Financing other than the Financing Conditions. Parent or the Purchaser have fully paid any and all commitment fees or other arrangements to which Parent fees in connection with the Financing Commitments that are payable on or any of its affiliates is a party relating prior to the Commitment Letter or the Financing.
(b) date hereof. As of the date of this Agreementhereof, no event has occurred which, with or without notice, lapse of time or both, constitutes, or would reasonably be expected to constitute, constitute a default or breach on the part of Parent or the Purchaser under any Financing Commitment, and, as of the date hereof, neither Parent nor the Purchaser has any reasonable basis to believe that it will be unable to satisfy on a timely basis any material term or condition to be satisfied by Parent or, it in any of the Financing Commitments on or prior to the knowledge Acceptance Time. Parent has, together with Parent’s current cash on hand and existing credit facility, sufficient funds available to timely fund each of Parent, any other party thereto, of any the draws under the Note in accordance with the term of the Commitment Letter. As of the date of this Agreement, no Financing Source party to the Commitment Letter has notified Parent of its termination or repudiation (or intent to terminate or repudiate) any of the commitments under such Commitment Letter or intent not to provide the Financing. Assuming the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and assuming satisfaction of the conditions in Article VII (other than the conditions set forth in Sections 7.2(a) and 7.2(b) and those conditions that by their nature can only be satisfied at the Closing, but subject to the satisfaction or waiver thereof), Parent has no reason to believe that any of the conditions to the funding of the Financing contemplated by the Commitment Letter and contained in the Commitment Letter will fail to be satisfied on the Closing Date or that the full amounts committed pursuant to the Commitment Letter will not be available to be funded on the Closing Date to the extent required, when taken together with cash or cash equivalents held by Parent and the Company on the Closing Date and the other sources of funds available to Parent on the Closing Date, to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the FinancingNote.
(c) Parent acknowledges that its obligation to consummate the Merger as set forth in this Agreement is not contingent on Parent’s ability to obtain any financing, whether pursuant to the Commitment Letter or otherwise.
(d) Parent has fully paid (or caused to be paid) any and all commitment fees or other fees required by the Commitment Letter to be paid on or before the date of this Agreement. Assuming (i) the funding of the full amount of the Financing in accordance with and subject to the satisfaction of the conditions in the Commitment Letter, (ii) the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and (iii) satisfaction of the conditions in Article VII, the aggregate proceeds from the Financing (after netting out applicable fees, expenses, original issue discount and similar premiums and chargers and after giving effect of the maximum amount of flex (including original issue discount flex) provided under the Commitment Letter) constitute all of the financing necessary to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing and, when taken together with cash or cash equivalents held by Parent and the Company on the Closing Date and the other sources of funds available to Parent on the Closing Date, will be sufficient in amount to pay the foregoing amounts in full. The only conditions precedent related to the obligations of the Financing Sources party to the Commitment Letter to fund the full amount of the Financing contemplated by the Commitment Letter are expressly set forth in the Commitment Letter.
Appears in 2 contracts
Sources: Merger Agreement (Complete Genomics Inc), Merger Agreement (Complete Genomics Inc)
Sufficient Funds. (a) Assuming the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and assuming satisfaction of the conditions in Article VII (other than the conditions set forth in Sections 7.2(a) and 7.2(b) and those conditions that by their nature can only be satisfied at the Closing, but subject to the satisfaction or waiver thereof), Parent and Merger Sub will have available to them at the Effective Time all funds and commitments necessary to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing. Parent has delivered to the Company true an accurate and complete copies copy of (i) a fully executed debt commitment letter, together with all schedules and exhibits thereto, dated as of the date of this Agreement November 7, 2013 (including all exhibits thereto in effect on the date hereof) and (ii) the executed fee letter referenced therein, relating to fees with respect to the Financing contemplated by the commitment letter (collectively, the “Commitment Letter”), by and among between Parent and the Financing Sources specified therein Jefferies Finance LLC (with only fee amounts and other economic terms“Jefferies”), and the rates and amounts included in the “flex” provisionspursuant to which Jefferies has agreed, redacted, none of which redacted provisions would adversely affect the conditionality, enforceability, termination or amount of the debt financing contemplated by the commitment letter). Pursuant to the Commitment Letter, and subject to the terms and conditions thereof, the Financing Sources party thereto have committed to provide Parent with the amounts set forth in the Commitment Letter for the purposes set forth therein (the “Financing Conditions”), to provide the debt financing contemplated in set forth therein (the Commitment Letter, together with, unless “Financing Commitment”) for the context otherwise requires, any replacement financing, including any bank purpose of financing or debt securities issued in lieu thereofthe Transactions, the “Financing”). As repayment or refinancing of certain of the date of this Agreement, Company’s and the Company Subsidiary’s existing indebtedness and related fees and expenses.
(b) The Financing Commitment Letter is in full force and effect and has not been withdrawn, rescinded or terminated, or otherwise amended or modified in any respect and no amendment or modification is contemplated (other than as set forth in the fee letters with respect to flex rights and/or to add additional lenders, arrangers, bookrunners, syndication agents and similar entities who had not executed the Commitment Letter as of the date of this Agreement), hereof and the Commitment Letter, in the form so delivered, constitutes the is a legal, valid and binding obligation ofof Parent and Jefferies, enforceable against Parent and is enforceable againstJefferies in accordance with its terms and conditions, Parent and, subject to the knowledge of Parent, each of the other parties thereto, subject, in each case, to the Enforceability Exceptions. Except as set forth in the Commitment Letter Bankruptcy and except for any related commitment letters, engagement letters and fee letters related to the permanent financing described in the Commitment Letter, as of the date of this Agreement, there are no contracts, agreements, “side letters” or other arrangements to which Parent or any of its affiliates is a party relating to the Commitment Letter or the Financing.
(b) As of the date of this Agreement, no event has occurred which, with or without notice, lapse of time or both, constitutes, or would reasonably be expected to constitute, a default or breach by Parent or, to the knowledge of Parent, any other party thereto, of any term of the Commitment LetterEquity Exception. As of the date of this Agreementhereof, no the Financing Source party to the Commitment Letter has notified Parent of its termination not been amended, supplemented or repudiation (or intent to terminate or repudiate) modified in any respect, and none of the commitments under such Commitment Letter contained therein has been withdrawn, terminated, repudiated or intent not to provide the Financingrescinded in any respect. Assuming the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and assuming satisfaction of the conditions in Article VII (other than the conditions set forth in Sections 7.2(a) and 7.2(b) and those conditions that by their nature can only be satisfied at the Closing, but subject to the satisfaction or waiver thereof), Parent has no reason to believe that any of the conditions to the funding of the Financing contemplated by the Commitment Letter and contained in the Commitment Letter will fail to be satisfied on the Closing Date or that the full amounts committed pursuant to the Commitment Letter will not be available to be funded on the Closing Date to the extent required, when taken together with cash or cash equivalents held by Parent and the Company on the Closing Date and the other sources of funds available to Parent on the Closing Date, to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing.
(c) Parent acknowledges that its obligation to consummate the Merger as set forth in this Agreement is not contingent on Parent’s ability to obtain any financing, whether pursuant to the Commitment Letter or otherwise.
(d) Parent has fully paid (or caused to be paid) any and all commitment fees or other fees required by in connection with the Financing Commitment Letter to be paid that are payable on or before prior to the date of this Agreementhereof. Assuming (i) There are no conditions precedent or other contingencies related to the funding of the full amount of the Financing in accordance with and subject to Commitment at the satisfaction Closing, other than the Financing Conditions. As of the conditions in the Commitment Letterdate hereof, (ii) the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and (iii) satisfaction of the conditions in Article VII, the aggregate proceeds from the Financing (after netting out applicable fees, expenses, original issue discount and similar premiums and chargers and after giving effect of the maximum amount of flex (including original issue discount flex) provided under the Commitment Letter) constitute all of the financing necessary Parent has no reason to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the believe that it or Merger and the Financing and, when taken together with cash or cash equivalents held by Parent and the Company on the Closing Date and the other sources of funds available to Parent on the Closing Date, Sub will be sufficient in amount unable to pay the foregoing amounts in full. The only conditions precedent related to the obligations of the Financing Sources party to the Commitment Letter to fund the full amount of the Financing contemplated by the Commitment Letter are expressly satisfy on a timely basis any term or condition set forth in the Financing Commitment Letterthat is required to be satisfied by it on or prior to the Closing.
(c) At the Acceptance Time and the Effective Time, Parent will have available, and will make available to Merger Sub (through Intermediary), all of the funds necessary as of such time to consummate the Transactions, including Parent’s, Intermediary’s and Merger Sub’s payment obligations under Article 4 and to pay all related fees and expenses. Parent and Merger Sub acknowledge that their obligations under this Agreement are not contingent or conditioned in any manner on obtaining any funds or financing.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Salix Pharmaceuticals LTD)
Sufficient Funds. (a) Assuming the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and assuming satisfaction of the conditions in Article VII (other than the conditions set forth in Sections 7.2(a) and 7.2(b) and those conditions that by their nature can only be satisfied at the Closing, but subject to the satisfaction or waiver thereof), Parent and Merger Sub will have available to them at the Effective Time all funds and commitments necessary to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing. Parent has delivered to the Company true and complete copies of (i) a fully executed debt commitment letterthe Wells Fargo Century Inc. Letter, dated as of the date hereof, by and ▇▇▇▇▇ Wells Fargo Century Inc., Parent and Merger Sub (the "First Debt Lett▇▇"), the Ore Hill Fund L.P. Letter, dated as of this Agreement (including all exhibits thereto in effect on the date hereof) and (ii) the executed fee letter referenced therein, relating to fees with respect to the Financing contemplated by the commitment letter (collectively, the “Commitment Letter”), by and among Ore Hill Fund L.P., Parent and Merger Sub (the "Second Debt Letter") and the Chase Capital Letter, dated as of the date hereof, by and among the Chase Capital business unit of JPMorgan Chase & Co., Parent and Merger Sub (the "Third Debt Letter" and, together with the First Debt Letter and the Second Debt Letter, the "Debt Commitment Letters") and the commitment letters, dated as of the date hereof, between Merger Sub and The Hidary Group, LLC, Seneca Capital Investments LLC, Boxing 2000 LLC, G▇▇▇▇▇ Capital and Middlegate Securities Ltd. (the "Equity Commitment ▇▇▇▇▇rs" and, together with the Debt Commitment Letters, the "Commitment Letters", the financing to be provided thereunder is referred to herein as the "Financing"). The aggregate proceeds of the Financing Sources specified therein (with only fee amounts and other economic termsare in an amount sufficient to consummate the Transactions, including to pay the aggregate Merger Consideration, and the rates to pay all related fees and amounts included in the “flex” provisions, redacted, none of which redacted provisions would adversely affect the conditionality, enforceability, termination or amount of the debt financing contemplated by the commitment letter). Pursuant to the Commitment Letter, and subject to the terms and conditions thereof, the Financing Sources party thereto have committed to provide Parent with the amounts set forth in the Commitment Letter for the purposes set forth therein (the debt financing contemplated in the Commitment Letter, together with, unless the context otherwise requires, any replacement financing, including any bank financing or debt securities issued in lieu thereof, the “Financing”)expenses. As of the date hereof, none of this Agreement, the Commitment Letter is in full force and effect and Letters has not been withdrawn, rescinded or terminated, or otherwise amended or modified in any respect and no amendment or modification is contemplated (other than as set forth in the fee letters with respect to flex rights and/or to add additional lenders, arrangers, bookrunners, syndication agents and similar entities who had not executed the Commitment Letter as of the date of this Agreement), and the Commitment Letter, in the form so delivered, constitutes the legal, valid and binding obligation of, and is enforceable against, Parent and, to the knowledge of Parent, each of the other parties thereto, subject, in each case, to the Enforceability Exceptions. Except as set forth in the Commitment Letter and except for any related commitment letters, engagement letters and fee letters related to the permanent financing described in the Commitment Letter, as of the date of this Agreement, there are no contracts, agreements, “side letters” conditions precedent or other arrangements contingencies related to which Parent or any of its affiliates is a party relating to the Commitment Letter or the Financing.
(b) As of the date of this Agreement, no event has occurred which, with or without notice, lapse of time or both, constitutes, or would reasonably be expected to constitute, a default or breach by Parent or, to the knowledge of Parent, any other party thereto, of any term of the Commitment Letter. As of the date of this Agreement, no Financing Source party to the Commitment Letter has notified Parent of its termination or repudiation (or intent to terminate or repudiate) any of the commitments under such Commitment Letter or intent not to provide the Financing. Assuming the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and assuming satisfaction of the conditions in Article VII (other than the conditions set forth in Sections 7.2(a) and 7.2(b) and those conditions that by their nature can only be satisfied at the Closing, but subject to the satisfaction or waiver thereof), Parent has no reason to believe that any of the conditions to the funding of the Financing contemplated by the Commitment Letter and contained in the Commitment Letter will fail to be satisfied on the Closing Date or that the full amounts committed pursuant to the Commitment Letter will not be available to be funded on the Closing Date to the extent required, when taken together with cash or cash equivalents held by Parent and the Company on the Closing Date and the other sources of funds available to Parent on the Closing Date, to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing.
(c) Parent acknowledges that its obligation to consummate the Merger as set forth in this Agreement is not contingent on Parent’s ability to obtain any financing, whether pursuant to the Commitment Letter or otherwise.
(d) Parent has fully paid (or caused to be paid) any and all commitment fees or other fees required by the Commitment Letter to be paid on or before the date of this Agreement. Assuming (i) the funding of the full amount of the Financing in accordance with and subject to the satisfaction of the conditions in the Commitment LetterFinancing, (ii) the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and (iii) satisfaction of the conditions in Article VII, the aggregate proceeds from the Financing (after netting out applicable fees, expenses, original issue discount and similar premiums and chargers and after giving effect of the maximum amount of flex (including original issue discount flex) provided under the Commitment Letter) constitute all of the financing necessary to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing and, when taken together with cash or cash equivalents held by Parent and the Company on the Closing Date and the other sources of funds available to Parent on the Closing Date, will be sufficient in amount to pay the foregoing amounts in full. The only conditions precedent related to the obligations of the Financing Sources party to the Commitment Letter to fund the full amount of the Financing contemplated by the Commitment Letter are expressly than those set forth in the Commitment LetterLetters. Subject to receipt of the aggregate proceeds of the Financing, at the Effective Time, Parent and Merger Sub will have sufficient cash and cash equivalent resources available to pay the aggregate Merger Consideration pursuant to the Transactions.
Appears in 2 contracts
Sources: Merger Agreement (Horowitz Seth), Merger Agreement (Everlast Worldwide Inc)
Sufficient Funds. Section 5.9 of the Parent Disclosure Schedule sets forth complete and accurate copies of (a) Assuming the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and assuming satisfaction of the conditions in Article VII executed commitment letters (other than the conditions set forth in Sections 7.2(a) and 7.2(b) and those conditions that by their nature can only be satisfied at the Closing, but subject to the satisfaction or waiver thereof), Parent and Merger Sub will have available to them at the Effective Time all funds and commitments necessary to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing. Parent has delivered to the Company true and complete copies of (i) a fully executed debt commitment letter, dated as of the date of this Agreement (including all exhibits thereto in effect on the date hereof) and (ii) the executed fee letter referenced therein, relating to fees with respect to the Financing contemplated by the commitment letter (collectively, the “Debt Commitment LetterLetters”) from the lenders named therein (the “Lenders”), by and among Parent and pursuant to which the Financing Sources specified therein (with only fee amounts and other economic termsLenders have committed, and the rates and amounts included in the “flex” provisions, redacted, none of which redacted provisions would adversely affect the conditionality, enforceability, termination or amount of the debt financing contemplated by the commitment letter). Pursuant to the Commitment Letter, and subject to the terms and conditions thereofset forth therein, the Financing Sources party thereto have committed to provide Parent with lend the amounts set forth in the Commitment Letter therein to Parent for the purposes purpose of funding the transactions contemplated by this Agreement (the “Debt Financing”) and (b) executed commitment letter (the “Equity Commitment Letter” and, together with the Debt Commitment Letters, the “Financing Commitments”) from the investors named therein (the “Investors”), pursuant to which the Investors have committed to invest the amounts set forth therein, subject to the terms and conditions set forth therein (the debt financing contemplated in the Commitment Letter“Equity Financing” and, together with, unless with the context otherwise requires, any replacement financing, including any bank financing or debt securities issued in lieu thereofDebt Financing, the “Financing”). The Equity Commitment Letter provides, and will continue to provide, that the Company is a third-party beneficiary thereof. As of the date hereof, and as of the Closing, the funds provided by the Financing, together with Parent’s cash on hand (as of the date hereof and as of the Effective Time), are sufficient to fully fund all of Parent’s and Sub’s obligations under this Agreement, including payment of the aggregate Merger Consideration, Option Consideration and Performance Award Consideration and payment of all fees and expenses related to the transactions contemplated by this Agreement and any refinancing of indebtedness of Parent or the Company or their respective Subsidiaries in connection therewith. Except as set forth in the Financing Commitments, there are no conditions precedent to the respective obligations of the Lenders to fund the Debt Financing or of the Investors to fund the Equity Financing. There are no other agreements, side letters or arrangements that would permit the Lenders to reduce the amount of the Debt Financing, that would permit the Investors to reduce the amount of the Equity Financing or that could otherwise affect the availability of the Debt Financing or the Equity Financing. The Equity Commitment Letter has been duly executed and delivered by, and is a legal, valid and binding obligation of, Parent and the Investor or Investors party thereto, and each of the Debt Commitment Letters has been duly executed and delivered by, and is a legal, valid and binding obligation of, Parent and all other parties thereto. As of the date hereof, each of the Financing Commitments is in full force and effect and has not been withdrawn, rescinded withdrawn or terminated, terminated or otherwise amended or modified in any respect respect. All commitment and no amendment other fees required to be paid under the Financing Commitments on or modification is contemplated (other than as set forth in prior to the fee letters with respect to flex rights and/or to add additional lendersdate hereof have been paid and, arrangers, bookrunners, syndication agents and similar entities who had not executed the Commitment Letter as of the date of this Agreement), and the Commitment Letter, in the form so delivered, constitutes the legal, valid and binding obligation of, and is enforceable against, Parent andhereof, to the knowledge of Parent, each there is no fact or occurrence existing that would make any of the other parties thereto, subject, in each case, to the Enforceability Exceptions. Except as statements (including assumptions) set forth in any of the Commitment Letter and except for any related commitment lettersFinancing Commitments inaccurate. Assuming no breach or default by the Company under this Agreement, engagement letters and fee letters related there is no fact or occurrence known to the permanent financing described in the Commitment Letter, Parent or Sub as of the date of this Agreement, there are no contracts, agreements, “side letters” or other arrangements Agreement that would cause the conditions to which Parent or any of its affiliates is a party relating to the Commitment Letter or the Financing.
(b) As funding of the date of this Agreement, no event has occurred which, with or without notice, lapse of time or both, constitutes, or would reasonably be expected to constitute, a default or breach by Parent or, to the knowledge of Parent, any other party thereto, of any term of the Commitment Letter. As of the date of this Agreement, no Financing Source party to the Commitment Letter has notified Parent of its termination or repudiation (or intent to terminate or repudiate) any of the commitments under such Commitment Letter or intent not to provide the Financing. Assuming the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and assuming satisfaction of the conditions in Article VII (other than the conditions set forth in Sections 7.2(a) and 7.2(b) and those conditions that by their nature can only be satisfied at or before the ClosingEffective Time, but subject to the satisfaction or waiver thereof), and neither Parent nor Sub has no reason to believe that it will be unable to satisfy on a timely basis any term or condition of the conditions closing to the funding of the Financing contemplated be satisfied by the Commitment Letter and it contained in the Commitment Letter will fail to be satisfied on the Closing Date or that the full amounts committed pursuant to the Commitment Letter will not be available to be funded on the Closing Date to the extent required, when taken together with cash or cash equivalents held by Parent and the Company on the Closing Date and the other sources of funds available to Parent on the Closing Date, to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the FinancingCommitments.
(c) Parent acknowledges that its obligation to consummate the Merger as set forth in this Agreement is not contingent on Parent’s ability to obtain any financing, whether pursuant to the Commitment Letter or otherwise.
(d) Parent has fully paid (or caused to be paid) any and all commitment fees or other fees required by the Commitment Letter to be paid on or before the date of this Agreement. Assuming (i) the funding of the full amount of the Financing in accordance with and subject to the satisfaction of the conditions in the Commitment Letter, (ii) the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and (iii) satisfaction of the conditions in Article VII, the aggregate proceeds from the Financing (after netting out applicable fees, expenses, original issue discount and similar premiums and chargers and after giving effect of the maximum amount of flex (including original issue discount flex) provided under the Commitment Letter) constitute all of the financing necessary to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing and, when taken together with cash or cash equivalents held by Parent and the Company on the Closing Date and the other sources of funds available to Parent on the Closing Date, will be sufficient in amount to pay the foregoing amounts in full. The only conditions precedent related to the obligations of the Financing Sources party to the Commitment Letter to fund the full amount of the Financing contemplated by the Commitment Letter are expressly set forth in the Commitment Letter.
Appears in 2 contracts
Sources: Merger Agreement (J.M. Tull Metals Company, Inc.), Merger Agreement (Ryerson Inc.)
Sufficient Funds. (a) Assuming the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and assuming satisfaction of the conditions in Article VII (other than the conditions set forth in Sections 7.2(a) and 7.2(b) and those conditions that by their nature can only be satisfied at the Closing, but subject Prior to the satisfaction or waiver thereof), Parent and Merger Sub will have available to them at the Effective Time all funds and commitments necessary to refinance in full all amounts outstanding under the Company Credit date of this Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing. Parent has delivered to the Company true complete, correct and complete executed copies of (i) a fully executed the letter dated January 18, 2006, from Banc of America Securities LLC, Banc of America Bridge LLC, Bank of America, N.A., Bear St▇▇▇▇▇ & Co. Inc. and Bear St▇▇▇▇▇ ▇orporate Lending Inc., pursuant to which the parties thereto have committed, subject to the terms and conditions set forth therein, to provide or cause to be provided debt commitment letterfinancing of up to $2,075,000,000 in connection with the Transactions (the “Debt Commitments” ) and (ii) the letter dated January 18, dated 2006, from Ba▇▇ ▇apital Fund VIII, L.P. (“Bain”) pursuant to which Bain and or its Affiliates have committed, subject to the terms and conditions set forth therein, to provide or cause to be provided equity financing of up to $500,000,000 in connection with the Transactions (the “Equity Commitment” and, together with the Debt Commitments, the “Financing Commitments”), with respect to the financing of the Transactions (the “Financing”), including all exhibits, schedules or amendments thereto. The Financing Commitments are in full force and effect, and there are no conditions precedent related to the funding of the full amount of the Financing, other than as set forth in or expressly contemplated by the Financing Commitments. The aggregate proceeds contemplated by the Financing Commitments will be sufficient for Parent and Merger Sub to pay for all outstanding Shares converted into cash pursuant to the Merger, to make all payments in respect of all Company Options, to perform Parent’s and Merger Sub’s other obligations under this Agreement and to pay all fees and expenses related to the Transactions payable by either of them. Assuming the accuracy of the representations and warranties of the Company set forth in Article IV, as of the date of this Agreement (including all exhibits thereto in effect on the date hereof) and (ii) the executed fee letter referenced therein, relating to fees with respect to the Financing contemplated by the commitment letter (collectively, the “Commitment Letter”), by and among Parent and the Financing Sources specified therein (with only fee amounts and other economic terms, and the rates and amounts included in the “flex” provisions, redacted, none of which redacted provisions would adversely affect the conditionality, enforceability, termination or amount of the debt financing contemplated by the commitment letter). Pursuant to the Commitment Letter, and subject to the terms and conditions thereof, the Financing Sources party thereto Merger Sub have committed to provide Parent with the amounts set forth in the Commitment Letter for the purposes set forth therein (the debt financing contemplated in the Commitment Letter, together with, unless the context otherwise requires, any replacement financing, including any bank financing or debt securities issued in lieu thereof, the “Financing”). As of the date of this Agreement, the Commitment Letter is in full force and effect and has not been withdrawn, rescinded or terminated, or otherwise amended or modified in any respect and no amendment or modification is contemplated (other than as set forth in the fee letters with respect to flex rights and/or to add additional lenders, arrangers, bookrunners, syndication agents and similar entities who had not executed the Commitment Letter as of the date of this Agreement), and the Commitment Letter, in the form so delivered, constitutes the legal, valid and binding obligation of, and is enforceable against, Parent and, to the knowledge of Parent, each of the other parties thereto, subject, in each case, to the Enforceability Exceptions. Except as set forth in the Commitment Letter and except for any related commitment letters, engagement letters and fee letters related to the permanent financing described in the Commitment Letter, as of the date of this Agreement, there are no contracts, agreements, “side letters” or other arrangements to which Parent or any of its affiliates is a party relating to the Commitment Letter or the Financing.
(b) As of the date of this Agreement, no event has occurred which, with or without notice, lapse of time or both, constitutes, or would reasonably be expected to constitute, a default or breach by Parent or, to the knowledge of Parent, any other party thereto, of any term of the Commitment Letter. As of the date of this Agreement, no Financing Source party to the Commitment Letter has notified Parent of its termination or repudiation (or intent to terminate or repudiate) any of the commitments under such Commitment Letter or intent not to provide the Financing. Assuming the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and assuming satisfaction of the conditions in Article VII (other than the conditions set forth in Sections 7.2(a) and 7.2(b) and those conditions that by their nature can only be satisfied at the Closing, but subject to the satisfaction or waiver thereof), Parent has no reason to believe that any of the conditions precedent to the funding Financing will not be satisfied in connection with the consummation of the Financing contemplated by the Commitment Letter and contained in the Commitment Letter will fail to be satisfied on the Closing Date Transactions or that the full amounts committed pursuant to the Commitment Letter Financing will not be available to be funded on the Closing Date to the extent required, when taken together with cash or cash equivalents held by Parent and the Company on the Closing Date and the other sources of funds available to Parent and/or Merger Sub on the Closing Date, to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing.
(c) Parent acknowledges that its obligation to consummate the Merger as set forth in this Agreement is not contingent on Parent’s ability to obtain any financing, whether pursuant to the Commitment Letter or otherwise.
(d) Parent has fully paid (or caused to be paid) any and all commitment fees or other fees required by the Commitment Letter to be paid on or before the date of this Agreement. Assuming (i) the funding of the full amount of the Financing in accordance with and subject to the satisfaction of the conditions in the Commitment Letter, (ii) the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and (iii) satisfaction of the conditions in Article VII, the aggregate proceeds from the Financing (after netting out applicable fees, expenses, original issue discount and similar premiums and chargers and after giving effect of the maximum amount of flex (including original issue discount flex) provided under the Commitment Letter) constitute all of the financing necessary to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing and, when taken together with cash or cash equivalents held by Parent and the Company on the Closing Date and the other sources of funds available to Parent on the Closing Date, will be sufficient in amount to pay the foregoing amounts in full. The only conditions precedent related to the obligations of the Financing Sources party to the Commitment Letter to fund the full amount of the Financing contemplated by the Commitment Letter are expressly set forth in the Commitment Letter.
Appears in 1 contract
Sources: Merger Agreement (Burlington Coat Factory Warehouse Corp)
Sufficient Funds. You must have sufficient available funds in your Account to cover the amount of any transaction that would be charged to your Account. Subject to limitations set out in this Agreement, you can request up to the amount of available funds or available credit in your Account. We may hold (aor “freeze”) Assuming funds at any time after you have initiated a Personal Service for any reason, including as a means of reducing risks that there will be insufficient funds for completing the truth Personal Service. If we do hold funds, we may treat the held funds as not available for other purposes, and accuracy reject other transactions (for example, checks or other transfer instructions) in any order we choose. We may allow overdrafts/overlimits or negative balances, but we also may discontinue the practice at any time with or without prior notice to you. We may prevent or reverse any payments or other Personal Service in any order that we choose as a means of the Company’s representations and warranties preventing or recovering any overdrafts or other exposures. If you do not have sufficient or available funds or credit, you may be charged an overdraft or other fee (such as fees for returned checks or other electronic items), as set forth herein and in Article III the Schedule of Fees and compliance by Charges for Personal Accounts. Without limiting the Company with its obligations hereunderforegoing, in each case, in all material respects, and assuming satisfaction if we allow your overdraft line of the conditions in Article VII credit (other than the conditions set forth in Sections 7.2(aif available) and 7.2(b) and those conditions that by their nature can only to be satisfied at the Closing, but subject to the satisfaction or waiver thereofoverdrawn (meaning your advance exceeds your available overdraft line of credit amount), Parent you must immediately make a deposit to cover the excess overdraft. If we sue you to collect any overdraft, you agree that we're entitled to collect all costs and Merger Sub will have available to them at expenses of suit from you (including the Effective Time all funds and commitments necessary to refinance in full all amounts outstanding under the Company Credit Agreementreasonable cost of an attorney), the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and applicable law. If we allow an advance from your overdraft line of credit, you're responsible for any interest we charge in accordance with the terms of the overdraft line of credit agreement. You agree that we are not liable for any damages or expenses you incur due to pay any delay or failure of the fees and expenses relating to the Merger and the Financing. Parent has delivered to the Company true and complete copies of (i) a fully executed debt commitment letter, dated as of courier (or the date of this Agreement (including all exhibits thereto US Postal Service) in effect on the date hereof) delivering any check; and (ii) the executed fee letter referenced therein, relating to fees with respect to the Financing contemplated by the commitment letter (collectively, the “Commitment Letter”), by and among Parent and the Financing Sources specified therein (with only fee amounts and other economic terms, and the rates and amounts included any Payee or third party in the “flex” provisions, redacted, none of which redacted provisions would adversely affect the conditionality, enforceability, termination crediting or amount of the debt financing contemplated by the commitment letter). Pursuant to the Commitment Letter, and subject to the terms and conditions thereof, the Financing Sources party thereto have committed to provide Parent with the amounts set forth in the Commitment Letter for the purposes set forth therein (the debt financing contemplated in the Commitment Letter, together with, unless the context otherwise requires, any replacement financing, including any bank financing processing a payment or debt securities issued in lieu thereof, the “Financing”). As of the date of this Agreement, the Commitment Letter is in full force and effect and has not been withdrawn, rescinded or terminated, or otherwise amended or modified in any respect and no amendment or modification is contemplated (other than as set forth in the fee letters with respect to flex rights and/or to add additional lenders, arrangers, bookrunners, syndication agents and similar entities who had not executed the Commitment Letter as of the date of this Agreement), and the Commitment Letter, in the form so delivered, constitutes the legal, valid and binding obligation of, and is enforceable against, Parent and, to the knowledge of Parent, each of the other parties thereto, subject, in each case, to the Enforceability Exceptions. Except as set forth in the Commitment Letter and except for any related commitment letters, engagement letters and fee letters related to the permanent financing described in the Commitment Letter, as of the date of this Agreement, there are no contracts, agreements, “side letters” or other arrangements to which Parent or any of its affiliates is a party relating to the Commitment Letter or the Financingwithdrawal.
(b) As of the date of this Agreement, no event has occurred which, with or without notice, lapse of time or both, constitutes, or would reasonably be expected to constitute, a default or breach by Parent or, to the knowledge of Parent, any other party thereto, of any term of the Commitment Letter. As of the date of this Agreement, no Financing Source party to the Commitment Letter has notified Parent of its termination or repudiation (or intent to terminate or repudiate) any of the commitments under such Commitment Letter or intent not to provide the Financing. Assuming the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and assuming satisfaction of the conditions in Article VII (other than the conditions set forth in Sections 7.2(a) and 7.2(b) and those conditions that by their nature can only be satisfied at the Closing, but subject to the satisfaction or waiver thereof), Parent has no reason to believe that any of the conditions to the funding of the Financing contemplated by the Commitment Letter and contained in the Commitment Letter will fail to be satisfied on the Closing Date or that the full amounts committed pursuant to the Commitment Letter will not be available to be funded on the Closing Date to the extent required, when taken together with cash or cash equivalents held by Parent and the Company on the Closing Date and the other sources of funds available to Parent on the Closing Date, to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing.
(c) Parent acknowledges that its obligation to consummate the Merger as set forth in this Agreement is not contingent on Parent’s ability to obtain any financing, whether pursuant to the Commitment Letter or otherwise.
(d) Parent has fully paid (or caused to be paid) any and all commitment fees or other fees required by the Commitment Letter to be paid on or before the date of this Agreement. Assuming (i) the funding of the full amount of the Financing in accordance with and subject to the satisfaction of the conditions in the Commitment Letter, (ii) the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and (iii) satisfaction of the conditions in Article VII, the aggregate proceeds from the Financing (after netting out applicable fees, expenses, original issue discount and similar premiums and chargers and after giving effect of the maximum amount of flex (including original issue discount flex) provided under the Commitment Letter) constitute all of the financing necessary to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing and, when taken together with cash or cash equivalents held by Parent and the Company on the Closing Date and the other sources of funds available to Parent on the Closing Date, will be sufficient in amount to pay the foregoing amounts in full. The only conditions precedent related to the obligations of the Financing Sources party to the Commitment Letter to fund the full amount of the Financing contemplated by the Commitment Letter are expressly set forth in the Commitment Letter.
Appears in 1 contract
Sources: Online Banking Service Agreement
Sufficient Funds. (a) Assuming Buyer will have at the truth Closing sufficient cash, available lines of credit or other sources of immediately available funds to make cash payment of all amounts to be paid by it hereunder on or after the Closing Date. Buyer acknowledges and accuracy agrees that its obligations under this Agreement are not contingent upon or subject to any conditions regarding ▇▇▇▇▇’s or any other Person’s ability to obtain financing for the consummation of the Company’s representations and warranties set forth in Article III and compliance transaction contemplated by the Company with its obligations hereunder, in each case, in all material respects, and assuming satisfaction of the conditions in Article VII (other than the conditions set forth in Sections 7.2(a) and 7.2(b) and those conditions that by their nature can only be satisfied at the Closing, but subject to the satisfaction or waiver thereof), Parent and Merger Sub will have available to them at the Effective Time all funds and commitments necessary to refinance in full all amounts outstanding under the Company Credit this Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing. Parent Buyer has delivered to the Company true a true, complete and complete copies correct copy of each of (ia) a fully executed debt commitment letter and (b) the fully executed fee letter referenced in such commitment letter (provided, that such fee letter shall be redacted relating solely to fees and economic terms (other than covenants) agreed to by the parties may be redacted (none of which redacted provisions adversely affect the availability of or impose additional conditions on, the availability of the debt financing at the Closing) (such commitment letter, dated including all exhibits, schedules, annexes and joinders thereto, as the same may be amended, modified, supplemented, extended or replaced from time to time is referred to herein as the “Debt Commitment Letter”), among Buyer, Parent and the Financing Sources party thereto, pursuant to which, among other things, the Financing Sources have agreed, subject to the terms and conditions of the Debt Commitment Letter, to provide or cause to be provided, on a several and not joint basis, the debt financing in the aggregate amount set forth therein for the purpose of funding the transactions contemplated by this Agreement. The Debt Commitment Letter is, as of the date of this Agreement (including all exhibits thereto Agreement, in effect on full force and effect. The Debt Commitment Letter is, as of the date hereof) of this Agreement, the legal, valid, binding and (ii) Enforceable obligation of Buyer and Parent and, to the executed fee letter referenced thereinknowledge of Buyer, the other parties thereto, except as such enforceability may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar applicable Legal Requirements affecting or relating to fees with respect to the Financing contemplated enforcement of creditors’ rights generally and by the commitment letter (collectively, the “Commitment Letter”), by and among Parent and the Financing Sources specified therein (with only fee amounts and other economic terms, and the rates and amounts included in the “flex” provisions, redacted, none general principles of which redacted provisions would adversely affect the conditionality, enforceability, termination or amount of the debt financing contemplated by the commitment letter). Pursuant to the Commitment Letter, and subject to the terms and conditions thereof, the Financing Sources party thereto have committed to provide Parent with the amounts set forth in the Commitment Letter for the purposes set forth therein (the debt financing contemplated in the Commitment Letter, together with, unless the context otherwise requires, any replacement financing, including any bank financing or debt securities issued in lieu thereof, the “Financing”)equity. As of the date of this Agreement, (x) the Debt Commitment Letter is in full force and effect and has not been withdrawnamended, rescinded modified, supplemented, extended or terminated, or otherwise amended or modified in any respect replaced and no provision thereof has been waived, prior to the date hereof, (y) no such amendment or modification is contemplated anticipated by Buyer (other than as set forth in the fee letters with respect to flex rights and/or to add additional lenders, lead arrangers, bookrunners, syndication agents and or other similar entities who had not executed the Debt Commitment Letter as of the date of this Agreement)) and (z) the commitments contained in the Debt Commitment Letter have not been withdrawn, and terminated or rescinded in any respect and, other than as specifically contemplated in the Debt Commitment Letter, in the form so delivered, constitutes the legal, valid and binding obligation of, and is enforceable against, Parent and, to the knowledge of Parent, each of the other parties thereto, subject, in each case, to the Enforceability Exceptions. Except as set forth in the Commitment Letter and except for any related commitment letters, engagement letters and fee letters related to the permanent financing described in the Commitment Letter, as of the date of this Agreement, there are no contracts, agreements, “side letters” or other arrangements to which Parent or any of its affiliates is a party relating to the Commitment Letter or the Financing.
(b) As of the date of this AgreementBuyer, no event has occurred whichsuch withdrawal, with termination or without notice, lapse of time or both, constitutes, or would reasonably be expected to constitute, a default or breach rescission is contemplated by Parent or, to the knowledge of Parent, any other party thereto, of any term of the Commitment LetterFinancing Sources. As of the date of this Agreement, Agreement there are no Financing Source party to the Commitment Letter has notified Parent of its termination conditions precedent or repudiation (or intent to terminate or repudiate) any of the commitments under such Commitment Letter or intent not to provide the Financing. Assuming the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and assuming satisfaction of the conditions in Article VII (other than the conditions set forth in Sections 7.2(a) and 7.2(b) and those conditions that by their nature can only be satisfied at the Closing, but subject to the satisfaction or waiver thereof), Parent has no reason to believe that any of the conditions contingencies to the funding of the Financing amounts contemplated by the Commitment Letter and contained in the Commitment Letter will fail to be satisfied on the Closing Date or that the full amounts committed pursuant to the Commitment Letter will not be available to be funded on the Closing Date to the extent required, when taken together with cash or cash equivalents held by Parent and the Company on the Closing Date and the other sources of funds available to Parent on the Closing Date, to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing.
(c) Parent acknowledges that its obligation to consummate the Merger as set forth in this Agreement is not contingent on Parent’s ability to obtain any financing, whether pursuant to the Commitment Letter or otherwise.
(d) Parent has fully paid (or caused to be paid) any and all commitment fees or other fees required by the Commitment Letter to be paid on or before the date of this Agreement. Assuming (i) the funding of the full amount of the Financing in accordance with and subject to the satisfaction of the conditions in the Debt Commitment Letter, (ii) the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and (iii) satisfaction of other than the conditions in Article VII, the aggregate proceeds from the Financing (after netting out applicable fees, expenses, original issue discount and similar premiums and chargers and after giving effect of the maximum amount of flex (including original issue discount flex) provided under the Commitment Letter) constitute all of the financing necessary to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing and, when taken together with cash or cash equivalents held by Parent and the Company on the Closing Date and the other sources of funds available to Parent on the Closing Date, will be sufficient in amount to pay the foregoing amounts in full. The only conditions precedent related to the obligations of the Financing Sources party to the Commitment Letter to fund the full amount of the Financing contemplated by the Commitment Letter are expressly set forth in the Debt Commitment Letter, and there a no side letters or other Contractual Obligations or arrangements related to the Financing other than as expressly set forth in the Debt Commitment Letter.
Appears in 1 contract
Sources: Equity Purchase Agreement and Plan of Merger (Boyd Group Services Inc.)
Sufficient Funds. (a) Assuming the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and assuming satisfaction of the conditions in Article VII (other than the conditions set forth in Sections 7.2(a) and 7.2(b) and those conditions that by their nature can only be satisfied at the Closing, but subject to the satisfaction or waiver thereof), Parent and Merger Sub will have available to them at the Effective Time all funds and commitments necessary to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing. Parent has delivered to ▇▇▇▇▇▇▇▇ a copy of an executed commitment letter (the Company true and complete copies of (i) a fully executed debt commitment letter“Debt Commitment Letter”), dated as of the date of this Agreement hereof, from ▇.▇. ▇▇▇▇▇▇ Securities LLC and JPMorgan Chase Bank, N.A. (including all exhibits thereto in effect on the date hereof) and (ii) the executed fee letter referenced therein, relating to fees with respect to the Financing contemplated by the commitment letter (collectively, the “Commitment LetterLenders”), by and among Parent and the Financing Sources specified therein (with only fee amounts and other economic terms, and the rates and amounts included in the “flex” provisions, redacted, none of which redacted provisions would adversely affect the conditionality, enforceability, termination or amount of the debt financing contemplated by the commitment letter)) addressed to Parent. Pursuant to the Debt Commitment Letter, Letter and subject to the terms and conditions thereofcontained therein, the Financing Sources party thereto Lenders have committed to provide U.S.$4.0 billion in aggregate principal amount of debt financing to Parent with on or before the amounts Effective Date (the “Debt Financing”). The obligations to fund the commitments under the Debt Commitment Letter are not subject to any condition other than those set forth therein. Parent has no knowledge of any fact or occurrence that has or would reasonably be expected to (i) make any of the assumptions or statements set forth in the Debt Commitment Letter for inaccurate, (ii) cause the purposes Debt Commitment Letter to be ineffective or (iii) preclude in any material respect the satisfaction of the conditions set forth therein (the debt financing contemplated in the Debt Commitment Letter, together with, unless the context otherwise requires, any replacement financing, including any bank financing or debt securities issued in lieu thereof, the “Financing”). As of the date of this Arrangement Agreement, the Debt Commitment Letter is in full force and effect and has not been withdrawneffect, rescinded or terminated, or otherwise amended or modified in any respect and no amendment or modification is contemplated (other than as set forth in the fee letters with respect to flex rights and/or to add additional lenders, arrangers, bookrunners, syndication agents and similar entities who had not executed the Commitment Letter as of the date of this Agreement), and the Commitment Letter, in the form so delivered, constitutes the a legal, valid and binding obligation of, and is enforceable against, of Parent and, to the knowledge of Parent, each of the other parties thereto, subject, in each case, to the Enforceability Exceptions. Except as set forth in the Commitment Letter and except for any related commitment letters, engagement letters and fee letters related to the permanent financing described in the Commitment Letter, as of the date of this Agreement, there are no contracts, agreements, “side letters” or other arrangements to which Parent or any of its affiliates is a party relating to the Commitment Letter or the Financing.
(b) As of the date of this Agreement, no event has occurred which, with or without notice, lapse of time or both, constitutes, or would reasonably be expected to constitute, a default or breach by Parent or, to the knowledge of Parent, any other party thereto, of any term of the Commitment Letter. As of the date of this Agreement, no Financing Source party to the Commitment Letter has notified Parent of its termination or repudiation (or intent to terminate or repudiate) any of the commitments under such Commitment Letter or intent not to provide the Financing. Assuming the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and assuming satisfaction of the conditions in Article VII (other than the conditions set forth in Sections 7.2(a) and 7.2(b) and those conditions that by their nature can only be satisfied at the Closing, but case subject to the satisfaction or waiver thereof)Bankruptcy and Equity Exception, Parent and has no reason to believe that not been amended in any of the conditions to the funding of the Financing contemplated by the Commitment Letter and contained in the Commitment Letter will fail to be satisfied on the Closing Date or that the full amounts committed pursuant to the Commitment Letter will not be available to be funded on the Closing Date to the extent requiredmaterial respect, when taken together with cash or cash equivalents held by Parent and the Company on the Closing Date financing and the other sources of funds available to Parent on the Closing Date, to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing.
(c) Parent acknowledges that its obligation to consummate the Merger as set forth in this Agreement is not contingent on Parent’s ability to obtain any financing, whether pursuant to the Commitment Letter or otherwise.
(d) Parent has fully paid (or caused to be paid) any and all commitment fees or other fees required by the Commitment Letter to be paid that are due and payable on or before the date of this Agreementhereof under the Debt Commitment Letter have been paid in full. Assuming (i) Subject to the funding terms and conditions of the full amount of the Financing in accordance with and subject to the satisfaction of the conditions in the Debt Commitment Letter, (ii) the truth and accuracy funds contemplated to be received pursuant to the Debt Commitment Letter or, at Parent’s option, funds received from the Permanent Financing, together with available funds including treasury securities issued by the United States Department of the CompanyTreasury, debt securities with a debt rating of “Baa3” or the equivalent thereof or higher from ▇▇▇▇▇’▇ Investors Service, Inc. or its successors or a debt rating of “BBB-” or the equivalent thereof or higher from Standard & Poor’s representations Ratings Group Inc. or its successors, cash equivalents and warranties set forth credit available for such purpose under existing financing facilities in Article III and compliance by the Company with its obligations hereunderaggregate amount not less than $800 million that Parent currently has on hand, in each case, in all material respects, and holds or has available to it (iii) satisfaction of the conditions in Article VIIcollectively, the aggregate proceeds from “Available Cash”), are sufficient to provide that the Financing (after netting out applicable feesParent will, expensesat the Effective Time, original issue discount have sufficient funds to pay the Cash Consideration, the Warrant Consideration, the Option Consideration and similar premiums and chargers and after giving effect of the maximum amount of flex (including original issue discount flex) provided PSU Consideration under the Commitment Letter) constitute Arrangement and to make all of other payments required to be made or caused to be made by Parent pursuant to the financing necessary to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement Arrangement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing and, when taken together with cash or cash equivalents held by Parent and the Company on the Closing Date and the other sources 5.03(c) of funds available to Parent on the Closing Date, will be sufficient in amount to pay the foregoing amounts in full. The only conditions precedent related to the obligations of the Financing Sources party to the Commitment Letter to fund the full amount of the Financing contemplated by the Commitment Letter are expressly set forth in the Commitment Letterthis Arrangement Agreement.
Appears in 1 contract
Sources: Arrangement Agreement (Cliffs Natural Resources Inc.)
Sufficient Funds. (a) Assuming the truth R1 and accuracy of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and assuming satisfaction of the conditions in Article VII (other than the conditions set forth in Sections 7.2(a) and 7.2(b) and those conditions that by their nature can only be satisfied at the Closing, but subject to the satisfaction or waiver thereof), Parent and Merger Sub will have available to them at the Effective Time all funds and commitments necessary to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing. Parent has delivered to the Company true true, correct, and complete copies of (i) a fully executed debt commitment letterletters from each of the financial institutions identified therein, dated as of the date of this Agreement hereof (including all exhibits thereto in effect on the date hereof) exhibits, schedules and (ii) the executed fee letter referenced therein, relating to fees with respect to the Financing contemplated by the commitment letter (collectivelyannexes thereto, the “Senior Debt Commitment Letter”), by (ii) executed commitment letters from each of the subordinated lenders identified therein, dated as of the date hereof (including all exhibits, schedules and among Parent annexes thereto, the “Subordinated Debt Commitment Letter” and together with the Financing Sources specified therein Senior Debt Commitment Letter, the “Debt Commitment Letter”) and (iii) the fee letter referred to in the Senior Debt Commitment Letter (the “Fee Letter”) (with only fee amounts and other economic terms, and the rates and amounts included in the “flex” provisions, redacted, customary market flex provisions redacted (but none of which the redacted provisions terms would adversely affect the conditionality, enforceability, termination amount or amount availability of the debt financing contemplated by Debt Financing)) (the commitment letter). Pursuant to Debt Commitment Letter and the Fee Letter, together the “Commitment Letters”, and the commitments under the Debt Commitment Letter, the “Debt Financing Commitments” or the “Financing Commitments”), pursuant to which, and subject to the terms and conditions thereofof which, the Financing Sources lenders party thereto (the “Lenders”) have committed to provide Parent with lend the amounts set forth in the Commitment Letter for the purposes set forth therein to Parent (the debt financing contemplated in the Commitment Letter, together with, unless the context otherwise requires, any replacement financing, including any bank financing “Debt Financing” or debt securities issued in lieu thereof, the “Financing”). As of the date of this Agreement, the .
(b) The Commitment Letter is Letters are in full force and effect and has have not been withdrawn, rescinded rescinded, or terminated, or otherwise amended or modified in any respect and no amendment or modification is contemplated (other than as set forth in the fee letters with respect to flex rights and/or to add additional lenders, arrangers, bookrunners, syndication agents and similar entities who had not executed the Commitment Letter as of the date of this Agreement), and the Commitment Letter, in the form so delivered, constitutes the are a legal, valid and binding obligation of, of Parent and is enforceable against, Parent and, to the knowledge of Parent, each of the other parties thereto, subject, enforceable in each case, to accordance with their terms except as may be limited by the Enforceability Exceptions. Except as Other than the Commitment Letters and the Fee Letter, there are no other agreements, side letters or arrangements relating to the Financing Commitments that would affect the availability of the Financing. Neither R1, Parent nor Merger Sub is in breach of any of the terms or conditions set forth in the Commitment Letter and except for any related commitment letters, engagement letters and fee letters related to the permanent financing described in the Commitment Letter, as of the date of this Agreement, there are no contracts, agreements, “side letters” or other arrangements to which Parent or any of its affiliates is a party relating to the Commitment Letter or the Financing.
(b) As of the date of this Agreement, no event has occurred which, with or without notice, lapse of time or both, constitutes, or would reasonably be expected to constitute, a default or breach by Parent or, to the knowledge of Parent, any other party thereto, of any term of the Commitment LetterLetters. As of the date of this Agreement, no Financing Source party to Agreement and assuming the Commitment Letter has notified Parent of its termination or repudiation (or intent to terminate or repudiate) any of the commitments under such Commitment Letter or intent not to provide the Financing. Assuming the truth and accuracy of the Company’s representations and warranties closing conditions set forth in Article III Section 7.01 and Section 7.02 have been satisfied and compliance in all material respects by the Company with its obligations hereunderSection 6.12, in each case, in all material respects, and assuming satisfaction of the conditions in Article VII (other than the conditions set forth in Sections 7.2(a) and 7.2(b) and those conditions that by their nature can only be satisfied at the Closing, but subject to the satisfaction or waiver thereof)neither R1, Parent nor Merger Sub is aware nor has no any reason to believe that any of the conditions to the funding of the Financing contemplated by the Commitment Letter and contained in the Commitment Letter will fail required to be satisfied by such party will not be satisfied on or prior to the date on which the Closing Date would otherwise occur pursuant to this Agreement, or that the full amounts committed pursuant to the Commitment Letter Financing will not be available to be funded R1, Parent or Merger Sub on the Closing Date to the extent required, when taken together with cash or cash equivalents held by Parent and the Company date on which the Closing Date and the other sources of funds available to Parent on the Closing Date, to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing.
(c) Parent acknowledges that its obligation to consummate the Merger as set forth in this Agreement is not contingent on Parent’s ability to obtain any financing, whether would otherwise occur pursuant to the Commitment Letter this Agreement. R1, Parent or otherwise.
(d) Parent Merger Sub has fully paid (or caused to be paid) any and all commitment fees or other fees required by the Commitment Letter Financing Commitments to be paid on or before the date of this Agreement. Assuming the closing conditions set forth in Article VII and the Commitment Letters have been satisfied and compliance in all material respects by the Company with Section 6.12, and assuming the Financing is funded in accordance with the terms of the Commitment Letters, the aggregate proceeds from the Financing, together with cash on hand, will be sufficient for satisfaction of all of Parent’s obligations under this Agreement in an amount sufficient to consummate the Transactions, including the payment of the Final Cash Merger Consideration, repayment of the Funded Indebtedness, and the payment of all associated costs and expenses (iincluding, without limitation, the Company Transaction Expenses) (collectively, the funding “Required Amount”). The Commitment Letters contain all of the conditions precedent to the obligations of the parties thereunder to make the full amount of the Financing in accordance with and subject to the satisfaction of the conditions in the Commitment Letter, (ii) the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and (iii) satisfaction of the conditions in Article VII, the aggregate proceeds from the Financing (after netting out applicable fees, expenses, original issue discount and similar premiums and chargers and after giving effect of the maximum amount of flex (including original issue discount flex) provided under the Commitment Letter) constitute all of the financing necessary to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing and, when taken together with cash or cash equivalents held by Parent and the Company on the Closing Date and the other sources of funds available to Parent on the Closing Dateterms set forth therein. As of the date of this Agreement, will be sufficient in amount to pay the foregoing amounts in full. The only conditions precedent related to the obligations none of the Financing Sources party Commitments has been terminated or withdrawn and no Lender has notified R1, Parent or Merger Sub in writing of its intention to terminate or withdraw the Commitment Letter Debt Financing Commitments.
(c) The obligations of R1, Parent and Merger Sub under this Agreement are not subject to fund any conditions regarding R1’s, Parent’s, Merger Sub’s, their respective Affiliates’, or any other Person’s ability to obtain financing for the full amount consummation of the Financing Transactions contemplated by the Commitment Letter are expressly set forth in the Commitment Letterhereby.
Appears in 1 contract
Sources: Merger Agreement (R1 RCM Inc.)
Sufficient Funds. (a) Assuming Concurrently with the truth and accuracy execution of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and assuming satisfaction of the conditions in Article VII (other than the conditions set forth in Sections 7.2(a) and 7.2(b) and those conditions that by their nature can only be satisfied at the Closing, but subject to the satisfaction or waiver thereof), Parent and Merger Sub will have available to them at the Effective Time all funds and commitments necessary to refinance in full all amounts outstanding under the Company Credit this Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing. Parent has delivered to the Company true a complete and complete copies of (i) a fully executed debt commitment letter, dated as accurate copy of the date of this Agreement (including all exhibits thereto in effect on the date hereof) and (ii) the executed fee letter referenced therein, relating to fees with respect to the Financing contemplated by the commitment letter (collectively, the “Equity Commitment Letter”), by and among Parent and ) from the Financing Sources specified investors named therein (with only fee amounts and other economic terms, and the rates and amounts included in the “flex” provisionsInvestors”) to Parent, redactedpursuant to which the Investors have committed to invest in Parent the amounts set forth therein, none of which redacted provisions would adversely affect the conditionality, enforceability, termination or amount of the debt financing contemplated by the commitment letter). Pursuant to the Commitment Letter, and subject to the terms and conditions thereof, the Financing Sources party thereto have committed to provide Parent with the amounts set forth in the Commitment Letter for the purposes set forth therein (the debt financing contemplated in the Commitment Letter, together with, unless the context otherwise requires, any replacement financing, including any bank financing or debt securities issued in lieu thereof, the “Financing”). The Equity Commitment Letter provides, and will continue to provide, that the Company is a third-party beneficiary thereof and is entitled to enforce such agreement. As of the date hereof, and as of the Closing, the funds provided to Parent and/or Purchaser by the Financing, together with Parent’s cash on hand (as of the date hereof and as of the Effective Time), are sufficient to fully fund all of Parent’s and Purchaser’s obligations under this Agreement, including payment of the aggregate Merger Consideration and Option Consideration and payment of all fees and expenses related to the transactions contemplated by this Agreement and the discharge or refinancing of all indebtedness of the Company and the Company Subsidiaries in connection therewith. Except as set forth in the Equity Commitment Letter, there are no conditions precedent to the respective obligations of the parties thereto to fund the Financing. There are no other agreements, side letters or arrangements that would permit the parties to the Equity Commitment Letter to reduce the amount of the Financing or that could otherwise affect the availability of the Financing. The Equity Commitment Letter has been duly executed and delivered by, and is a legal, valid and binding obligation of the Investors. As of the date hereof, the Equity Commitment Letter is in full force and effect and has not been withdrawn, rescinded withdrawn or terminated, terminated or otherwise amended or modified in any respect and no amendment respect. No commitment fees or modification is contemplated (other than as set forth in fees were required to be paid under the fee letters with respect to flex rights and/or to add additional lenders, arrangers, bookrunners, syndication agents and similar entities who had not executed the Equity Commitment Letter on or prior to the date hereof and, as of the date of this Agreement), and the Commitment Letter, in the form so delivered, constitutes the legal, valid and binding obligation of, and is enforceable against, Parent andhereof, to the knowledge of Parent, each there is no fact or occurrence existing that would make any of the other parties thereto, subject, in each case, to the Enforceability Exceptions. Except as statements (including assumptions) set forth in any of the Equity Commitment Letter and except for any related commitment lettersinaccurate. Assuming no breach or default by the Company under this Agreement, engagement letters and fee letters related there is no fact or occurrence known to the permanent financing described in the Commitment Letter, Parent or Purchaser as of the date of this AgreementAgreement that would cause the conditions to funding of the Financing not to be satisfied at or before the Effective Time, there are no contracts, agreements, “side letters” and neither Parent nor Purchaser has reason to believe that it will be unable to satisfy on a timely basis any term or other arrangements condition of closing to which Parent or any of its affiliates is a party relating to be satisfied by it contained in the Equity Commitment Letter or the FinancingLetter.
(b) As Notwithstanding anything contained in this Agreement to the contrary, Parent and Purchaser acknowledge and agree that Parent’s and Purchaser’s obligations hereunder are not conditioned in any manner upon Parent’s or Purchaser’s obtaining any financing. In addition, for the avoidance of doubt, Parent and Purchaser acknowledge and agree that the date existence or satisfaction of this Agreementany conditions contained in the Equity Commitment Letter or the Financing shall not constitute, no event has occurred which, with or without notice, lapse of time or both, constitutes, or would reasonably nor be expected construed to constitute, a default or breach by Parent or, condition to the knowledge of Parent, any other party thereto, of any term consummation of the Commitment Letter. As of the date of transactions contemplated by this Agreement, no Financing Source party to the Commitment Letter has notified Parent of its termination or repudiation (or intent to terminate or repudiate) any of the commitments under such Commitment Letter or intent not to provide the Financing. Assuming the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and assuming satisfaction of the conditions in Article VII (other than the conditions set forth in Sections 7.2(a) and 7.2(b) and those conditions that by their nature can only be satisfied at the Closing, but subject to the satisfaction or waiver thereof), Parent has no reason to believe that any of the conditions to the funding of the Financing contemplated by the Commitment Letter and contained in the Commitment Letter will fail to be satisfied on the Closing Date or that the full amounts committed pursuant to the Commitment Letter will not be available to be funded on the Closing Date to the extent required, when taken together with cash or cash equivalents held by Parent and the Company on the Closing Date and the other sources of funds available to Parent on the Closing Date, to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing.
(c) Parent acknowledges that its obligation to consummate the Merger as set forth in this Agreement is not contingent on Parent’s ability to obtain any financing, whether pursuant to the Commitment Letter or otherwise.
(d) Parent has fully paid (or caused to be paid) any and all commitment fees or other fees required by the Commitment Letter to be paid on or before the date of this Agreement. Assuming (i) the funding of the full amount of the Financing in accordance with and subject to the satisfaction of the conditions in the Commitment Letter, (ii) the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and (iii) satisfaction of the conditions in Article VII, the aggregate proceeds from the Financing (after netting out applicable fees, expenses, original issue discount and similar premiums and chargers and after giving effect of the maximum amount of flex (including original issue discount flex) provided under the Commitment Letter) constitute all of the financing necessary to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing and, when taken together with cash or cash equivalents held by Parent and the Company on the Closing Date and the other sources of funds available to Parent on the Closing Date, will be sufficient in amount to pay the foregoing amounts in full. The only conditions precedent related to the obligations of the Financing Sources party to the Commitment Letter to fund the full amount of the Financing contemplated by the Commitment Letter are expressly set forth in the Commitment Letter.
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Sufficient Funds. (a) Parent has delivered to the Company a true and complete copy of the fully executed commitment letters, dated as of the date hereof (the “Equity Commitment Letter”), between Parent and the other parties thereto (each, an “Equity Investor”), pursuant to which each Equity Investor has committed, subject only to the terms and conditions of the applicable Equity Commitment Letter, to invest the amounts set forth therein on the Closing Date (the “Equity Financing”).
(b) Assuming the truth and Equity Financing is funded in accordance with the Equity Commitment Letters, the accuracy of the Company’s representations and warranties set forth in Article III this Agreement and compliance the performance in all material respects by the Company with its and the Partnership of their obligations hereunderunder this Agreement, in each case, in all material respects, and assuming satisfaction of the conditions in Article VII (other than the conditions set forth in Sections 7.2(a) and 7.2(b) and those conditions that by their nature can only be satisfied at the Closing, but subject Parent will have sufficient cash on hand to consummate the satisfaction transactions contemplated by this Agreement and satisfy all of its obligations under this Agreement, including the payment of the Merger Consideration, any fees and expenses of or waiver thereof)payable by Parent, Parent and Merger Sub will have available I, Merger Sub II or the Surviving Company, any payments in respect of equity compensation obligations required to them at be made in connection with, or as a result of, the Effective Time all funds Mergers and commitments necessary to refinance in full all amounts any repayment or refinancing of any outstanding under the Company Credit AgreementIndebtedness of Parent, the Company Receivables Financing Agreement and the Company Indentures, to pay cash their respective Subsidiaries required in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing. Parent has delivered to the Company true and complete copies of connection therewith.
(ic) a fully executed debt commitment letter, dated as of the date of this Agreement (including all exhibits thereto in effect on the date hereof) and (ii) the executed fee letter referenced therein, relating to fees with respect to the Financing contemplated by the commitment letter (collectively, the “Commitment Letter”), by and among Parent and the Financing Sources specified therein (with only fee amounts and other economic terms, and the rates and amounts included in the “flex” provisions, redacted, none of which redacted provisions would adversely affect the conditionality, enforceability, termination or amount of the debt financing contemplated by the commitment letter). Pursuant to the Commitment Letter, and subject to the terms and conditions thereof, the Financing Sources party thereto have committed to provide Parent with the amounts set forth in the Commitment Letter for the purposes set forth therein (the debt financing contemplated in the Commitment Letter, together with, unless the context otherwise requires, any replacement financing, including any bank financing or debt securities issued in lieu thereof, the “Financing”). As of the date of this Agreement, the Each Equity Commitment Letter is in full force and effect and has not been withdrawn, rescinded (and will not be prior to the Closing or terminated, or otherwise amended or modified in any respect and no amendment or modification is contemplated (other than as set forth in the fee letters with respect to flex rights and/or to add additional lenders, arrangers, bookrunners, syndication agents and similar entities who had not executed the Commitment Letter as of the date valid termination of this Agreement)) withdrawn, and the terminated or rescinded or otherwise amended, supplemented or modified (or is contemplated to be amended, supplemented or modified) in any respect. Each Equity Commitment Letter, in the form so delivereddelivered to the Company, constitutes the legal, valid and binding obligation of, and is enforceable against, Parent and, to of all the knowledge of Parent, each of the other parties thereto, subjectenforceable against Parent and the applicable Equity Investor in accordance with and subject to its terms and conditions, in each case, to except as enforceability may be limited by the Enforceability ExceptionsBankruptcy and Equity Exception. Except as set forth in the Commitment Letter and except for any related commitment There are no side letters, engagement letters and fee letters related to the permanent financing described in the Commitment Letter, as of the date of this Agreement, there are no contracts, agreements, “side letters” understandings or other Contracts or arrangements to which Parent or any of its affiliates is a party relating to the Equity Commitment Letter Letters that could affect the conditionality, enforceability, availability, termination or the Financing.
(b) As aggregate principal amount of the date of this Agreement, no Equity Financing. No event has occurred which, with or without notice, lapse of time or both, constitutes, or would reasonably be expected to constitute, could constitute a default or breach by Parent orunder any term, to the knowledge or a failure of Parent, any other party theretocondition, of the Equity Commitment Letters or otherwise result in any term portion of the Commitment Letter. As of Equity Financing contemplated thereby to be unavailable on the date of this Agreement, no Financing Source party on which the Closing should occur pursuant to the Commitment Letter has notified Parent of its termination or repudiation (or intent to terminate or repudiate) any of the commitments under such Commitment Letter or intent not to provide the FinancingSection 1.5. Assuming the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance this Agreement, the performance in all material respects by the Company with its and the Partnership of their obligations hereunder, in each case, in all material respects, under this Agreement and assuming the satisfaction of the conditions in Article VII (other than the conditions to Closing set forth in Sections 7.2(a) Section 6.1 and 7.2(b) and those conditions that by their nature can only be satisfied at the Closing, but subject to the satisfaction or waiver thereof)Section 6.2, Parent has no does not have any reason to believe that it or the Equity Investors would be unable to satisfy on a timely basis any term or condition of the conditions to the funding of the Financing contemplated by the Equity Commitment Letter and contained in the Commitment Letter will fail Letters required to be satisfied on the Closing Date or that the full amounts committed pursuant to the Commitment Letter will not be available to be funded on the Closing Date to the extent required, when taken together with cash or cash equivalents held by Parent and or the Company on the Closing Date and the other sources of funds available to Equity Investors, as applicable. Parent on the Closing Date, to refinance has paid in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing.
(c) Parent acknowledges that its obligation to consummate the Merger as set forth in this Agreement is not contingent on Parent’s ability to obtain any financing, whether pursuant to the Commitment Letter or otherwise.
(d) Parent has fully paid (or caused to be paid) any and all commitment fees or other fees required by the Equity Commitment Letter Letters to be paid on or before the date of this Agreement, and will pay in full any such amounts due on or before the Closing Date. Assuming (i) There are no conditions precedent or other contingencies related to the funding investing of the full amount of the Financing in accordance with and subject to the satisfaction of the conditions in the Commitment LetterEquity Financing, (ii) the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and (iii) satisfaction of the conditions in Article VII, the aggregate proceeds from the Financing (after netting out applicable fees, expenses, original issue discount and similar premiums and chargers and after giving effect of the maximum amount of flex (including original issue discount flex) provided under the Commitment Letter) constitute all of the financing necessary to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing and, when taken together with cash or cash equivalents held by Parent and the Company on the Closing Date and the other sources of funds available to Parent on the Closing Date, will be sufficient in amount to pay the foregoing amounts in full. The only conditions precedent related to the obligations of the Financing Sources party to the Commitment Letter to fund the full amount of the Financing contemplated by the Commitment Letter are than as expressly set forth in the Equity Commitment LetterLetters. In no event shall the receipt or availability of any funds or financing (including, for the avoidance of doubt, the Equity Financing) by Parent, Merger Sub I, Merger Sub II or any of their respective affiliates or any other financing or other transactions be a condition to any of Parent’s, Merger Sub I’s or Merger Sub II’s obligations under this Agreement.
(d) In no event shall the receipt or availability of any funds or financing (including the Financing) by Parent or any of its affiliates or any other financing be a condition to any of Parent’s obligations under this Agreement.
Appears in 1 contract
Sufficient Funds. (a) Assuming the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and assuming satisfaction of the conditions in Article VII (other than the conditions set forth in Sections 7.2(a) and 7.2(b) and those conditions that by their nature can only be satisfied at the Closing, but subject Prior to the satisfaction or waiver thereof), Parent and Merger Sub will have available to them at the Effective Time all funds and commitments necessary to refinance in full all amounts outstanding under the Company Credit date of this Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing. Parent has delivered to the Company true complete, correct and complete executed copies of (i) a fully executed the letter dated January 18, 2006, from Banc of America Securities LLC, Banc of America Bridge LLC, Bank of America, N.A., Bear ▇▇▇▇▇▇▇ & Co. Inc. and Bear ▇▇▇▇▇▇▇ Corporate Lending Inc., pursuant to which the parties thereto have committed, subject to the terms and conditions set forth therein, to provide or cause to be provided debt commitment letterfinancing of up to $2,075,000,000 in connection with the Transactions (the “Debt Commitments” ) and (ii) the letter dated January 18, dated 2006, from ▇▇▇▇ Capital Fund VIII, L.P. (“Bain”) pursuant to which Bain and or its Affiliates have committed, subject to the terms and conditions set forth therein, to provide or cause to be provided equity financing of up to $500,000,000 in connection with the Transactions (the “Equity Commitment” and, together with the Debt Commitments, the “Financing Commitments”), with respect to the financing of the Transactions (the “Financing”), including all exhibits, schedules or amendments thereto. The Financing Commitments are in full force and effect, and there are no conditions precedent related to the funding of the full amount of the Financing, other than as set forth in or expressly contemplated by the Financing Commitments. The aggregate proceeds contemplated by the Financing Commitments will be sufficient for Parent and Merger Sub to pay for all outstanding Shares converted into cash pursuant to the Merger, to make all payments in respect of all Company Options, to perform Parent’s and Merger Sub’s other obligations under this Agreement and to pay all fees and expenses related to the Transactions payable by either of them. Assuming the accuracy of the representations and warranties of the Company set forth in Article IV, as of the date of this Agreement (including all exhibits thereto in effect on the date hereof) and (ii) the executed fee letter referenced therein, relating to fees with respect to the Financing contemplated by the commitment letter (collectively, the “Commitment Letter”), by and among Parent and the Financing Sources specified therein (with only fee amounts and other economic terms, and the rates and amounts included in the “flex” provisions, redacted, none of which redacted provisions would adversely affect the conditionality, enforceability, termination or amount of the debt financing contemplated by the commitment letter). Pursuant to the Commitment Letter, and subject to the terms and conditions thereof, the Financing Sources party thereto Merger Sub have committed to provide Parent with the amounts set forth in the Commitment Letter for the purposes set forth therein (the debt financing contemplated in the Commitment Letter, together with, unless the context otherwise requires, any replacement financing, including any bank financing or debt securities issued in lieu thereof, the “Financing”). As of the date of this Agreement, the Commitment Letter is in full force and effect and has not been withdrawn, rescinded or terminated, or otherwise amended or modified in any respect and no amendment or modification is contemplated (other than as set forth in the fee letters with respect to flex rights and/or to add additional lenders, arrangers, bookrunners, syndication agents and similar entities who had not executed the Commitment Letter as of the date of this Agreement), and the Commitment Letter, in the form so delivered, constitutes the legal, valid and binding obligation of, and is enforceable against, Parent and, to the knowledge of Parent, each of the other parties thereto, subject, in each case, to the Enforceability Exceptions. Except as set forth in the Commitment Letter and except for any related commitment letters, engagement letters and fee letters related to the permanent financing described in the Commitment Letter, as of the date of this Agreement, there are no contracts, agreements, “side letters” or other arrangements to which Parent or any of its affiliates is a party relating to the Commitment Letter or the Financing.
(b) As of the date of this Agreement, no event has occurred which, with or without notice, lapse of time or both, constitutes, or would reasonably be expected to constitute, a default or breach by Parent or, to the knowledge of Parent, any other party thereto, of any term of the Commitment Letter. As of the date of this Agreement, no Financing Source party to the Commitment Letter has notified Parent of its termination or repudiation (or intent to terminate or repudiate) any of the commitments under such Commitment Letter or intent not to provide the Financing. Assuming the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and assuming satisfaction of the conditions in Article VII (other than the conditions set forth in Sections 7.2(a) and 7.2(b) and those conditions that by their nature can only be satisfied at the Closing, but subject to the satisfaction or waiver thereof), Parent has no reason to believe that any of the conditions precedent to the funding Financing will not be satisfied in connection with the consummation of the Financing contemplated by the Commitment Letter and contained in the Commitment Letter will fail to be satisfied on the Closing Date Transactions or that the full amounts committed pursuant to the Commitment Letter Financing will not be available to be funded on the Closing Date to the extent required, when taken together with cash or cash equivalents held by Parent and the Company on the Closing Date and the other sources of funds available to Parent and/or Merger Sub on the Closing Date, to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing.
(c) Parent acknowledges that its obligation to consummate the Merger as set forth in this Agreement is not contingent on Parent’s ability to obtain any financing, whether pursuant to the Commitment Letter or otherwise.
(d) Parent has fully paid (or caused to be paid) any and all commitment fees or other fees required by the Commitment Letter to be paid on or before the date of this Agreement. Assuming (i) the funding of the full amount of the Financing in accordance with and subject to the satisfaction of the conditions in the Commitment Letter, (ii) the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and (iii) satisfaction of the conditions in Article VII, the aggregate proceeds from the Financing (after netting out applicable fees, expenses, original issue discount and similar premiums and chargers and after giving effect of the maximum amount of flex (including original issue discount flex) provided under the Commitment Letter) constitute all of the financing necessary to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing and, when taken together with cash or cash equivalents held by Parent and the Company on the Closing Date and the other sources of funds available to Parent on the Closing Date, will be sufficient in amount to pay the foregoing amounts in full. The only conditions precedent related to the obligations of the Financing Sources party to the Commitment Letter to fund the full amount of the Financing contemplated by the Commitment Letter are expressly set forth in the Commitment Letter.
Appears in 1 contract
Sources: Merger Agreement (COHOES FASHIONS of CRANSTON, Inc.)
Sufficient Funds. (a) Assuming the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and assuming satisfaction of the conditions in Article VII (other than the conditions set forth in Sections 7.2(a) and 7.2(b) and those conditions that by their nature can only be satisfied at the Closing, but subject Prior to the satisfaction or waiver thereof), Parent and Merger Sub will have available to them at the Effective Time all funds and commitments necessary to refinance in full all amounts outstanding under the Company Credit execution of this Agreement, the Company Receivables Financing Agreement Purchaser has received and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing. Parent has delivered to the Company true and complete copies of accepted (i) a fully executed debt commitment letter, dated as of the date of this Agreement (including all exhibits thereto in effect on the date hereof) and (ii) the executed fee letter referenced therein, relating to fees with respect to the Financing contemplated by the commitment letter (collectively, the “Debt Commitment Letter”), by and among Parent and from the Debt Financing Sources specified therein (with only fee amounts and other economic terms, and the rates and amounts included in the “flex” provisions, redacted, none of which redacted provisions would adversely affect the conditionality, enforceability, termination or amount of the party thereto who have committed to provide debt financing contemplated by the commitment letter). Pursuant to the Commitment Letter, and subject to on the terms and conditions thereof, of the Financing Sources party thereto have committed to provide Parent with the amounts set forth Debt Commitment Letter in the Commitment Letter for the purposes amount set forth therein (such debt financing, the debt financing contemplated in “Debt Financing”), and (ii) a fully executed equity commitment letter, dated as of the date of this Agreement (such letter, the “Equity Commitment Letter” and, together with the Debt Commitment Letter, the “Commitment Letters”), from The Veritas Capital Fund V, L.P. (the “Purchaser Guarantor”) relating to the commitment of the Purchaser Guarantor to provide the equity financing specified therein (the “Equity Financing” and, together with, unless with the context otherwise requires, any replacement financing, including any bank financing or debt securities issued in lieu thereofDebt Financing, the “Financing”), on the terms and conditions of the Equity Commitment Letter. The Equity Commitment Letter provides, and will continue to provide, that the Parent is a third-party beneficiary thereto as specified therein.
(b) Assuming the Financing is funded in accordance with the Commitment Letters, the aggregate proceeds of the Financing are sufficient to allow the Purchaser to consummate the Closing upon the terms contemplated by this Agreement and pay (x) all amounts required to be paid by the Purchaser or its Affiliates at the Closing under the Transaction Documents to which such Person is a party and (y) all related fees and expenses of the Purchaser, its Affiliates and their respective Representatives (as hereinafter defined). Prior to the execution of this Agreement, the Purchaser has delivered to the Parent true and complete copies of the fully-executed Commitment Letters, including all annexes, schedules and other attachments thereto.
(c) The Equity Commitment Letter, and, as of the date of this Agreement, the Debt Commitment Letter, is in full force and effect and is the legal, valid, binding and enforceable obligation of the Purchaser, and, to the Knowledge of the Purchaser (in the case of the Debt Commitment Letter only), each other party thereto, except as may be limited by bankruptcy, insolvency or other Laws affecting generally the enforceability of creditors’ rights and by limitations on the availability of equitable remedies. As of the date hereof, no Commitment Letter has been amended, modified or supplemented in any respect, no provisions or rights thereunder have been waived and the respective commitments contained therein have not been withdrawn, rescinded or modified in any respect, nor is any such amendment, modification or supplement currently contemplated, nor, to the Knowledge of the Purchaser (in the case of the Debt Commitment Letter only), is any such withdrawal or rescission currently contemplated. As of the date of this Agreement, the Commitment Letter is in full force Letters constitute all of the Contracts entered into between each of the Debt Financing Sources and effect the Purchaser Guarantor, on the one hand, and has not been withdrawn, rescinded or terminated, or otherwise amended or modified in any respect and no amendment or modification is contemplated the Purchaser and/or its Affiliates (other than as set forth in the fee letters Purchaser Guarantor), on the other hand, with respect to the Financing, other than customary fee letters relating to fees with respect to the Debt Financing (true and complete copies of which have been provided to the Parent prior to the execution hereof, with only fee amounts, pricing caps and certain economic and flex rights and/or terms (which would not adversely affect the amount or availability of the Debt Financing or include any additional conditions to add additional lendersfunding) redacted). The Purchaser has fully paid, arrangersor caused to be fully paid, bookrunners, syndication agents all commitment fees and similar entities who had not executed other fees and expenses required to be paid under the Commitment Letter as of Letters on or prior to the date of this Agreement. The Commitment Letters are not subject to any condition of any kind whatsoever, including any subsequent approval process, that is directly or indirectly related to the funding of the full amount of the Financing (including any flex provisions), and other than the Commitment Letterconditions precedent as expressly set forth therein, in the form so delivered, constitutes the legal, valid and binding obligation of, and is enforceable against, Parent and, to assuming the knowledge of Parent, each of the other parties thereto, subject, in each case, to the Enforceability Exceptions. Except as conditions set forth in the Commitment Letter Article VIII and except for any related commitment letters, engagement letters and fee letters related to the permanent financing described Article X have been satisfied in the Commitment Letterfull, as of the date of this Agreement, there are the Purchaser has no contracts, agreements, “side letters” or other arrangements reason to which Parent believe that (i) it or any other party thereto will not be able to satisfy on a timely basis any term or condition set forth in the Commitment Letters, including any condition of its affiliates closing of the Financing that is required to be satisfied as a party relating condition of the Financing, or (ii) the full amount of the Financing (other than the portion of the revolving credit facility forming part of the Debt Financing with respect to which, pursuant to the terms of the Debt Commitment Letter Letter, borrowings will not be available on the Closing Date) will not be made available to the Purchaser at or prior to the Financing.
(b) Closing. As of the date of this Agreement, no event has occurred which, with or without notice, lapse of time or both, constitutes, or would reasonably be expected to constitute, constitute a default or breach by Parent on the part of the Purchaser or, to the knowledge Knowledge of Parentthe Purchaser (in the case of the Debt Commitment Letter only), any other party thereto, of thereto under any term of the Commitment LetterLetters. As of the date hereof, the Purchaser is not aware of this Agreementany fact, no Financing Source party to the Commitment Letter has notified Parent of its termination event or repudiation (or intent to terminate or repudiate) other occurrence that makes any of the commitments under such Commitment Letter or intent not to provide the Financing. Assuming the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and assuming satisfaction of the conditions Purchaser in Article VII (other than the conditions set forth in Sections 7.2(a) and 7.2(b) and those conditions that by their nature can only be satisfied at the Closing, but subject to the satisfaction or waiver thereof), Parent has no reason to believe that any of the conditions to the funding of the Financing contemplated by the Commitment Letter and contained inaccurate in the Commitment Letter will fail to be satisfied on the Closing Date or that the full amounts committed pursuant to the Commitment Letter will not be available to be funded on the Closing Date to the extent required, when taken together with cash or cash equivalents held by Parent and the Company on the Closing Date and the other sources of funds available to Parent on the Closing Date, to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing.
(c) Parent acknowledges that its obligation to consummate the Merger as set forth in this Agreement is not contingent on Parent’s ability to obtain any financing, whether pursuant to the Commitment Letter or otherwisematerial respect.
(d) Parent has fully paid (or caused Each of the Purchaser, VCVH Intermediate, VCVH Holding II and Purchaser LLC acknowledges and agrees that, notwithstanding anything to be paid) any and all commitment fees or other fees required by the Commitment Letter to be paid on or before the date of contrary contained in this Agreement. Assuming (i) , the funding of the full amount consummation of the Financing in accordance with and subject to the satisfaction of the conditions in the Commitment Letter, (ii) the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and (iii) satisfaction of the conditions in Article VII, the aggregate proceeds from the Financing (after netting out applicable fees, expenses, original issue discount and similar premiums and chargers and after giving effect of the maximum amount of flex (including original issue discount flex) provided under the Commitment Letter) constitute all of the financing necessary to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing and, when taken together with cash or cash equivalents held by Parent and the Company on the Closing Date and the other sources of funds available to Parent on the Closing Date, will shall not be sufficient in amount to pay the foregoing amounts in full. The only conditions precedent related a condition to the obligations of the Financing Sources party Purchaser, VCVH Intermediate, VCVH Holding II and Purchaser LLC to consummate the transactions contemplated by this Agreement.
(e) Concurrently with the execution and delivery of this Agreement, the Purchaser Guarantor has delivered to the Commitment Letter to fund the full amount Parent a duly executed guarantee of the Financing contemplated Purchaser Guarantor (the “Limited Guarantee”), pursuant to which the Purchaser Guarantor has guaranteed certain obligations of the Purchaser in connection with this Agreement as specified therein. The Purchaser Guarantor is a limited partnership duly organized, validly existing and in good standing under the Laws of the state or jurisdiction of its organization and has all organizational powers required to carry on its business as now conducted. The execution, delivery and performance by the Commitment Letter Purchaser Guarantor of the Limited Guarantee, and the consummation of the transactions contemplated thereby, are expressly set forth within the organizational powers of the Purchaser Guarantor and have been duly authorized by all necessary action on the part of the Purchaser Guarantor. The Limited Guarantee is in full force and effect and is a legal, valid, binding and enforceable obligation of the Commitment LetterPurchaser Guarantor in accordance with its terms, except as may be limited by bankruptcy, insolvency or other Laws affecting generally the enforceability of creditors’ rights and by limitations on the availability of equitable remedies. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would constitute a default on the part of the Purchaser Guarantor under such Limited Guarantee.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Verisk Analytics, Inc.)
Sufficient Funds. (a) Assuming the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and assuming satisfaction of the conditions in Article VII (other than the conditions set forth in Sections 7.2(a) and 7.2(b) and those conditions that by their nature can only be satisfied at the Closing, but subject to the satisfaction or waiver thereof), Parent and Merger Sub will have available to them at the Effective Time all funds and commitments necessary to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing. Parent Purchaser has delivered to Fording a copy of an executed commitment letter (the Company true and complete copies of (i) a fully executed debt commitment letter“Debt Commitment Letter”), dated as of the date hereof, from JPMorgan Chase Bank, N.A, Citibank, N.A., Canadian ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Corporation, Canadian Imperial Bank of this Agreement Commerce, Royal Bank of Canada, and Bank of Montreal (including all exhibits thereto in effect on the date hereof) and (ii) the executed fee letter referenced therein, relating to fees with respect to the Financing contemplated by the commitment letter (collectively, the “Commitment LetterLenders”), by and among Parent and the Financing Sources specified therein (with only fee amounts and other economic terms, and the rates and amounts included in the “flex” provisions, redacted, none of which redacted provisions would adversely affect the conditionality, enforceability, termination or amount of the debt financing contemplated by the commitment letter). Pursuant to the Debt Commitment Letter, Letter and subject to the terms and conditions thereofcontained therein, the Financing Sources party thereto Lenders have committed to provide Parent with U.S.$9,810,000,000 in aggregate principal amount of debt financing to Purchaser on or before the amounts Effective Date (the “Debt Financing”). The obligations to fund the commitments under the Debt Commitment Letter are not subject to any condition other than those set forth therein (including any further internal credit or other approval by the Lenders). Purchaser has no knowledge of any fact or occurrence that would reasonably be expected to (i) make any of the assumptions or statements set forth in the Debt Commitment Letter for inaccurate, (ii) cause the purposes Debt Commitment Letter to be ineffective or (iii) preclude in any material respect the satisfaction of the conditions set forth therein (the debt financing contemplated in the Debt Commitment Letter, together with, unless the context otherwise requires, any replacement financing, including any bank financing or debt securities issued in lieu thereof, the “Financing”). As of the date of this Agreementhereof, the Debt Commitment Letter is in full force and effect and has not been withdrawn, rescinded or terminated, or otherwise amended or modified in any respect and no amendment or modification is contemplated (other than as set forth in the fee letters with respect to flex rights and/or to add additional lenders, arrangers, bookrunners, syndication agents and similar entities who had not executed the Commitment Letter as of the date of this Agreement)material respect, and the Commitment Letter, in the form so delivered, constitutes the legal, valid financing and binding obligation of, and is enforceable against, Parent and, to the knowledge of Parent, each of the other parties thereto, subject, in each case, to the Enforceability Exceptions. Except as set forth in the Commitment Letter and except for any related commitment letters, engagement letters and fee letters related to the permanent financing described in the Commitment Letter, as of the date of this Agreement, there are no contracts, agreements, “side letters” or other arrangements to which Parent or any of its affiliates is a party relating to the Commitment Letter or the Financing.
(b) As of the date of this Agreement, no event has occurred which, with or without notice, lapse of time or both, constitutes, or would reasonably be expected to constitute, a default or breach by Parent or, to the knowledge of Parent, any other party thereto, of any term of the Commitment Letter. As of the date of this Agreement, no Financing Source party to the Commitment Letter has notified Parent of its termination or repudiation (or intent to terminate or repudiate) any of the commitments under such Commitment Letter or intent not to provide the Financing. Assuming the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and assuming satisfaction of the conditions in Article VII (other than the conditions set forth in Sections 7.2(a) and 7.2(b) and those conditions that by their nature can only be satisfied at the Closing, but subject to the satisfaction or waiver thereof), Parent has no reason to believe that any of the conditions to the funding of the Financing contemplated by the Commitment Letter and contained in the Commitment Letter will fail to be satisfied on the Closing Date or that the full amounts committed pursuant to the Commitment Letter will not be available to be funded on the Closing Date to the extent required, when taken together with cash or cash equivalents held by Parent and the Company on the Closing Date and the other sources of funds available to Parent on the Closing Date, to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing.
(c) Parent acknowledges that its obligation to consummate the Merger as set forth in this Agreement is not contingent on Parent’s ability to obtain any financing, whether pursuant to the Commitment Letter or otherwise.
(d) Parent has fully paid (or caused to be paid) any and all commitment fees or other fees required by the Commitment Letter to be paid that are due and payable on or before the date of this Agreementhereof under the Debt Commitment Letter have been paid in full. Assuming (i) Subject to the funding terms and conditions of the full amount of the Financing in accordance with and subject to the satisfaction of the conditions in the Debt Commitment Letter, (ii) the truth and accuracy funds contemplated to be received pursuant to the Debt Commitment Letter, together with the expected proceeds of the Company’s representations sale of Units by Purchaser and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and (iii) satisfaction of the conditions in Article VII, the aggregate proceeds from the Financing (after netting out applicable fees, expenses, original issue discount and similar premiums and chargers and after giving effect of the maximum amount of flex (including original issue discount flex) provided under the Commitment Letter) constitute all of the financing necessary to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing and, when taken together with cash or cash equivalents held by Parent and the Company funds that Purchaser currently has on the Closing Date and the other sources of funds available to Parent on the Closing Datehand, will be sufficient to pay, and will be used to pay, the aggregate Cash Consideration forming part of Securityholder Consideration under the Arrangement and to make all other necessary payments (including related fees and expenses) by Purchaser in amount to pay connection with the foregoing amounts in full. The only conditions precedent related to the obligations of the Financing Sources party to the Commitment Letter to fund the full amount of the Financing contemplated by the Commitment Letter are expressly set forth in the Commitment LetterArrangement.
Appears in 1 contract
Sufficient Funds. (a) Assuming the truth and accuracy Section 5.10 of the Company’s representations and warranties set Purchaser Disclosure Schedule sets forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and assuming satisfaction of the conditions in Article VII (other than the conditions set forth in Sections 7.2(a) and 7.2(b) and those conditions that by their nature can only be satisfied at the Closing, but subject to the satisfaction or waiver thereof), Parent and Merger Sub will have available to them at the Effective Time all funds and commitments necessary to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing. Parent has delivered to the Company true and complete copies of (i) a fully executed debt commitment letter, dated as of the date hereof a complete and accurate copy of this Agreement (including all exhibits thereto in effect on the date hereof) and (iia) the executed fee letter referenced therein, relating to fees with respect to the Financing contemplated by the commitment letter (collectively, the “Equity Commitment Letter”) from the investor named therein (the “Investor”), by and among Parent and the Financing Sources specified therein (with only fee amounts and other economic terms, and the rates and amounts included in the “flex” provisions, redacted, none of pursuant to which redacted provisions would adversely affect the conditionality, enforceability, termination or amount of the debt financing contemplated by the commitment letter). Pursuant to the Commitment Letter, and subject to the terms and conditions thereof, the Financing Sources party thereto have Investor has committed to provide Parent with invest the amounts set forth in the Commitment Letter for the purposes amount set forth therein (the debt financing contemplated in “Equity Financing”), (b) the executed commitment letter (the “Debt Commitment Letter”) from the lender named therein (the “Lender”) pursuant to which the Lender has agreed to lend the amounts set forth therein (the “Debt Financing”, and together with, unless with the context otherwise requires, any replacement financing, including any bank financing or debt securities issued in lieu thereofEquity Financing, the “Financing”), (c) the executed Contribution Agreement and (d) the executed Rollover Agreement. As Subject to the terms and conditions of the date of Debt Commitment Letter and this Agreement, the Commitment Letter is in full force and effect and has not been withdrawn, rescinded or terminated, or otherwise amended or modified in any respect and no amendment or modification is contemplated aggregate proceeds of the Financing together with Purchaser’s cash on hand (other than as set forth in the fee letters with respect to flex rights and/or to add additional lenders, arrangers, bookrunners, syndication agents and similar entities who had not executed the Commitment Letter as of the date hereof, as of the Acceptance Date and as of the Closing Date) as of the Closing will be sufficient to fully fund all of Purchaser’s and Sub’s obligations under this Agreement), including payment of the aggregate Offer Price, the Merger Consideration, the Option Consideration, the repurchase of the Convertible Notes in accordance with a “Fundamental Change” offer to be made pursuant to the terms of the Indenture (assuming all holders of Convertible Notes accept such offer) and the payment of all fees and expenses related to the Contemplated Transactions and which are due at the Closing. There are no (i) conditions precedent to the obligation of Investor to fund the Equity Financing, (ii) conditions precedent to the obligations of the Contributing Stockholders to contribute their Excluded Shares to Sub prior to the Effective Time, (iii) conditions precedent to the obligations of the stockholders under the Rollover Agreements to transfer their Rollover Shares to Sub prior to the Effective Time, or (iv) material or substantive conditions precedent to the obligation of the Lender to fund the Debt Financing, in each case other than as stated in the Equity Commitment Letter, in the form so deliveredDebt Commitment Letter, constitutes the Contribution Agreement and the Rollover Agreements, as applicable. There are no other agreements, side letters or arrangements that would permit Investor or the Lender to reduce the amount of the Equity Financing or the Debt Financing, respectively, or that could otherwise affect the availability of the Equity Financing or the Debt Financing or that could prevent or delay the transactions contemplated by the Contribution Agreement or the Rollover Agreements. The Equity Commitment Letter has been duly executed and delivered by, and is a valid and binding obligation of, Purchaser and Investor, subject to the Enforceability Exceptions. The Debt Commitment Letter has been duly executed and delivered by, and is a legal, valid and binding obligation of, Purchaser and the Lender, subject to the Enforceability Exceptions. The Contribution Agreement has been duly executed and delivered by, and is enforceable againsta valid and binding obligation of, Parent Purchaser and the Contributing Stockholders as well as their respective heirs, beneficiaries, devises, legatees and others claiming any right or interest through such stockholder. The Rollover Agreements have been duly executed and delivered by, and are a valid and binding obligation of, Purchaser and the stockholders named therein as well as their respective heirs, beneficiaries, devises, legatees and others claiming any right or interest through such stockholder. As of the date hereof, the Equity Commitment Letter, the Debt Commitment Letter, the Contribution Agreement and each Rollover Agreement are in full force and effect and none of the foregoing has been withdrawn or terminated or otherwise amended or modified in any respect. The terms of the Contribution Agreement shall not be amended, modified or waived after the date hereof in a manner that would reasonably be expected to change, delay or prevent the contributions thereunder immediately prior to the Acceptance Time or the Closing, as applicable, or delay or prevent the Closing. The Equity Commitment Letter does not violate the fund documents of the applicable Investor and such Investor has the ability to make capital calls sufficient to satisfy its obligations under the Equity Commitment Letter. The terms of the Rollover Agreements shall not be amended, modified or waived after the date hereof in a manner that would reasonably be expected to change, delay or prevent the transfers thereunder immediately prior to the Acceptance Time or the Closing, as applicable, or delay or prevent the Closing. All commitment and other fees required to be paid under the Equity Commitment Letter or the Debt Commitment Letter on or prior to the date hereof have been paid and, as of the date hereof, to the knowledge of ParentPurchaser, each there is no fact or occurrence existing that would make any of the other parties thereto, subject, in each case, to the Enforceability Exceptions. Except as statements (including assumptions) set forth in the Commitment Letter and except for any related commitment letters, engagement letters and fee letters related to the permanent financing described in the Equity Commitment Letter, as of the date of this AgreementDebt Commitment Letter, there are no contracts, agreements, “side letters” or other arrangements to which Parent or any of its affiliates is a party relating to the Commitment Letter Contribution Agreement or the Financing.
(b) As of the date of this Agreement, no event has occurred whichRollover Agreements inaccurate or which could, with or without notice, lapse of time or both, constitutes, or would reasonably be expected to constitute, constitute a default or breach by Parent oron the part of Purchaser, Investor, Lender or Sub or any other member of the Purchaser Group of any term thereunder. Concurrently with the execution of this Agreement, Purchaser and Sub have caused to be delivered to the Company a guarantee in the form attached hereto as Exhibit B (the “Guarantee”), pursuant to which ▇▇▇▇▇ Opportunistic Equity Fund, L.P., ▇▇▇▇▇ Opportunistic Equity Fund I-B, L.P., ▇▇▇▇▇ Opportunistic Equity Fund (TI), L.P., ▇▇▇▇▇ Opportunistic Equity Fund I-B (TI), L.P., and ▇▇▇▇▇ Traverse Partners LLC and ▇▇▇▇▇ Opportunistic Equity Fund II, L.P. (collectively, the “Guarantors”) are obligated, on the terms and subject to the conditions specified therein, with respect to the prompt and complete payment of Purchaser’s payment obligations under Section 8.2(c) and Section 8.2(f). The Guarantee has been duly authorized, executed and delivered by, and is a legal, valid and binding obligation of, the Guarantors, subject to the Enforceability Exceptions, and is in full force and effect. All commitment and other fees required to be paid under the Guarantee on or prior to the date hereof have been paid and, as of the date hereof, to the knowledge of ParentPurchaser, any other party thereto, of any term of the Commitment Letter. As of the date of this Agreement, there is no Financing Source party to the Commitment Letter has notified Parent of its termination fact or repudiation (or intent to terminate or repudiate) occurrence existing that would make any of the commitments under such Commitment Letter or intent not to provide the Financing. Assuming the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and assuming satisfaction of the conditions in Article VII (other than the conditions set forth in Sections 7.2(a) and 7.2(b) and those conditions that by their nature can only be satisfied at the Closing, but subject to the satisfaction or waiver thereof), Parent has no reason to believe that any of the conditions to the funding of the Financing contemplated by the Commitment Letter and contained in the Commitment Letter will fail to be satisfied on the Closing Date or that the full amounts committed pursuant to the Commitment Letter will not be available to be funded on the Closing Date to the extent required, when taken together with cash or cash equivalents held by Parent and the Company on the Closing Date and the other sources of funds available to Parent on the Closing Date, to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing.
(c) Parent acknowledges that its obligation to consummate the Merger as set forth in this Agreement is not contingent on Parent’s ability to obtain any financing, whether pursuant to the Commitment Letter or otherwise.
(d) Parent has fully paid (or caused to be paid) any and all commitment fees or other fees required by the Commitment Letter to be paid on or before the date of this Agreement. Assuming (i) the funding of the full amount of the Financing in accordance with and subject to the satisfaction of the conditions in the Commitment Letter, (ii) the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and (iii) satisfaction of the conditions in Article VII, the aggregate proceeds from the Financing (after netting out applicable fees, expenses, original issue discount and similar premiums and chargers and after giving effect of the maximum amount of flex statements (including original issue discount flexassumptions) provided under the Commitment Letter) constitute all of the financing necessary to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing and, when taken together with cash or cash equivalents held by Parent and the Company on the Closing Date and the other sources of funds available to Parent on the Closing Date, will be sufficient in amount to pay the foregoing amounts in full. The only conditions precedent related to the obligations of the Financing Sources party to the Commitment Letter to fund the full amount of the Financing contemplated by the Commitment Letter are expressly set forth in the Commitment LetterGuarantee inaccurate or which could, with or without notice, lapse of time or both, constitute a default or breach on the part of Purchaser, any Guarantor or Sub or any other member of the Purchaser Group of any term thereunder.
Appears in 1 contract
Sufficient Funds. (a) Assuming the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and assuming satisfaction of the conditions in Article VII (other than the conditions set forth in Sections 7.2(a) and 7.2(b) and those conditions that by their nature can only be satisfied at the Closing, but subject to the satisfaction or waiver thereof), Parent and Merger Sub will have available to them at the Effective Time all funds and commitments necessary to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing. Parent has delivered to the Company true and complete copies of (i) a fully executed debt commitment letter, dated as of the date of this Agreement (including all exhibits thereto in effect on the date hereof) and (ii) the executed fee letter referenced therein, relating to fees with respect to the Financing contemplated by the commitment letter (collectively, the “Commitment Letter”), by and among Parent and the Financing Sources specified therein (with only fee amounts and other economic terms, and the rates and amounts included in the “flex” provisions, redacted, none of which redacted provisions would adversely affect the conditionality, enforceability, termination or amount of the debt financing contemplated by the commitment letter). Pursuant to the Commitment Letter, and subject to the terms and conditions thereof, the Financing Sources party thereto have committed to provide Parent with the amounts set forth in the Commitment Letter for the purposes set forth therein (the debt financing contemplated in the Commitment Letter, together with, unless the context otherwise requires, any replacement financing, including any bank financing or debt securities issued in lieu thereof, the “Financing”). As of the date of this Agreement, Parent has delivered to the Company true, correct and complete copies of the executed commitment letter dated as of the date hereof (collectively, the “Debt Commitment Letter”; provided, that for purposes of this Agreement, the Debt Commitment Letter shall also include, after the date hereof, to the extent alternative financing from alternative financial institutions is obtained in accordance with Section 8.06(d), any commitment letters executed by such alternative financial institutions in respect of such alternative financing) from the Committed Financing Sources referenced therein; provided, that for purposes of this Agreement, the Committed Financing Sources shall also include, after the date hereof, to the extent alternative financing from alternative financial institutions is obtained in accordance with Section 8.06(d), any such alternative financial institution, together with executed fee letters referenced in the Debt Commitment Letter (collectively, the “Debt Fee Letters”) (it being understood that any such fee letter provided to the Company shall be redacted to omit the amount of fees, other numerical amounts and “flex provisions” provided therein and any other customarily redacted provisions provided therein (none of which would adversely affect the amount, conditionality or availability or termination of the Committed Financing)), pursuant to which, and subject only to the terms and conditions expressly set forth therein, the Committed Financing Sources have committed to lend the amounts set forth therein to Parent and/or Merger Sub for the purpose of funding the transactions contemplated by this Agreement (the “Committed Financing”); provided, that for purposes of this Agreement, the Committed Financing shall also include, after the date hereof, to the extent Alternative Committed Financing from alternative financial institutions is obtained in accordance with this Agreement, any such Alternative Committed Financing. As of the date hereof, other than the Debt Fee Letters, there are no side letters or other agreements, contracts or arrangements (except for customary engagement letters in respect of the Committed Financing and side letters or other agreements, contracts or arrangements expressly set forth in the Debt Commitment Letter) to which Parent or Merger Sub is a party relating to the Debt Commitment Letter.
(b) As of the date hereof, (i) the Debt Commitment Letter is in full force and effect and has not been withdrawn, rescinded withdrawn or terminated, terminated or otherwise amended amended, supplemented or modified in any respect manner that would affect the amount, availability or conditionality of the Committed Financing and (ii) no amendment such amendment, supplement or modification that is contemplated (other than as set forth in or would reasonably be expected to be adverse to the fee letters with respect to flex rights and/or to add additional lenders, arrangers, bookrunners, syndication agents and similar entities who had not executed the Commitment Letter as of the date of this Agreement), and the Company is contemplated. The Debt Commitment Letter, in the form so delivered, constitutes the is a legal, valid and binding obligation of, of Parent and is enforceable against, Parent Merger Sub and, to the knowledge of ParentParent as of the date hereof, each of the other parties thereto, subjectexcept as such enforceability may be subject to bankruptcy, in each caseinsolvency, to the Enforceability Exceptions. Except as set forth in the Commitment Letter reorganization, moratorium and except for any related commitment letters, engagement letters and fee letters related to the permanent financing described in the Commitment Letter, as of the date of this Agreement, there are no contracts, agreements, “side letters” or other arrangements to which Parent or any of its affiliates is a party similar Laws relating to the Commitment Letter or the Financing.
(b) affecting creditors’ rights or to general principles of equity. As of the date of this Agreementhereof, no event has occurred which, with or without notice, lapse of time or both, constitutes, or would reasonably be expected to constitute, constitute a default or breach by on the part of Parent oror Merger Sub under any term, or a failure of any condition (assuming satisfaction of the conditions in Sections 4.01 and 4.03), of the Debt Commitment Letter, or otherwise result in the Committed Financing being unavailable or delayed. There are no conditions precedent or other contingencies relating to the knowledge of Parent, any other party thereto, of any term funding of the full amount of the Committed Financing, other than as set forth in the Debt Commitment Letter. As of the date hereof, neither Parent nor Merger Sub has reason to believe that it would be unable to satisfy on a timely basis any condition to Closing of the Debt Commitment Letter required to be satisfied by it, nor does Parent have knowledge, as of the date of this Agreement, no Financing Source party to the Commitment Letter has notified Parent of its termination or repudiation (or intent to terminate or repudiate) any of the commitments under such Commitment Letter or intent not to provide the Financing. Assuming the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and assuming satisfaction of the conditions in Article VII (other than the conditions set forth in Sections 7.2(a) and 7.2(b) and those conditions that by their nature can only be satisfied at the Closing, but subject to the satisfaction or waiver thereof), Parent has no reason to believe that any of the conditions to Committed Financing Sources will not perform the respective funding of obligations under the Financing contemplated by the Debt Commitment Letter and contained in the Commitment Letter will fail to be satisfied on the Closing Date or that the full amounts committed pursuant to the Commitment Letter will not be available to be funded on the Closing Date to the extent required, when taken together with cash or cash equivalents held by Parent and the Company on the Closing Date and the other sources of funds available to Parent on the Closing Date, to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 its terms and to pay the fees conditions. Parent and expenses relating to the Merger and the Financing.
(c) Parent acknowledges that its obligation to consummate the Merger as set forth in this Agreement is not contingent on Parent’s ability to obtain any financing, whether pursuant to the Commitment Letter or otherwise.
(d) Parent has Sub have fully paid (or caused to be paid) any and all commitment fees or other fees required by the Commitment Letter to be paid that are due and payable on or before the date of this Agreement pursuant to the Debt Commitment Letter and will have fully paid on or prior to the Closing any and all commitment fees or other fees as they become due and payable after the date of this Agreement pursuant to the Debt Commitment Letter.
(c) Assuming the accuracy of the representations and warranties in Article V to the extent necessary to satisfy the conditions in Section 4.01(a) and 4.01(b) and the performance of the Company of its obligations under this Agreement. Assuming , the net proceeds of the Committed Financing, when and if funded in accordance with the Debt Commitment Letter, together with Parent’s cash on hand, will be, in the aggregate, sufficient to (i) make all payments contemplated by this Agreement in connection with the funding Merger (including the payment of all amounts payable pursuant to Article II in connection with or as a result of the full amount of the Financing in accordance with Merger) and subject to the satisfaction of the conditions in the Commitment Letter, (ii) the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in pay all material respects, and (iii) satisfaction of the conditions in Article VII, the aggregate proceeds from the Financing (after netting out applicable fees, expenses, original issue discount and similar premiums and chargers and after giving effect of the maximum amount of flex (including original issue discount flex) provided under the Commitment Letter) constitute all of the financing necessary to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating required to the Merger and the Financing and, when taken together with cash or cash equivalents held by Parent and the Company on be paid at the Closing Date and the other sources of funds available to Parent on the Closing Date, will be sufficient in amount to pay the foregoing amounts in full. The only conditions precedent related to the obligations of the Financing Sources party to the Commitment Letter to fund the full amount of the Financing contemplated by the Commitment Letter are expressly set forth Parent or Merger Sub in connection with the Commitment LetterMerger.
Appears in 1 contract
Sufficient Funds. (a) Assuming the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and assuming satisfaction of the conditions in Article VII (other than the conditions set forth in Sections 7.2(a) and 7.2(b) and those conditions that by their nature can only be satisfied at the Closing, but subject to the satisfaction or waiver thereof), Parent and Merger Sub will have available to them at the Effective Time all funds and commitments necessary to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing. Parent has delivered to the Company a true and complete copies copy of (i) a the fully executed debt commitment letter, dated as of the date of this Agreement hereof (including all exhibits thereto in effect on the date hereof) and (ii) the executed fee letter referenced therein, relating to fees with respect to the Financing contemplated by the commitment letter (collectively, the “Equity Commitment Letter”), by and among between Parent and the Financing Sources specified therein (with Guarantor, pursuant to which the Guarantor has committed, subject only fee amounts and other economic terms, and the rates and amounts included in the “flex” provisions, redacted, none of which redacted provisions would adversely affect the conditionality, enforceability, termination or amount of the debt financing contemplated by the commitment letter). Pursuant to the Commitment Letter, and subject to the terms and conditions thereofof the Equity Commitment Letter, the Financing Sources party thereto have committed to provide Parent with invest the amounts set forth in therein on the Commitment Letter for the purposes set forth therein Closing Date (the debt financing contemplated “Equity Financing”).
(b) Assuming the Equity Financing is funded in accordance with the Equity Commitment Letter, together with, unless the context otherwise requires, any replacement financing, including any bank financing or debt securities issued in lieu thereof, the “Financing”). As accuracy of the date representations and warranties of the Company and the Partnership set forth in this Agreement and the performance in all material respects by the Company and the Partnership of their obligations under this Agreement, at the Closing, Parent will have sufficient cash on hand to consummate the transactions contemplated by this Agreement and satisfy all of its obligations under this Agreement, including the payment of the Merger Consideration, any fees and expenses of or payable by Parent, Merger Sub I, Merger Sub II or the Surviving Company, any payments in respect of equity compensation obligations required to be made in connection with, or as a result of, the Mergers and any repayment or refinancing of any outstanding Indebtedness of Parent, the Company and their respective Subsidiaries required in connection therewith.
(c) The Equity Commitment Letter is in full force and effect and has not been withdrawn, rescinded (and will not be prior to the Closing or terminated, or otherwise amended or modified in any respect and no amendment or modification is contemplated (other than as set forth in the fee letters with respect to flex rights and/or to add additional lenders, arrangers, bookrunners, syndication agents and similar entities who had not executed the Commitment Letter as of the date valid termination of this Agreement)) withdrawn, terminated or rescinded or otherwise amended, supplemented or modified (and the is not contemplated to be amended, supplemented or modified) in any respect. The Equity Commitment Letter, in the form so delivereddelivered to the Company as of the date hereof, constitutes the legal, valid and binding obligation of, and is enforceable against, Parent and, to of all the knowledge of Parent, each of the other parties thereto, subjectenforceable against Parent and the Guarantor in accordance with and subject to its terms and conditions, in each case, to except as enforceability may be limited by the Enforceability ExceptionsBankruptcy and Equity Exception. Except as set forth in the Commitment Letter and except for any related commitment There are no side letters, engagement letters and fee letters related to the permanent financing described in the Commitment Letter, as of the date of this Agreement, there are no contracts, agreements, “side letters” understandings or other Contracts or arrangements to which Parent or any of its affiliates is a party relating to the Equity Commitment Letter that could affect the conditionality, enforceability, availability, termination or the Financing.
(b) As aggregate amount of the date of this Agreement, no Equity Financing. No event has occurred which, with or without notice, lapse of time or both, constitutes, or would reasonably be expected to constitute, could constitute a default or breach by Parent orunder any term, to the knowledge or a failure of Parent, any other party theretocondition, of the Equity Commitment Letter or otherwise result in any term portion of the Commitment LetterEquity Financing contemplated thereby being unavailable on the date on which the Closing should occur pursuant to Section 1.5. As Assuming the accuracy of the date representations and warranties of the Company and the Partnership set forth in this Agreement, no Financing Source party to the Commitment Letter has notified Parent of its termination or repudiation (or intent to terminate or repudiate) any of the commitments under such Commitment Letter or intent not to provide the Financing. Assuming the truth and accuracy of the Company’s representations and warranties set forth performance in Article III and compliance all material respects by the Company with its and the Partnership of their obligations hereunder, in each case, in all material respects, under this Agreement and assuming satisfaction of the conditions in Article VII (other than the conditions set forth in Sections 7.2(a) and 7.2(b) and those conditions that by their nature can only be satisfied at the Closing, but subject to the satisfaction (or waiver thereof), Parent has no reason to believe that any waiver) of the conditions to the funding obligation of Parent, Merger Sub I and Merger Sub II to consummate the Mergers set forth in Section 6.1 and Section 6.2, Parent does not have any reason to believe that it or the Guarantor would be unable to satisfy on a timely basis any term or condition of the Financing contemplated by the Equity Commitment Letter and contained in the Commitment Letter will fail required to be satisfied on the Closing Date or that the full amounts committed pursuant to the Commitment Letter will not be available to be funded on the Closing Date to the extent required, when taken together with cash or cash equivalents held by Parent and or the Company on the Closing Date and the other sources of funds available to Guarantor, as applicable. Parent on the Closing Date, to refinance has paid in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing.
(c) Parent acknowledges that its obligation to consummate the Merger as set forth in this Agreement is not contingent on Parent’s ability to obtain any financing, whether pursuant to the Commitment Letter or otherwise.
(d) Parent has fully paid (or caused to be paid) any and all commitment fees or other fees required by the Equity Commitment Letter to be paid on or before the date of this Agreement, and will pay in full any such amounts due on or before the Closing Date. Assuming (i) There are no conditions precedent or other contingencies related to the funding of the full amount of the Financing in accordance with and subject to the satisfaction of the conditions in the Commitment LetterEquity Financing, (ii) the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and (iii) satisfaction of the conditions in Article VII, the aggregate proceeds from the Financing (after netting out applicable fees, expenses, original issue discount and similar premiums and chargers and after giving effect of the maximum amount of flex (including original issue discount flex) provided under the Commitment Letter) constitute all of the financing necessary to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing and, when taken together with cash or cash equivalents held by Parent and the Company on the Closing Date and the other sources of funds available to Parent on the Closing Date, will be sufficient in amount to pay the foregoing amounts in full. The only conditions precedent related to the obligations of the Financing Sources party to the Commitment Letter to fund the full amount of the Financing contemplated by the Commitment Letter are than as expressly set forth in the Equity Commitment Letter. In no event shall the receipt or availability of any funds or financing (including, for the avoidance of doubt, the Equity Financing) by Parent, Merger Sub I, Merger Sub II or any of their respective affiliates or any other financing or other transactions be a condition to any of Parent’s, Merger Sub I’s or Merger Sub II’s obligations under this Agreement.
(d) In no event shall the receipt or availability of any funds or financing (including the Financing) by Parent or any of its affiliates or any other financing be a condition to any of Parent’s obligations under this Agreement.
Appears in 1 contract
Sufficient Funds. (a) Assuming Tyler will have at the truth and accuracy Closing access to all of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and assuming satisfaction of the conditions in Article VII (other than the conditions set forth in Sections 7.2(a) and 7.2(b) and those conditions funds that by their nature can only be satisfied at the Closing, but subject to the satisfaction or waiver thereof), Parent and Merger Sub will have available to them at the Effective Time all funds and commitments are necessary to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and for it to pay the fees Merger Consideration and expenses relating all other required payments payable in connection with the Transactions and to consummate the Merger Transactions, and the Financingto perform its obligations under this Agreement. Parent Tyler has delivered to the Company true NIC complete, correct and complete fully executed copies of a commitment letter and related fee letters (i) which in the case of such fee letters may be subject to redaction in a fully executed debt commitment letter, dated as of the date of this Agreement (including all exhibits thereto in effect on the date hereof) and (ii) the executed fee letter referenced therein, relating to fees customary manner with respect to the Financing contemplated by the commitment letter fee amounts, including fee amounts in any flex terms) (collectively, the “Commitment Letter”), by and among Parent and the ) from any Financing Sources specified therein (with only fee amounts pursuant to which such Financing Sources have committed to provide to Tyler and other economic termsMerger Sub, and upon the rates and amounts included in the “flex” provisions, redacted, none of which redacted provisions would adversely affect the conditionality, enforceability, termination or amount of the debt financing contemplated by the commitment letter). Pursuant to the Commitment Letter, terms and subject to the terms and conditions thereofset forth therein, the Financing Sources party thereto have committed to provide Parent with debt financing in the amounts set forth in therein for purposes of financing the Commitment Letter for the purposes set forth therein Transactions, and paying related fees and expenses (the such debt financing contemplated in the Commitment Letter, together with, unless the context otherwise requires, any replacement financing, including any bank financing or debt securities issued in lieu thereof, the “Initial Financing”). As of the date of this Agreementhereof, the Commitment Letter is in full force and effect and is a valid and binding obligation of Tyler and, to the Knowledge of Tyler, the other parties thereto, in each case subject to the General Enforceability Exceptions. As of the date hereof, the Commitment Letter has not been amended or modified in any material respect, and, to the Knowledge of Tyler, the commitments contained in the Commitment Letter have not been withdrawn, rescinded or terminated, or otherwise amended or modified in any respect and no amendment or modification is material respect. The Commitment Letter delivered to NIC contains all of the conditions precedent to the obligations of the parties thereunder to fund the full amount of the Initial Financing contemplated (other by the Commitment Letter. Other than as set forth in the fee letters with respect to flex rights and/or to add additional lenders, arrangers, bookrunners, syndication agents and similar entities who had not executed the Commitment Letter itself (including the redacted fee letter provided to NIC as of the date of this Agreement), hereof) and the Commitment Letter, in the form so delivered, constitutes the legal, valid and binding obligation of, and is enforceable against, Parent and, to the knowledge of Parent, each of the other parties thereto, subject, in each case, to the Enforceability Exceptions. Except as set forth in the Commitment Letter and except for any related commitment letters, than certain customary engagement letters and fee letters related confidentiality agreements with respect to the permanent financing described in the Commitment Letter, as of the date of this AgreementInitial Financing, there are no contractsother fee letters, engagement letters, side letters, agreements, “side letters” contracts or other arrangements to which Parent or any of its affiliates is a party relating to the Commitment Letter or the Financing.
(b) Letter. As of the date of this Agreementhereof, no event has occurred which, with or without notice, lapse of time or both, constitutes, would constitute or would reasonably be expected to constitute, constitute a default or breach by Parent oron the part of Tyler under any material term of, to the knowledge of Parent, any other party thereto, or a failure of any term condition or inability to satisfy any conditions precedent to funding the full amount of the Initial Financing under, the Commitment LetterLetter or otherwise result in any portion of the Initial Financing to be unavailable or materially delayed. As of the date of this Agreementhereof, no Financing Source party to the Commitment Letter has notified Parent of its termination or repudiation (or intent to terminate or repudiate) any of the commitments under such Commitment Letter or intent Tyler does not to provide the Financing. Assuming the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and assuming satisfaction of the conditions in Article VII (other than the conditions set forth in Sections 7.2(a) and 7.2(b) and those conditions that by their nature can only be satisfied at the Closing, but subject to the satisfaction or waiver thereof), Parent has no have reason to believe that it will be unable to satisfy on a timely basis any of the conditions condition to the funding of the Initial Financing contemplated by under the Commitment Letter and contained in the Commitment Letter will fail required to be satisfied on by it at or prior to the Closing Date Closing, or that any portion of the full amounts committed pursuant Initial Financing contemplated thereby will be unavailable to Tyler at the Commitment Letter will not be available to be funded on the Closing Date to the extent required, when taken together with cash or cash equivalents held by Parent and the Company on the Closing Date and the other sources of funds available to Parent on the Closing Date, to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing.
(c) Parent acknowledges that its obligation to consummate the Merger as set forth in this Agreement is not contingent on Parent’s ability to obtain any financing, whether pursuant to the Commitment Letter or otherwise.
(d) Parent Closing. Tyler has fully paid (or caused to be paid) any and all commitment fees or other fees required by in connection with the Commitment Letter to be paid that are due and payable on or before the date of this Agreement. Assuming (i) the funding Each of the full amount of the Financing in accordance with Tyler and subject Merger Sub affirms that it is not a condition to the satisfaction Merger or any of the conditions in the Commitment Letter, (ii) the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance by the Company with its other obligations hereunder, in each case, in all material respects, and (iii) satisfaction of the conditions in Article VII, the aggregate proceeds from under this Agreement that Tyler or Merger Sub obtain the Financing (after netting out applicable fees, expenses, original issue discount and similar premiums and chargers and after giving effect including the Initial Financing) or any other financing for or related to any of the maximum amount of flex (including original issue discount flex) provided under the Commitment Letter) constitute all of the financing necessary to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing and, when taken together with cash or cash equivalents held by Parent and the Company on the Closing Date and the other sources of funds available to Parent on the Closing Date, will be sufficient in amount to pay the foregoing amounts in full. The only conditions precedent related to the obligations of the Financing Sources party to the Commitment Letter to fund the full amount of the Financing contemplated by the Commitment Letter are expressly set forth in the Commitment LetterTransactions.
Appears in 1 contract
Sources: Merger Agreement (Nic Inc)
Sufficient Funds. (a) Assuming the truth and accuracy Parent or Merger Sub has or will have as of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and assuming satisfaction of the conditions in Article VII (other than the conditions set forth in Sections 7.2(a) and 7.2(b) and those conditions that by their nature can only be satisfied at the Closing, but subject to the satisfaction or waiver thereof), Parent and Merger Sub will have available to them at the Effective Appointment Time all funds and commitments necessary to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company IndenturesClosing sufficient cash available, directly or through one or more Affiliates, to pay the aggregate Offer Price and the aggregate Merger Consideration and there is no restriction on the use of such cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating or cash equivalents for such purpose.
(b) Prior to the Merger and the Financing. date hereof, Parent has delivered to the Company true a true, complete and complete copies correct copy of (i) a fully an executed debt commitment letter, facility agreement dated as of the date of this Agreement hereof by and among Parent, Reckitt Benckiser Treasury Services PLC (including all exhibits thereto in effect on the date hereof) and (ii) the executed fee letter referenced therein, relating to fees with respect to the Financing contemplated by the commitment letter (collectively, the “Commitment LetterRBTS”), by Barclays Capital and among Parent Barclays Bank PLC (the “Facility Agreement”) committing such lenders to provide to RBTS debt financing in amounts sufficient to consummate the Offer and the Financing Sources specified Merger, subject to the terms and conditions set forth therein (with only fee amounts and other economic terms, and the rates and amounts included in the “flex” provisions, redacted, none of which redacted provisions would adversely affect the conditionality, enforceability, termination Financing”). There are no conditions precedent or amount of other contingencies to obtaining the debt financing contemplated by the commitment letter). Pursuant to the Commitment Letter, and subject to the terms and conditions thereof, the Financing Sources party thereto have committed to provide Parent with the amounts Facility Agreement other than expressly as set forth in the Commitment Letter for the purposes set forth therein (the debt financing contemplated in the Commitment Letter, together with, unless the context otherwise requires, any replacement financing, including any bank financing or debt securities issued in lieu thereof, the “Financing”)therein. As of the date of this Agreement, the Commitment Letter is in full force and effect and has not been withdrawn, rescinded or terminated, or otherwise amended or modified in any respect and no amendment or modification is contemplated (other than as set forth in the fee letters with respect to flex rights and/or to add additional lenders, arrangers, bookrunners, syndication agents and similar entities who had not executed the Commitment Letter as of the date of this Agreement), and the Commitment Letter, in the form so delivered, constitutes the legal, valid and binding obligation of, and is enforceable against, Parent andhereof, to the knowledge of Parent, each of the other parties thereto, subject, in each case, to the Enforceability Exceptions. Except as set forth in the Commitment Letter and except for any related commitment letters, engagement letters and fee letters related to the permanent financing described in the Commitment Letter, as of the date of this Agreement, there are no contracts, agreements, “side letters” or other arrangements to which Parent or any of its affiliates is a party relating to the Commitment Letter or the Financing.
(b) As of the date of this Agreement’s Knowledge, no event has occurred whichthat, with or without notice, lapse of time or both, constituteswould constitute a default on the part of Parent or RBTS under the Facility Agreement. Parent is not aware of any fact, occurrence or condition that makes any of the assumptions, statements, representations or warranties contained in the Facility Agreement inaccurate in any material respect or that would reasonably be expected to constitute, a default cause the Facility Agreement to be terminated or breach by Parent or, to the knowledge of Parent, any other party thereto, of any term of the Commitment Letter. As of the date of this Agreement, no Financing Source party to the Commitment Letter has notified Parent of its termination ineffective or repudiation (or intent to terminate or repudiate) any of the commitments under such Commitment Letter or intent not to provide the Financing. Assuming the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and assuming satisfaction of the conditions in Article VII (other than the conditions set forth in Sections 7.2(a) and 7.2(b) and those conditions that by their nature can only be satisfied at the Closing, but subject to the satisfaction or waiver thereof), Parent has no reason to believe that any of the conditions to the funding of the Financing contemplated by the Commitment Letter and contained in the Commitment Letter will fail therein not to be satisfied on the Closing Date or that the full amounts committed pursuant to the Commitment Letter will not be available to be funded on the Closing Date to the extent required, when taken together with cash or cash equivalents held by met. Parent and the Company on the Closing Date and the other sources of funds available to Parent on the Closing Date, to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing.
(c) Parent acknowledges that its obligation to consummate the Merger as set forth in this Agreement is not contingent on Parent’s ability to obtain any financing, whether pursuant to the Commitment Letter or otherwise.
(d) Parent has RBTS have fully paid (or caused to be paid) any and all commitment fees or other fees required by the Commitment Letter Facility Agreement to be paid on or before as of the date of this Agreementhereof. Assuming (i) the funding The Facility Agreement is in full force and effect and, as of the full amount of the Financing in accordance with and subject date hereof, Parent has no reason to believe that it will be unable to satisfy on a timely basis any term or condition thereof to the satisfaction of the conditions in the Commitment Letter, (ii) the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and (iii) satisfaction of the conditions in Article VII, the aggregate proceeds from the Financing (after netting out applicable fees, expenses, original issue discount and similar premiums and chargers and after giving effect of the maximum amount of flex (including original issue discount flex) provided under the Commitment Letter) constitute all of the financing necessary to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing and, when taken together with cash or cash equivalents held by Parent and the Company on the Closing Date and the other sources availability of funds available to Parent on the Closing Date, will be sufficient in amount to pay the foregoing amounts in full. The only conditions precedent related to the obligations of the Financing Sources party to the Commitment Letter to fund the full amount of the Financing contemplated by the Commitment Letter are expressly set forth in the Commitment Letterthereunder.
Appears in 1 contract
Sources: Merger Agreement (Adams Respiratory Therapeutics, Inc.)
Sufficient Funds. (a) Assuming At the truth and accuracy Effective Time, assuming the satisfaction of the Company’s representations closing conditions in Section 7.2 and warranties set forth in Article III and compliance performance by the Company with its obligations hereunder, in each case, in all material respectsrespects of its obligations under Section 5.1, the net proceeds from the Financing will, together with the cash or cash equivalents available to the Company, in the aggregate be sufficient for Merger Sub and assuming satisfaction the Surviving Corporation to (i) consummate the Merger, (ii) pay or refinance all Company debt that is required to be paid or refinanced upon consummation of the conditions in Article VII (other than the conditions set forth in Sections 7.2(a) and 7.2(b) and those conditions that by their nature can only be satisfied at the Closing, but subject Merger pursuant to the satisfaction or waiver thereof)Debt Financing Commitments and (iii) to pay all fees and expenses incurred by Parent, Parent and Merger Sub will have available to them at the Effective Time all funds and commitments necessary to refinance in full all amounts outstanding under the Company Credit Agreement, (including the Company Receivables Financing Special Committee) in connection with this Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 Transaction upon the terms and to pay the fees and expenses relating to the Merger and the Financingconditions contemplated by this Agreement. Parent has delivered to the Company true and complete copies of (i) a fully executed debt commitment letter, dated as of the date of this Agreement (including all exhibits thereto in effect on the date hereof) and (ii) the executed fee letter referenced therein, relating to fees with respect to the Financing contemplated by the commitment letter (collectively, the “Commitment Letter”), by and among Parent and the Financing Sources specified therein (with only fee amounts and other economic terms, and the rates and amounts included in the “flex” provisions, redacted, none of which redacted provisions would adversely affect the conditionality, enforceability, termination or amount of the debt financing contemplated by the commitment letter). Pursuant to the Commitment Letter, and subject to the terms and conditions thereof, the Financing Sources party thereto have committed to provide Parent with the amounts set forth in the Commitment Letter for the purposes set forth therein (the debt financing contemplated in the Commitment Letter, together with, unless the context otherwise requires, any replacement financing, including any bank financing or debt securities issued in lieu thereof, the “Financing”). As of the date of this Agreement, the Commitment Letter is in full force and effect and has not been withdrawn, rescinded or terminated, or otherwise amended or modified in any respect and no amendment or modification is contemplated (other than as set forth in the fee letters with respect to flex rights and/or to add additional lenders, arrangers, bookrunners, syndication agents and similar entities who had not executed the Commitment Letter as of the date of this Agreement), and the Commitment Letter, in the form so delivered, constitutes the legal, valid and binding obligation of, and is enforceable against, Parent and, to the knowledge of Parent, each of the other parties thereto, subject, in each case, to the Enforceability Exceptions. Except as set forth in the Commitment Letter and except for any related commitment letters, engagement letters and fee letters related to the permanent financing described in the Commitment LetterCompany, as of the date of this Agreement, there are no contractstrue, agreementscomplete and correct copies of (i) executed commitment letters (the “Debt Financing Commitments”), “side letters” or other arrangements pursuant to which Parent or any of its affiliates is a party relating the lender parties thereto (together with their officers, employees, directors, affiliates, partners, controlling parties, advisors, agents and representatives, the “Financing Sources”) have agreed, subject to the Commitment Letter terms and conditions thereof, to provide or cause to be provided the debt amounts set forth therein (the “Debt Financing.
”), and (bii) As an executed equity commitment letter (the “Equity Financing Commitment”, and together with the Debt Financing Commitments, the “Financing Commitments”), pursuant to which ▇▇▇▇▇▇ ▇. ▇▇▇ Equity Fund VI, L.P. have committed, subject to the terms and conditions thereof, to invest the amount set forth therein (the “Equity Financing”, and together with the Debt Financing, the “Financing”). The Financing Commitments are in full force and effect as of the date of this Agreement, and are legal, valid and binding obligations of Parent and the other parties thereto. As of the date hereof, no material amendment or material modification of the Financing Commitments has been or made and the respective commitments contained in the Financing Commitments have not been withdrawn or rescinded in any respect. Parent or Merger Sub has fully paid any and all commitment fees or other fees in connection with the Financing Commitments that are payable on or prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, constitutes, or would reasonably be expected to constitute, constitute a default or breach by on the part of Parent oror Merger Sub under any Financing Commitment; provided, to that Parent and Merger Sub are not making any representations regarding the knowledge of Parent, any other party thereto, of any term effect of the Commitment Letter. As inaccuracy of the representations and warranties set forth in Article III; and as of the date of this Agreement, no Financing Source party to assuming the Commitment Letter has notified Parent of its termination or repudiation (or intent to terminate or repudiate) any of the commitments under such Commitment Letter or intent not to provide the Financing. Assuming the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance performance by the Company with its obligations hereunder, in each case, in all material respectsrespects of its obligations under Section 5.1, and assuming satisfaction of the conditions in Article VII (other than the conditions set forth in Sections 7.2(a) and 7.2(b) and those conditions that by their nature can only be satisfied at the Closing, but subject to the satisfaction or waiver thereof), neither Parent nor Merger Sub has no reason any reasonable basis to believe that it will be unable to satisfy on a timely basis any material term or condition of Closing to be satisfied by it in any of the Financing Commitments on or prior to the Closing Date. There are no precedent conditions related to the funding of the Financing contemplated by the Commitment Letter and contained in the Commitment Letter will fail to be satisfied on the Closing Date or that the full amounts committed pursuant to the Commitment Letter will not be available to be funded on the Closing Date to the extent requiredinvesting, when taken together with cash or cash equivalents held by Parent and the Company on the Closing Date and the other sources of funds available to Parent on the Closing Dateas applicable, to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing.
(c) Parent acknowledges that its obligation to consummate the Merger as set forth in this Agreement is not contingent on Parent’s ability to obtain any financing, whether pursuant to the Commitment Letter or otherwise.
(d) Parent has fully paid (or caused to be paid) any and all commitment fees or other fees required by the Commitment Letter to be paid on or before the date of this Agreement. Assuming (i) the funding of the full amount of the Financing in accordance with and subject to the satisfaction of the conditions in the Commitment Letter, (ii) the truth and accuracy of the Company’s representations and warranties other than as expressly set forth in Article III and compliance or contemplated by the Company with its obligations hereunder, in each case, in all material respects, and (iii) satisfaction Financing Commitments. As of the conditions in Article VIIdate hereof, the aggregate proceeds from the Financing there are no side letters or other agreements, contracts or arrangements (after netting out applicable fees, expenses, original issue discount except for customary fee letters and similar premiums and chargers and after giving effect of the maximum amount of flex (including original issue discount flexengagement letters) provided under the Commitment Letter) constitute all of the financing necessary to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing and, when taken together with cash or cash equivalents held by Parent and the Company on the Closing Date and the other sources of funds available to Parent on the Closing Date, will be sufficient in amount to pay the foregoing amounts in full. The only conditions precedent related to the obligations funding or investing, as applicable, of the Financing Sources party to the Commitment Letter to fund the full amount of the Debt Financing contemplated by the Commitment Letter are other than as expressly set forth in or contemplated by the Commitment LetterDebt Financing Commitments. Concurrently with the execution and delivery of this Agreement, Parent has delivered to the Company the Guaranty. The obligations of Parent and Merger Sub under this Agreement and the obligations of the Guarantor under the Guaranty are not contingent in any respect upon the funding of the amounts contemplated to be funded pursuant to the Financing Commitments.
Appears in 1 contract
Sufficient Funds. (a) Assuming the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and assuming satisfaction of the conditions in Article VII (other than the conditions set forth in Sections 7.2(a) and 7.2(b) and those conditions that by their nature can only be satisfied at the Closing, but subject to the satisfaction or waiver thereof), Parent and Merger Sub will The Purchasing Parties have available to them at the Effective Time all funds and commitments necessary to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing. Parent has delivered to the Company Seller Parent true and complete copies of (i) a fully an executed debt commitment letter, dated as letter from Purchaser Guarantor (the “Equity Funding Letter”) to provide equity financing in an aggregate amount of at least $345,500,000 (the date of this Agreement (including all exhibits thereto in effect on the date hereof“Equity Financing”) and (ii) the executed fee letter referenced therein, relating to fees with respect to the Financing contemplated by the debt commitment letter letters from Citigroup Global Markets Inc. (collectively, the “Commitment LetterFinancing Commitments”), by and among Parent and the Financing Sources specified therein pursuant to which Citigroup Global Markets Inc. has agreed to provide or cause to be provided at least $505,000,000 at Closing (with only fee amounts and other economic terms, and the rates and amounts included in the “flex” provisionsDebt Financing”, redactedand, none of which redacted provisions would adversely affect the conditionality, enforceability, termination or amount of the debt financing contemplated by the commitment letter). Pursuant to the Commitment Letter, and subject to the terms and conditions thereof, the Financing Sources party thereto have committed to provide Parent together with the amounts set forth in the Commitment Letter for the purposes set forth therein (the debt financing contemplated in the Commitment Letter, together with, unless the context otherwise requires, any replacement financing, including any bank financing or debt securities issued in lieu thereofEquity Financing, the “Financing”). As The Purchasing Parties have disclosed and made available to the Selling Parties all other agreements, arrangements or understandings (whether oral or written) related to the Financing, provided that the Purchasing Parties may redact in such documents the fee amounts payable to their financing sources under the Financing Commitments. Such fee amounts are customary for debt financings similar to the Debt Financing. Except as otherwise permitted by this Agreement, none of the Equity Funding Letter or Financing Commitments has been or will be amended or modified, and the respective commitments contained in the Equity Funding Letter and the Financing Commitments have not been withdrawn or rescinded in any respect as of the date of this Agreement. Except to the extent amended in accordance with its terms, the Commitment Equity Funding Letter is in full force and effect and has not been withdrawn, rescinded or terminated, or otherwise amended or modified in any respect and no amendment or modification is contemplated (other than as set forth in the fee letters with respect to flex rights and/or to add additional lenders, arrangers, bookrunners, syndication agents and similar entities who had not executed the Commitment Letter as of the date of this Agreement), and the Commitment Letter, in the form so delivered, constitutes the a legal, valid and binding obligation of, of the Purchasing Parties that are party thereto and the other party thereto. Each of the Financing Commitments is in full force and effect and is enforceable againsta legal, Parent valid and binding obligation of the Purchasing Parties and, to the knowledge of Parentthe Purchasing Parties, each of the other parties thereto, subject, in each case, to the Enforceability Exceptions. Except as set forth in the Commitment Letter and except for any related commitment letters, engagement letters and fee letters related to the permanent financing described in the Commitment Letter, as of the date of this Agreement, there are no contracts, agreements, “side letters” or other arrangements to which Parent or any of its affiliates is a party relating to the Commitment Letter or the Financing.
(b) As of the date of this Agreement, no event has occurred which, with or without notice, lapse of time or both, constitutes, or would reasonably be expected to constitute, constitute a default or breach by Parent or, on the part of the Purchasing Parties or their respective Affiliates under any term or condition of the Equity Funding Letter or the Financing Commitments. There are no conditions precedent relating to the knowledge of Parent, any other party thereto, of any term funding of the Commitment Letterfull amount of the Financing, other than as set forth in the Equity Funding Letter and the Financing Commitments. As of the date of this Agreement, no Financing Source party to the Commitment Letter has notified Parent of its termination or repudiation (or intent to terminate or repudiate) any of the commitments under such Commitment Letter or intent not to provide the Financing. Assuming the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and assuming satisfaction of the conditions in Article VII (other than the conditions set forth in Sections 7.2(a) and 7.2(b) and those conditions that by their nature can only be satisfied at the Closing, but subject to the satisfaction or waiver thereof), Parent has Purchasing Parties have no reason to believe that any of the conditions relating to the funding of the full amount of the Financing contemplated by the Commitment Letter and contained in the Commitment Letter will fail to not be satisfied on the Closing Date or that the full amounts committed pursuant prior to the Commitment Letter will not be available to be funded on the Closing Date to the extent required, when taken together with cash or cash equivalents held by Parent and the Company on the Closing Date and the other sources of funds available to Parent on the Closing Date, to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing.
(c) Parent acknowledges that its obligation to consummate the Merger as set forth in this Agreement is not contingent on Parent’s ability to obtain any financing, whether pursuant to the Commitment Letter or otherwise.
(d) Parent has . The Purchasing Parties have fully paid (or caused to be paid) any and all commitment fees or other fees required by the Commitment Letter Financing Commitments to be paid on or before prior to the date of this AgreementAgreement and shall in the future pay any such fees as they become due. Assuming (i) the funding of the full amount of the Financing The Financing, when funded in accordance with the Equity Funding Letter and subject to the satisfaction of the conditions in the Commitment Letter, (ii) the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and (iii) satisfaction of the conditions in Article VII, the aggregate proceeds from the Financing (after netting out applicable feesCommitments, expenses, original issue discount and similar premiums and chargers and after giving effect of will provide Purchaser with funds sufficient to consummate the maximum amount of flex (including original issue discount flex) provided under the Commitment Letter) constitute all of the financing necessary to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement Acquisition and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 other transactions contemplated by this Agreement and to pay the all related fees and expenses. The fees and expenses relating to of the Merger and Purchasing Parties in connection with the Acquisition, the Financing and, when taken together with cash or cash equivalents held by Parent and any related transactions will not exceed the amount set forth on Section 4.05 of the Company on the Closing Date and the other sources of funds available to Parent on the Closing Date, will be sufficient in amount to pay the foregoing amounts in full. The only conditions precedent related to the obligations of the Financing Sources party to the Commitment Letter to fund the full amount of the Financing contemplated by the Commitment Letter are expressly set forth in the Commitment Disclosure Letter.
Appears in 1 contract
Sufficient Funds. (a) Assuming the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunderParent has made adequate arrangements to ensure that, in each case, in all material respects, and assuming satisfaction of the conditions in Article VII (other than the conditions set forth in Sections 7.2(a) and 7.2(b) and those conditions that by their nature can only be satisfied at the Closing, but subject to the satisfaction or waiver thereof), Parent and Merger Sub will have available to them at the Effective Time all funds and commitments necessary Time, the Purchaser shall have available cash sufficient to refinance pay in full the aggregate Consideration for Shares and the aggregate amount payable in respect of the In-The-Money Options and DSUs pursuant to the Arrangement in accordance with the terms of this Agreement, and to make all amounts outstanding other payments required to be made by the Purchaser or the Parent in connection with the transactions contemplated by this Agreement and to pay all related fees and expenses for which the Purchaser or the Parent is responsible under the Company Credit terms of the Agreement. Prior to the execution and delivery of this Agreement, the Company Receivables Financing Agreement and Parent or the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing. Parent Purchaser has delivered to the Company true and complete fully-executed copies of (i) a fully executed debt commitment letter, dated as of the date of this Agreement (including all exhibits thereto in effect on the date hereof) and (ii) the executed fee letter referenced therein, relating to fees with respect to the Financing contemplated by the commitment letter (collectively, the “"Commitment Letter”") dated January 23, 2012 made by a lender (the "Lender"), evidencing the availability of committed credit facilities in favour of the Parent, pursuant to which the Lender has agreed to provide the Parent with debt financing (the "Debt Financing"), for the sole purpose of funding amounts payable by and among Parent the Purchaser and the Financing Sources specified therein (Parent in connection with only fee amounts and other economic terms, and the rates and amounts included in the “flex” provisions, redacted, none of which redacted provisions would adversely affect the conditionality, enforceability, termination or amount of the debt financing contemplated by the commitment letter). Pursuant pursuant to the Commitment Letter, and subject to the terms and conditions thereof, the Financing Sources party thereto have committed to provide Parent with the amounts set forth Arrangement. The commitments described in the Commitment Letter for are not subject to any condition precedent other than the purposes conditions expressly set forth therein (therein. There are no other agreements, side letters or arrangements that would permit the debt financing contemplated in Lender to reduce the Commitment Letter, together with, unless the context otherwise requires, any replacement financing, including any bank financing or debt securities issued in lieu thereof, the “Financing”). As amount of the date Debt Financing or that would otherwise affect the availability of this Agreement, the Debt Financing. The Commitment Letter is in full force and effect and effect, has not been amended, restated, modified, withdrawn, rescinded or terminated, terminated or otherwise amended modified or modified in any respect varied and is a legal, valid and binding obligation of the Purchaser, the Parent and the Lender, as applicable, no amendment or modification to the Commitment Letter is contemplated (other than as set forth in provided that the fee letters with respect to flex rights and/or Parent may (i) amend the Commitment Letter to add additional lenders, lead arrangers, bookrunners, syndication agents and or similar entities who had not executed the Commitment Letter or (ii) otherwise amend the Commitment Letter so long as such amendment would not reasonably be expected to delay or prevent the completion of the Arrangement and the consummation of the transactions contemplated by this Agreement and the terms of the Commitment Letter as so amended are not materially less beneficial to the Parent, with respect to conditionality, than the terms in the Commitment Letter as in effect on the date of this Agreement), and the Commitment Letter, in the form so delivered, constitutes the legal, valid and binding obligation of, and is enforceable against, Parent and, to the knowledge of Parent, each of the other parties thereto, subject, in each case, to the Enforceability Exceptions. Except as set forth in the Commitment Letter and except for any related commitment letters, engagement letters and fee letters related to the permanent financing described in the Commitment Letter, as of the date of this Agreement, there are no contracts, agreements, “side letters” or other arrangements to which Parent or any of its affiliates is a party relating to the Commitment Letter or the Financing.
(b) As of the date of this Agreement, no event has occurred or circumstance exists, including the execution, delivery and performance of this Agreement or the consummation of the transactions contemplated hereby, which, with or without notice, lapse of time or both, constitutes, would or would reasonably be expected to constitute, (x) constitute a default or breach by Parent or, to on the knowledge of Parent, any other party thereto, of any term part of the Commitment Letter. As of Purchaser or the date of this Agreement, no Financing Source party to Parent under the Commitment Letter has notified Parent of its termination or repudiation (y) constitute or intent result in a failure to terminate or repudiate) satisfy any of the commitments under such Commitment Letter or intent not to provide the Financing. Assuming the truth and accuracy of the Company’s representations and warranties condition precedent set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and Commitment Letter assuming satisfaction or waiver of the conditions in Article VII (other than the conditions set forth in Sections 7.2(a) and 7.2(b) and those conditions that by their nature can only be satisfied at the Closing, but subject to the satisfaction or waiver thereof), Parent has no reason to believe that any of the conditions to the funding of the Financing contemplated by the Commitment Letter and contained in the Commitment Letter will fail to be satisfied on the Closing Date or that the full amounts committed pursuant to the Commitment Letter will not be available to be funded on the Closing Date to the extent required, when taken together with cash or cash equivalents held by Parent and the Company on the Closing Date and the other sources of funds available to Parent on the Closing Date, to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing.
(c) Parent acknowledges that its obligation to consummate the Merger as set forth in this Agreement is not contingent on Parent’s ability to obtain any financing, whether pursuant to the Commitment Letter or otherwise.
(d) Parent has fully paid (or caused to be paid) any and all commitment fees or other fees required by the Commitment Letter to be paid on or before the date of this Agreement. Assuming (i) the funding of the full amount of the Financing in accordance with and subject to the satisfaction of the conditions in the Commitment Letter, (ii) the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and (iii) satisfaction of the conditions in Article VII, the aggregate proceeds from the Financing (after netting out applicable fees, expenses, original issue discount and similar premiums and chargers and after giving effect of the maximum amount of flex (including original issue discount flex) provided under the Commitment Letter) constitute all of the financing necessary to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing 6.1 and, when taken together with cash or cash equivalents held by Parent and the Company on the Closing Date and the other sources of funds available to Parent on the Closing Date, will be sufficient in amount to pay the foregoing amounts in full. The only conditions precedent related to the obligations of the Financing Sources party to the Commitment Letter to fund the full amount of the Financing contemplated by the Commitment Letter are expressly set forth in the Commitment Letter.
Appears in 1 contract
Sources: Arrangement Agreement (Semtech Corp)
Sufficient Funds. (a) Assuming the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and assuming satisfaction of the conditions in Article VII (other than the conditions set forth in Sections 7.2(a) and 7.2(b) and those conditions that by their nature can only be satisfied at the Closing, but subject to the satisfaction or waiver thereof), Parent and Merger Sub will The Purchasing Parties have available to them at the Effective Time all funds and commitments necessary to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing. Parent has delivered to the Company Seller Parent true and complete copies of (i) a fully an executed debt commitment letter, dated as letter from Purchaser Guarantor (the “Equity Funding Letter”) to provide equity financing in an aggregate amount of at least $462,800,000 (the date of this Agreement (including all exhibits thereto in effect on the date hereof“Equity Financing”) and (ii) the executed fee letter referenced therein, relating to fees with respect to the Financing contemplated by the debt commitment letter letters from Citigroup Global Markets Inc. (collectively, the “Commitment LetterFinancing Commitments”), by and among Parent and the Financing Sources specified therein pursuant to which Citigroup Global Markets Inc. has agreed to provide or cause to be provided at least $505,000,000 at Closing (with only fee amounts and other economic terms, and the rates and amounts included in the “flex” provisionsDebt Financing”, redactedand, none of which redacted provisions would adversely affect the conditionality, enforceability, termination or amount of the debt financing contemplated by the commitment letter). Pursuant to the Commitment Letter, and subject to the terms and conditions thereof, the Financing Sources party thereto have committed to provide Parent together with the amounts set forth in the Commitment Letter for the purposes set forth therein (the debt financing contemplated in the Commitment Letter, together with, unless the context otherwise requires, any replacement financing, including any bank financing or debt securities issued in lieu thereofEquity Financing, the “Financing”). As The Purchasing Parties have disclosed and made available to the Selling Parties all other agreements, arrangements or understandings (whether oral or written) related to the Financing, provided that the Purchasing Parties may redact in such documents the fee amounts payable to their financing sources under the Financing Commitments. Such fee amounts are customary for debt financings similar to the Debt Financing. Except as otherwise permitted by this Agreement, none of the Equity Funding Letter or Financing Commitments has been or will be amended or modified, and the respective commitments contained in the Equity Funding Letter and the Financing Commitments have not been withdrawn or rescinded in any respect as of the date of this Agreement. Except to the extent amended in accordance with its terms, the Commitment Equity Funding Letter is in full force and effect and has not been withdrawn, rescinded or terminated, or otherwise amended or modified in any respect and no amendment or modification is contemplated (other than as set forth in the fee letters with respect to flex rights and/or to add additional lenders, arrangers, bookrunners, syndication agents and similar entities who had not executed the Commitment Letter as of the date of this Agreement), and the Commitment Letter, in the form so delivered, constitutes the a legal, valid and binding obligation of, of the Purchasing Parties that are party thereto and the other party thereto. Each of the Financing Commitments is in full force and effect and is enforceable againsta legal, Parent valid and binding obligation of the Purchasing Parties and, to the knowledge of Parentthe Purchasing Parties, each of the other parties thereto, subject, in each case, to the Enforceability Exceptions. Except as set forth in the Commitment Letter and except for any related commitment letters, engagement letters and fee letters related to the permanent financing described in the Commitment Letter, as of the date of this Agreement, there are no contracts, agreements, “side letters” or other arrangements to which Parent or any of its affiliates is a party relating to the Commitment Letter or the Financing.
(b) As of the date of this Agreement, no event has occurred which, with or without notice, lapse of time or both, constitutes, or would reasonably be expected to constitute, constitute a default or breach by Parent or, on the part of the Purchasing Parties or their respective Affiliates under any term or condition of the Equity Funding Letter or the Financing Commitments. There are no conditions precedent relating to the knowledge of Parent, any other party thereto, of any term funding of the Commitment Letterfull amount of the Financing, other than as set forth in the Equity Funding Letter and the Financing Commitments. As of the date of this Agreement, no Financing Source party to the Commitment Letter has notified Parent of its termination or repudiation (or intent to terminate or repudiate) any of the commitments under such Commitment Letter or intent not to provide the Financing. Assuming the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and assuming satisfaction of the conditions in Article VII (other than the conditions set forth in Sections 7.2(a) and 7.2(b) and those conditions that by their nature can only be satisfied at the Closing, but subject to the satisfaction or waiver thereof), Parent has Purchasing Parties have no reason to believe that any of the conditions relating to the funding of the full amount of the Financing contemplated by the Commitment Letter and contained in the Commitment Letter will fail to not be satisfied on the Closing Date or that the full amounts committed pursuant prior to the Commitment Letter will not be available to be funded on the Closing Date to the extent required, when taken together with cash or cash equivalents held by Parent and the Company on the Closing Date and the other sources of funds available to Parent on the Closing Date, to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing.
(c) Parent acknowledges that its obligation to consummate the Merger as set forth in this Agreement is not contingent on Parent’s ability to obtain any financing, whether pursuant to the Commitment Letter or otherwise.
(d) Parent has . The Purchasing Parties have fully paid (or caused to be paid) any and all commitment fees or other fees required by the Commitment Letter Financing Commitments to be paid on or before prior to the date of this AgreementAgreement and shall in the future pay any such fees as they become due. Assuming (i) the funding of the full amount of the Financing The Financing, when funded in accordance with the Equity Funding Letter and subject to the satisfaction of the conditions in the Commitment Letter, (ii) the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and (iii) satisfaction of the conditions in Article VII, the aggregate proceeds from the Financing (after netting out applicable feesCommitments, expenses, original issue discount and similar premiums and chargers and after giving effect of will provide Purchaser with funds sufficient to consummate the maximum amount of flex (including original issue discount flex) provided under the Commitment Letter) constitute all of the financing necessary to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement Acquisition and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 other transactions contemplated by this Agreement and to pay the all related fees and expenses. The fees and expenses relating to of the Merger and Purchasing Parties in connection with the Acquisition, the Financing and, when taken together with cash or cash equivalents held by Parent and any related transactions will not exceed the amount set forth on Section 4.05 of the Company on the Closing Date and the other sources of funds available to Parent on the Closing Date, will be sufficient in amount to pay the foregoing amounts in full. The only conditions precedent related to the obligations of the Financing Sources party to the Commitment Letter to fund the full amount of the Financing contemplated by the Commitment Letter are expressly set forth in the Commitment Disclosure Letter.
Appears in 1 contract
Sufficient Funds. (a) Assuming the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and assuming satisfaction of the conditions in Article VII (other than the conditions set forth in Sections 7.2(a) and 7.2(b) and those conditions that by their nature can only be satisfied at the Closing, but subject to the satisfaction or waiver thereof), Parent and Merger Sub will have available to them at the Effective Time all funds and commitments necessary to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing. Parent has delivered to the Company true complete, correct and complete fully executed copies of (i) a fully executed debt commitment letter, dated as of the date of this Agreement (including all exhibits thereto in effect on the date hereof) letter and (ii) the executed a related fee letter referenced therein, relating (which in the case of such fee letter may be subject to fees redaction in a customary manner with respect to the Financing contemplated by the commitment letter fee amounts, including fee amounts in any flex terms) (collectively, the “Commitment Letter”), by and among Parent and ) from the Financing Sources specified therein (with only fee amounts pursuant to which the Financing Sources have committed to provide to Parent and other economic termsMerger Sub, and upon the rates and amounts included in the “flex” provisions, redacted, none of which redacted provisions would adversely affect the conditionality, enforceability, termination or amount of the debt financing contemplated by the commitment letter). Pursuant to the Commitment Letter, terms and subject to the terms and conditions thereofset forth therein, the Financing Sources party thereto have committed to provide Parent with debt financing in the amounts set forth in therein for purposes of financing the Commitment Letter for the purposes set forth therein transactions contemplated by this Agreement, and paying related fees and expenses (the such debt financing contemplated in the Commitment Letter, together with, unless the context otherwise requires, any replacement financing, including any bank financing or debt securities issued in lieu thereof, the “Initial Financing”). As of the date of this Agreementhereof, the Commitment Letter is in full force and effect and has not been withdrawn, rescinded or terminated, or otherwise amended or modified in any respect and no amendment or modification is contemplated (other than as set forth in the fee letters with respect to flex rights and/or to add additional lenders, arrangers, bookrunners, syndication agents and similar entities who had not executed the Commitment Letter as of the date of this Agreement), and the Commitment Letter, in the form so delivered, constitutes the legal, a valid and binding obligation of, and is enforceable against, of Parent and, to the knowledge of Parent, each of the other parties thereto, in each case subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, regardless of whether enforcement is sought in each casea proceeding at law or in equity. As of the date hereof, the Commitment Letter has not been amended or modified in any material respect, and, to the Enforceability Exceptions. Except as set forth knowledge of Parent, the commitments contained in the Commitment Letter and except for have not been withdrawn, rescinded or otherwise modified in any related commitment letters, engagement letters and fee letters related material respect. Subject to the permanent financing described in terms and conditions of the Commitment Letter, the aggregate proceeds of the Initial Financing, together with Parent’s unrestricted cash on hand, are in an aggregate amount sufficient to pay all obligations of Parent and Merger Sub hereunder, including (a) the amounts payable pursuant to Section 1.4(e), and (b) all of the out-of-pocket costs of Parent, Merger Sub and the Surviving Company arising from the consummation of the transactions contemplated by this Agreement and there will be no restriction on the use of such cash for such purposes. The Commitment Letter delivered to the Company contains all of the conditions precedent to the obligations of the parties thereunder to fund the full amount of the Initial Financing contemplated by the Commitment Letter. Other than the Commitment Letter itself (including the redacted fee letter provided to the Company as of the date of this Agreementhereof) and other than certain customary engagement letters and confidentiality agreements with respect to the Initial Financing, there are no contractsother fee letters, engagement letters, side letters, agreements, “side letters” contracts or other arrangements to which Parent or any of its affiliates is a party relating to the Commitment Letter or the Financing.
(b) Letter. As of the date of this Agreementhereof, assuming the condition set forth in Section 5.3(a) is satisfied, no event has occurred which, with or without notice, lapse of time or both, constitutes, would constitute or would reasonably be expected to constitute, constitute a default or breach by on the part of Parent orunder any material term of, to the knowledge of Parent, any other party thereto, or a failure of any term condition or inability to satisfy any conditions precedent to funding the full amount of the Initial Financing under, the Commitment LetterLetter or otherwise result in any portion of the Initial Financing to be unavailable or materially delayed. As of the date of this Agreement, no Financing Source party to the Commitment Letter has notified Parent of its termination or repudiation (or intent to terminate or repudiate) any of the commitments under such Commitment Letter or intent not to provide the Financing. Assuming the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respectshereof, and assuming satisfaction of the conditions in Article VII (other than that the conditions set forth in Sections 7.2(a) Section 5.1 and 7.2(b) and those conditions that by their nature can only be satisfied at the Closing, but subject to the satisfaction or waiver thereof)Section 5.3 are satisfied, Parent has no does not have reason to believe that it will be unable to satisfy on a timely basis any of the conditions condition to the funding of the Initial Financing contemplated by under the Commitment Letter and contained in the Commitment Letter will fail required to be satisfied on by it at or prior to the Closing Date Closing, or that any portion of the full amounts committed pursuant to the Commitment Letter Initial Financing contemplated thereby will not be available to be funded on the Closing Date to the extent required, when taken together with cash or cash equivalents held by Parent and the Company on the Closing Date and the other sources of funds available unavailable to Parent on at the Closing Date, to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing.
(c) Parent acknowledges that its obligation to consummate the Merger as set forth in this Agreement is not contingent on Parent’s ability to obtain any financing, whether pursuant to the Commitment Letter or otherwise.
(d) Closing. Parent has fully paid (or caused to be paid) any and all commitment fees or other fees required by in connection with the Commitment Letter to be paid that are due and payable on or before the date of this Agreement. Assuming Each of Parent and Merger Sub affirms that it is not a condition to the Closing or to any of its other obligations under this Agreement (iincluding consummating the Merger) that Parent and/or Merger Sub (or the funding Surviving Company) obtain financing for or related to any of the full amount of the Financing in accordance with and subject to the satisfaction of the conditions in the Commitment Letter, (ii) the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and (iii) satisfaction of the conditions in Article VII, the aggregate proceeds from the Financing (after netting out applicable fees, expenses, original issue discount and similar premiums and chargers and after giving effect of the maximum amount of flex (including original issue discount flex) provided under the Commitment Letter) constitute all of the financing necessary to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing and, when taken together with cash or cash equivalents held by Parent and the Company on the Closing Date and the other sources of funds available to Parent on the Closing Date, will be sufficient in amount to pay the foregoing amounts in full. The only conditions precedent related to the obligations of the Financing Sources party to the Commitment Letter to fund the full amount of the Financing transactions contemplated by the Commitment Letter are expressly set forth in the Commitment Letterthis Agreement.
Appears in 1 contract
Sufficient Funds. (a) Assuming the truth and accuracy of the Company’s representations and warranties set Exhibit B sets forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and assuming satisfaction of the conditions in Article VII (other than the conditions set forth in Sections 7.2(a) and 7.2(b) and those conditions that by their nature can only be satisfied at the Closing, but subject to the satisfaction or waiver thereof), Parent and Merger Sub will have available to them at the Effective Time all funds and commitments necessary to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing. Parent has delivered to the Company true and complete copies of executed commitment letters from Credit Suisse Securities (iUSA) a fully executed debt commitment letterLLC, dated as of the date of this Agreement (including all exhibits thereto in effect on the date hereof) Credit Suisse AG, UBS Securities LLC, UBS Loan Finance LLC, Barclays Capital and (ii) the executed fee letter referenced therein▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, relating to fees with respect to the Financing contemplated by the commitment letter Inc. (collectively, the “Commitment LetterFinancing Commitments”), by and among Parent and the Financing Sources specified therein (with only fee amounts and other economic terms, and the rates and amounts included in the “flex” provisions, redacted, none of which redacted provisions would adversely affect the conditionality, enforceability, termination or amount of the debt financing contemplated by the commitment letter). Pursuant pursuant to the Commitment Letterwhich, and subject to the terms and conditions thereofof which, the Financing Sources party lender parties thereto have committed to provide Parent with lend the amounts set forth in the Commitment Letter therein to Buyer for the purposes set forth therein purpose of funding the transactions contemplated by this Agreement (the debt financing contemplated in the Commitment Letter, together with, unless the context otherwise requires, any replacement financing, including any bank financing or debt securities issued in lieu thereof, the “Financing”). As of the date of this Agreement, the Commitment Letter is in full force and effect and has not been withdrawn, rescinded or terminated, or otherwise amended or modified in any respect and no amendment or modification is contemplated (other than as set forth in the fee letters with respect to flex rights and/or to add additional lenders, arrangers, bookrunners, syndication agents and similar entities who had not executed the Commitment Letter as of the date of this Agreement), and the Commitment Letter, in the form so delivered, constitutes the legal, valid and binding obligation of, and is enforceable against, Parent and, to the knowledge of Parent, each of the other parties thereto, subject, in each case, to the Enforceability Exceptions. Except as set forth in the Commitment Letter and except for any related commitment letters, engagement letters and fee letters related to the permanent financing described in the Commitment Letter, as of the date of this Agreement, there are no contracts, agreements, “side letters” or other arrangements to which Parent or any of its affiliates is a party relating to the Commitment Letter or the Financing.
(b) As of the date of this Agreement, the Financing Commitments are in full force and effect and have not been withdrawn or terminated, or otherwise amended or modified in any respect. Each of the Financing Commitments, in the form so delivered, is a legal, valid and binding obligation of Buyer and, to the knowledge of Buyer, the other parties thereto. There are no other agreements, side letters or arrangements relating to the Financing Commitments that could affect the availability of the Financing. No event has occurred which, with or without notice, lapse of time or both, constitutes, or would reasonably be expected to constitute, constitute a default or breach by Parent or, to on the knowledge part of Parent, any other party thereto, of Buyer under any term or condition of the Commitment Letter. As of Financing Commitments, and, assuming the date of this Agreement, no Financing Source party to the Commitment Letter has notified Parent of its termination or repudiation (or intent to terminate or repudiate) any of the commitments under such Commitment Letter or intent not to provide the Financing. Assuming the truth and accuracy of the Company’s representations and warranties of the Seller set forth in Article III herein and compliance by the Company with its obligations hereunder, in each case, in all material respectsrespects by the Seller with Sections 6.1 and 6.11, and assuming satisfaction of the conditions in Article VII (other than the conditions set forth in Sections 7.2(a) and 7.2(b) and those conditions that by their nature can only be satisfied at the Closing, but subject to the satisfaction or waiver thereof), Parent Buyer has no reason to believe that it will be unable to satisfy, on a timely basis, any term or condition of the conditions closing to the funding of the Financing contemplated be satisfied by the Commitment Letter and it, contained in the Commitment Letter will fail to be satisfied on the Closing Date or that the full amounts committed pursuant to the Commitment Letter will not be available to be funded on the Closing Date to the extent required, when taken together with cash or cash equivalents held by Parent and the Company on the Closing Date and the other sources of funds available to Parent on the Closing Date, to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing.
(c) Parent acknowledges that its obligation to consummate the Merger as set forth in this Agreement is not contingent on Parent’s ability to obtain any financing, whether pursuant to the Commitment Letter or otherwise.
(d) Parent Commitments. Buyer has fully paid (or caused to be paid) any and all commitment fees or other fees required by the Commitment Letter Financing Commitments to be paid on or before the date of this Agreement. Assuming (i) the funding of the full amount of the Financing in accordance with and subject to the satisfaction of the conditions in the Commitment Letter, (ii) the truth and accuracy of the Company’s representations and warranties of the Seller set forth in Article III herein and compliance by the Company with its obligations hereunder, in each case, in all material respects, respects by the Seller with Sections 6.1 and (iii) satisfaction of the conditions in Article VII6.11, the aggregate proceeds from the Financing (after netting out applicable feesFinancing, expensestogether will cash and borrowings under existing credit facilities, original issue discount and similar premiums and chargers and after giving effect are sufficient for satisfaction of all of Buyer’s obligations under this Agreement in an amount sufficient to consummate the transactions contemplated by this Agreement, including the payment of the maximum amount Net Purchase Price and the payment of flex all associated costs and expenses (including original issue discount flex) provided under any required refinancing of indebtedness of Buyer, the Commitment Letter) constitute “Required Amount”). The Financing Commitments contain all of the financing necessary to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing and, when taken together with cash or cash equivalents held by Parent and the Company on the Closing Date and the other sources of funds available to Parent on the Closing Date, will be sufficient in amount to pay the foregoing amounts in full. The only conditions precedent related to the obligations of the parties thereunder to make the Financing Sources party available to Buyer on the Commitment Letter to fund terms set forth therein. As of the full amount date of this Agreement, none of the Financing contemplated by Commitments has been withdrawn and Buyer does not know of any facts or circumstances that may be expected to result in any of the Commitment Letter are expressly conditions set forth in the Commitment LetterFinancing Commitments not being satisfied. To the extent this Agreement must be in a form acceptable to any lender providing Financing, such lender or lenders have approved this Agreement.
(c) Buyer’s obligations under this Agreement are not subject to any conditions regarding Buyer’s, its Affiliates’, or any other Person’s ability to obtain financing for the consummation of the transactions contemplated hereby.
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Sufficient Funds. Parent will have and Parent will make available to Purchaser at the Effective Time, sufficient funds to consummate the Transactions (a) Assuming including sufficient funds necessary to acquire all shares of the truth Company Common Stock pursuant to the Offer, the Top-Up Option and accuracy the Merger, as the case may be, to perform Parent’s and Purchaser’s other obligations under this Agreement, to repay all of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and assuming satisfaction of the conditions in Article VII (other than the conditions set forth in Sections 7.2(a) and 7.2(b) and those conditions that by their nature can only be satisfied at the Closing, but subject to the satisfaction or waiver thereof), Parent and Merger Sub will have available to them at the Effective Time all funds and commitments necessary to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 indebtedness and to pay the fees all fees, expenses and expenses relating other amounts related to the Merger and Transactions payable by either of them). Prior to the Financing. date of this Agreement, Parent has delivered to the Company true complete, correct and complete executed copies of all financing agreements and/or commitment letters (ithe “Financing Commitments”) a fully executed debt commitment letter, dated as of the date of this Agreement (including all exhibits thereto in effect on the date hereof) and (ii) the executed fee letter referenced therein, relating to fees with respect to the Financing contemplated by the commitment letter (collectively, the “Commitment Letter”), by and among Parent and the Financing Sources specified therein (with only fee amounts and other economic terms, and the rates and amounts included in the “flex” provisions, redacted, none of which redacted provisions would adversely affect the conditionality, enforceability, termination or amount financing of the debt financing contemplated by the commitment letter). Pursuant to the Commitment Letter, and subject to the terms and conditions thereof, the Financing Sources party thereto have committed to provide Parent with the amounts set forth in the Commitment Letter for the purposes set forth therein Transactions (the debt financing contemplated in the Commitment Letter, together with, unless the context otherwise requires, any replacement financing, including any bank financing or debt securities issued in lieu thereof, the “Financing”), including all exhibits, schedules or amendments thereto. As of the date of this Agreementhereof, the Commitment Letter Financing Commitments have not been amended or modified in any respect, no such amendment or modification is in full force contemplated and effect and has the commitments contained therein have not been withdrawn, rescinded or terminated, or otherwise amended or modified in any respect respect. The Financing Commitments are in full force and effect, are legal, valid and binding obligations of Parent and, to Parent’s Knowledge, the other parties thereto, and there are no amendment conditions precedent or modification is contemplated (other contingences related to the funding of the full amount of the Financing, other than as set forth in or expressly contemplated by the fee letters with respect to flex rights and/or to add additional lenders, arrangers, bookrunners, syndication agents and similar entities who had not executed the Commitment Letter as of the date of this Agreement), and the Commitment Letter, in the form so delivered, constitutes the legal, valid and binding obligation of, and is enforceable against, Parent and, to the knowledge of Parent, each of the other parties thereto, subject, in each case, to the Enforceability ExceptionsFinancing Commitments. Except as set forth in the Commitment Letter and except for any related commitment letters, engagement letters and fee letters related to the permanent financing described in the Commitment Letter, as of the date of this Agreement, there are no contracts, agreements, “side letters” or other arrangements to which Parent or any of its affiliates is a party relating to the Commitment Letter or the Financing.
(b) As of the date of this Agreement, no No event has occurred which, with or without notice, lapse of time or both, constitutes, or would reasonably be expected to constitute, constitute a default or breach on the part of Parent or Purchaser under the Financing Commitments. The aggregate proceeds contemplated by the Financing Commitments will be sufficient for Parent orand Purchaser to consummate the Transactions (including sufficient funds necessary to acquire all shares of the Company Common Stock pursuant to the Offer, the Top-Up Option and the Merger, as the case may be, to pay all amounts due under the knowledge of Company Credit Agreement, to perform Parent, any ’s and Purchaser’s other party thereto, of any term of the Commitment Letter. As of the date of obligations under this Agreement, no Financing Source party and to pay all fees, expenses and other amounts related to the Commitment Letter has notified Parent Transactions or the Financing payable by either of its termination or repudiation (or intent to terminate or repudiate) any of the commitments under such Commitment Letter or intent not to provide the Financingthem). Assuming the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in The Financing Commitments contain all material respects, and assuming satisfaction of the conditions in Article VII (other than the conditions set forth in Sections 7.2(a) and 7.2(b) and those conditions that by their nature can only be satisfied at the Closing, but subject precedent to the satisfaction obligations of the parties thereunder to make Financing available to Parent or waiver thereof)Purchaser on the terms therein, and Parent has and Purchaser have no reason to believe that any of the conditions precedent to the funding Financing will not be satisfied in connection with the consummation of the Financing contemplated by the Commitment Letter and contained in the Commitment Letter will fail to be satisfied on the Closing Date Transactions or that the full amounts committed pursuant to the Commitment Letter Financing will not be available to be funded on the Closing Date to the extent required, when taken together with cash or cash equivalents held by Parent and the Company on the Closing Date and the other sources of funds available to Parent Purchaser on the Closing Date, to refinance in full all amounts outstanding . Parent and Purchaser have obtained the consent of the lenders under the Company Credit AgreementFinancing Commitments to publicly file the Financing Commitments with the SEC if requested by the SEC or required by Law. Parent and Purchaser shall, and shall cause CJAC to, comply with and accept any “flex” terms contained in any of the Company Receivables Financing Agreement and the Company Indentures, Commitments as may be necessary to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and complete the Financing.
(c) Parent acknowledges that its obligation to consummate the Merger as set forth in this Agreement is not contingent on Parent’s ability to obtain any financing, whether pursuant to the Commitment Letter or otherwise.
(d) Parent has fully paid (or caused to be paid) any and all commitment fees or other fees required by the Commitment Letter to be paid on or before the date of this Agreement. Assuming (i) the funding of the full amount of the Financing in accordance with and subject to the satisfaction of the conditions in the Commitment Letter, (ii) the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and (iii) satisfaction of the conditions in Article VII, the aggregate proceeds from the Financing (after netting out applicable fees, expenses, original issue discount and similar premiums and chargers and after giving effect of the maximum amount of flex (including original issue discount flex) provided under the Commitment Letter) constitute all of the financing necessary to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing and, when taken together with cash or cash equivalents held by Parent and the Company on the Closing Date and the other sources of funds available to Parent on the Closing Date, will be sufficient in amount to pay the foregoing amounts in full. The only conditions precedent related to the obligations of the Financing Sources party to the Commitment Letter to fund the full amount of the Financing contemplated by the Commitment Letter are expressly set forth in the Commitment Letter.
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Sufficient Funds. You must have sufficient available funds in your Account to cover the amount of any transaction that would be charged to your Account. Subject to limitations set out in this Agreement, you can request up to the amount of available funds or available credit in your Account. We may hold (aor “freeze”) Assuming funds at any time after you have initiated a Personal Service for any reason, including as a means of reducing risks that there will be insufficient funds for completing the truth Personal Service. If we do hold funds, we may treat the held funds as not available for other purposes, and accuracy reject other transactions (for example, checks or other transfer instructions) in any order we choose. We may allow overdrafts/overlimits or negative balances, but we also may discontinue the practice at any time with or without prior notice to you. We may prevent or reverse any payments or other Personal Service in any order that we choose as a means of the Company’s representations and warranties preventing or recovering any overdrafts or other exposures. If you do not have sufficient or available funds or credit, you may be charged an overdraft or other fee (such as fees for returned checks or other electronic items), as set forth herein and in Article III the Consumer Accounts Schedule of Fees and compliance by Charges. Without limiting the Company with its obligations hereunderforegoing, in each case, in all material respects, and assuming satisfaction if we allow your overdraft line of the conditions in Article VII credit (other than the conditions set forth in Sections 7.2(aif available) and 7.2(b) and those conditions that by their nature can only to be satisfied at the Closing, but subject to the satisfaction or waiver thereofoverdrawn (meaning your advance exceeds your available overdraft line of credit amount), Parent you must immediately make a deposit to cover the excess overdraft. If we sue you to collect any overdraft, you agree that we're entitled to collect all costs and Merger Sub will have available to them at expenses of suit from you (including the Effective Time all funds and commitments necessary to refinance in full all amounts outstanding under the Company Credit Agreementreasonable cost of an attorney), the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and applicable law. If we allow an advance from your overdraft line of credit, you're responsible for any interest we charge in accordance with the terms of the overdraft line of credit agreement. You agree that we are not liable for any damages or expenses you incur due to pay any delay or failure of the fees and expenses relating to the Merger and the Financing. Parent has delivered to the Company true and complete copies of (i) a fully executed debt commitment letter, dated as of courier (or the date of this Agreement (including all exhibits thereto US Postal Service) in effect on the date hereof) delivering any check; and (ii) the executed fee letter referenced therein, relating to fees with respect to the Financing contemplated by the commitment letter (collectively, the “Commitment Letter”), by and among Parent and the Financing Sources specified therein (with only fee amounts and other economic terms, and the rates and amounts included any Payee or third party in the “flex” provisions, redacted, none of which redacted provisions would adversely affect the conditionality, enforceability, termination crediting or amount of the debt financing contemplated by the commitment letter). Pursuant to the Commitment Letter, and subject to the terms and conditions thereof, the Financing Sources party thereto have committed to provide Parent with the amounts set forth in the Commitment Letter for the purposes set forth therein (the debt financing contemplated in the Commitment Letter, together with, unless the context otherwise requires, any replacement financing, including any bank financing processing a payment or debt securities issued in lieu thereof, the “Financing”). As of the date of this Agreement, the Commitment Letter is in full force and effect and has not been withdrawn, rescinded or terminated, or otherwise amended or modified in any respect and no amendment or modification is contemplated (other than as set forth in the fee letters with respect to flex rights and/or to add additional lenders, arrangers, bookrunners, syndication agents and similar entities who had not executed the Commitment Letter as of the date of this Agreement), and the Commitment Letter, in the form so delivered, constitutes the legal, valid and binding obligation of, and is enforceable against, Parent and, to the knowledge of Parent, each of the other parties thereto, subject, in each case, to the Enforceability Exceptions. Except as set forth in the Commitment Letter and except for any related commitment letters, engagement letters and fee letters related to the permanent financing described in the Commitment Letter, as of the date of this Agreement, there are no contracts, agreements, “side letters” or other arrangements to which Parent or any of its affiliates is a party relating to the Commitment Letter or the Financingwithdrawal.
(b) As of the date of this Agreement, no event has occurred which, with or without notice, lapse of time or both, constitutes, or would reasonably be expected to constitute, a default or breach by Parent or, to the knowledge of Parent, any other party thereto, of any term of the Commitment Letter. As of the date of this Agreement, no Financing Source party to the Commitment Letter has notified Parent of its termination or repudiation (or intent to terminate or repudiate) any of the commitments under such Commitment Letter or intent not to provide the Financing. Assuming the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and assuming satisfaction of the conditions in Article VII (other than the conditions set forth in Sections 7.2(a) and 7.2(b) and those conditions that by their nature can only be satisfied at the Closing, but subject to the satisfaction or waiver thereof), Parent has no reason to believe that any of the conditions to the funding of the Financing contemplated by the Commitment Letter and contained in the Commitment Letter will fail to be satisfied on the Closing Date or that the full amounts committed pursuant to the Commitment Letter will not be available to be funded on the Closing Date to the extent required, when taken together with cash or cash equivalents held by Parent and the Company on the Closing Date and the other sources of funds available to Parent on the Closing Date, to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing.
(c) Parent acknowledges that its obligation to consummate the Merger as set forth in this Agreement is not contingent on Parent’s ability to obtain any financing, whether pursuant to the Commitment Letter or otherwise.
(d) Parent has fully paid (or caused to be paid) any and all commitment fees or other fees required by the Commitment Letter to be paid on or before the date of this Agreement. Assuming (i) the funding of the full amount of the Financing in accordance with and subject to the satisfaction of the conditions in the Commitment Letter, (ii) the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and (iii) satisfaction of the conditions in Article VII, the aggregate proceeds from the Financing (after netting out applicable fees, expenses, original issue discount and similar premiums and chargers and after giving effect of the maximum amount of flex (including original issue discount flex) provided under the Commitment Letter) constitute all of the financing necessary to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing and, when taken together with cash or cash equivalents held by Parent and the Company on the Closing Date and the other sources of funds available to Parent on the Closing Date, will be sufficient in amount to pay the foregoing amounts in full. The only conditions precedent related to the obligations of the Financing Sources party to the Commitment Letter to fund the full amount of the Financing contemplated by the Commitment Letter are expressly set forth in the Commitment Letter.
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Sources: Online Banking Service Agreement
Sufficient Funds. (a) Assuming the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and assuming satisfaction of the conditions in Article VII (other than the conditions set forth in Sections 7.2(a) and 7.2(b) and those conditions that by their nature can only be satisfied at the Closing, but subject to the satisfaction or waiver thereof), Parent and Merger Sub will have available to them at the Effective Time all funds and commitments necessary to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing. Parent has delivered to the Company a true and complete copies copy of (i) a the fully executed debt commitment letter, dated as of the date of this Agreement (including all exhibits thereto in effect on the date hereof) and (ii) the executed fee letter referenced therein, relating to fees with respect to the Financing contemplated by the commitment letter dated May 6, 2018 (collectively, the “Equity Commitment Letter”), by and among between Parent and the Financing Sources specified therein other party thereto (with only fee amounts and other economic terms, and the rates and amounts included in the “flex” provisionsEquity Investor”) pursuant to which the Equity Investor has committed, redacted, none of which redacted provisions would adversely affect the conditionality, enforceability, termination or amount of the debt financing contemplated by the commitment letter). Pursuant to the Commitment Letter, and subject only to the terms and conditions thereof, the Financing Sources party thereto have committed to provide invest in Parent with the amounts set forth in therein on the Commitment Letter for the purposes set forth therein Closing Date (the debt financing contemplated “Equity Financing”).
(b) Assuming the Equity Financing is funded in accordance with the Equity Commitment Letter, together with, unless the context otherwise requires, any replacement financing, including any bank financing or debt securities issued in lieu thereof, the “Financing”). As accuracy of the date representations and warranties set forth in this Agreement and the performance in all material respects by the Company and the Partnership of their obligations under this Agreement, at the Closing Parent will have sufficient cash on hand to consummate the transactions contemplated by this Agreement and satisfy all of its obligations under this Agreement, including the payment of the Merger Consideration, any fees and expenses of or payable by Parent, Merger Sub I, Merger Sub II or the Surviving Company, any payments in respect of equity compensation obligations required to be made in connection with the Mergers, and any repayment or refinancing of any outstanding Indebtedness of Parent, the Company, and their respective Subsidiaries required in connection therewith.
(c) The Equity Commitment Letter is in full force and effect and has not been withdrawn, rescinded (and will not be prior to the Closing or terminated, or otherwise amended or modified in any respect and no amendment or modification is contemplated (other than as set forth in the fee letters with respect to flex rights and/or to add additional lenders, arrangers, bookrunners, syndication agents and similar entities who had not executed the Commitment Letter as of the date valid termination of this Agreement)) withdrawn, and the terminated or rescinded or otherwise amended, supplemented or modified (or is contemplated to be amended, supplemented or modified) in any respect. The Equity Commitment Letter, in the form so delivereddelivered to the Company, constitutes the legal, valid and binding obligation of, and is enforceable against, Parent and, to of all the knowledge of Parent, each of the other parties thereto, subject, in each case, to the Enforceability Exceptions. Except as set forth in the Commitment Letter and except for any related commitment letters, engagement letters and fee letters related to the permanent financing described in the Commitment Letter, as of the date of this Agreement, there are no contracts, agreements, “side letters” or other arrangements to which Parent or any of its affiliates is a party relating to the Commitment Letter or the Financing.
(b) As of the date of this Agreement, no event has occurred which, with or without notice, lapse of time or both, constitutes, or would reasonably be expected to constitute, a default or breach by Parent or, to the knowledge of Parent, any other party thereto, of any term of the Commitment Letter. As of the date of this Agreement, no Financing Source party to the Commitment Letter has notified Parent of its termination or repudiation (or intent to terminate or repudiate) any of the commitments under such Commitment Letter or intent not to provide the Financing. Assuming the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and assuming satisfaction of the conditions in Article VII (other than the conditions set forth in Sections 7.2(a) and 7.2(b) and those conditions that by their nature can only be satisfied at the Closing, but subject to the satisfaction or waiver thereof), Parent has no reason to believe that any of the conditions to the funding of the Financing contemplated by the Commitment Letter and contained in the Commitment Letter will fail to be satisfied on the Closing Date or that the full amounts committed pursuant to the Commitment Letter will not be available to be funded on the Closing Date to the extent required, when taken together with cash or cash equivalents held by enforceable against Parent and the Company on the Closing Date and the other sources of funds available to Parent on the Closing Date, to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing.
(c) Parent acknowledges that its obligation to consummate the Merger as set forth in this Agreement is not contingent on Parent’s ability to obtain any financing, whether pursuant to the Commitment Letter or otherwise.
(d) Parent has fully paid (or caused to be paid) any and all commitment fees or other fees required by the Commitment Letter to be paid on or before the date of this Agreement. Assuming (i) the funding of the full amount of the Financing Equity Investor in accordance with and subject to the satisfaction of the conditions in the Commitment Letterits terms and conditions, (ii) the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance except as enforceability may be limited by the Company with its obligations hereunder, in each case, in all material respects, Bankruptcy and (iii) satisfaction of the conditions in Article VII, the aggregate proceeds from the Financing (after netting out applicable fees, expenses, original issue discount and similar premiums and chargers and after giving effect of the maximum amount of flex (including original issue discount flex) provided under the Commitment Letter) constitute all of the financing necessary to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing and, when taken together with cash or cash equivalents held by Parent and the Company on the Closing Date and the other sources of funds available to Parent on the Closing Date, will be sufficient in amount to pay the foregoing amounts in full. The only conditions precedent related to the obligations of the Financing Sources party to the Commitment Letter to fund the full amount of the Financing contemplated by the Commitment Letter are expressly set forth in the Commitment Letter.Equity
Appears in 1 contract
Sufficient Funds. (a) Assuming The Purchaser Party’s obligations hereunder are not subject to any conditions regarding Parent’s, the truth Purchaser’s or any other Person’s ability to obtain financing for the consummation of this Agreement and accuracy the other transactions contemplated by this Agreement.
(b) The financing for the purpose of paying the Company’s representations and warranties Purchase Price, including all amounts set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and assuming satisfaction of the conditions in Article VII (other than the conditions set forth in Sections 7.2(aSection 3.3(a) and 7.2(b) and those conditions that by their nature can only be satisfied at the Closing, but subject to the satisfaction or waiver thereof), Parent and Merger Sub will have available to them at the Effective Time all funds and commitments necessary to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the Purchaser’s fees and expenses relating to the Merger and Acquisition, will consist of debt and/or equity financing to be provided to the Purchaser Parties, which may consist of proceeds from a loan and/or the sale of debt and/or equity securities (collectively, the “Financing”). Parent The Purchaser has delivered to the Company Seller true and complete copies of (i) a that certain fully executed debt commitment letterletter and an executed fee letter (which may be redacted to omit fee amounts, pricing caps and market “flex” provisions contained therein to the extent required by the terms of such debt commitment letters (none of which would reasonably be expected to materially and adversely affect or delay the availability of the Financing)), each dated as of the date of this Agreement hereof, from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc. (including all exhibits thereto in effect on collectively with its assignees as permitted by the date hereof) and (ii) Commitment Letter, the executed fee letter referenced therein“Financing Sources”), relating pursuant to fees with respect which the Financing Sources have agreed, subject to the Financing contemplated by terms and conditions thereof, to lend the commitment letter amounts set forth therein for the purposes of funding the Estimated Purchase Price at Closing (collectively, the “Commitment Letter”), by and among Parent and the Financing Sources specified therein .
(with only fee amounts and other economic terms, and the rates and amounts included in the “flex” provisions, redacted, none of which redacted provisions would adversely affect the conditionality, enforceability, termination or amount of the debt financing contemplated by the commitment letter). Pursuant to the Commitment Letter, and subject to the terms and conditions thereof, the Financing Sources party thereto have committed to provide Parent with the amounts set forth in the Commitment Letter for the purposes set forth therein (the debt financing contemplated in the Commitment Letter, together with, unless the context otherwise requires, any replacement financing, including any bank financing or debt securities issued in lieu thereof, the “Financing”). c) As of the date of this Agreementhereof, the Commitment Letter is in full force and effect and has is a legal, valid and binding obligation of Parent and, to the Knowledge of the Purchaser, the other parties thereto, enforceable against the Purchaser and, to the Knowledge of the Purchaser, the other parties thereto, subject to the Equitable Exceptions. As of the date hereof, the financing commitments thereunder have not been withdrawn, rescinded or terminated, and the Commitment Letter has not been amended, supplemented or otherwise amended or modified in any respect and no such amendment or modification is contemplated (other than as set forth in the fee letters with respect to flex rights and/or to add additional lenderscontemplated, arrangers, bookrunners, syndication agents and similar entities who had not executed the Commitment Letter as of the date of this Agreement), and the Commitment Letter, in the form so delivered, constitutes the legal, valid and binding obligation of, and is enforceable against, Parent and, to the knowledge of Parent, each of the other parties thereto, subject, in each case, to the Enforceability Exceptions. Except as set forth in the Commitment Letter and except for any related commitment letters, engagement letters and fee letters related to the permanent financing described in the Permitted Commitment Letter, as of the date of this Agreement, there are no contracts, agreements, “side letters” or other arrangements to which Parent or any of its affiliates is a party relating to the Commitment Letter or the Financing.
(b) Amendments. As of the date of this Agreementhereof, no event has occurred whichthat, with or without notice, lapse of time or both, constitutes, or would reasonably be expected to constitute, constitute a default or breach by on the part of Parent or, to the knowledge of Parent, under any other party thereto, of any material term of the Commitment Letter. As Letter (assuming for such purpose, the accuracy in all material respects of the date of this Agreement, no Financing Source party to the Commitment Letter has notified Parent of its termination or repudiation (or intent to terminate or repudiate) any of the commitments under such Commitment Letter or intent not to provide the Financing. Assuming the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and assuming satisfaction of the conditions in Article VII (other than the conditions set forth in Sections 7.2(a) and 7.2(b) and those conditions that by their nature can only be satisfied at the Closing, but subject to the satisfaction or waiver thereof), Parent has no reason to believe that any of the conditions to the funding of the Financing contemplated by the Commitment Letter and contained in the Commitment Letter will fail to be satisfied on the Closing Date or that the full amounts committed pursuant to the Commitment Letter will not be available to be funded on the Closing Date to the extent required, when taken together with cash or cash equivalents held by Parent Seller and the Company on the Closing Date and the other sources of funds available to Parent on the Closing Date, to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing.
(c) Parent acknowledges that its obligation to consummate the Merger as set forth in this Agreement is not contingent on Parent’s ability to obtain any financing, whether pursuant to the Commitment Letter or otherwise.
(d) Parent has fully paid (or caused to be paid) any and all commitment fees or other fees required by the Commitment Letter to be paid on or before the date of this Agreement. Assuming (i) the funding of the full amount of the Financing in accordance with and subject to the satisfaction of the conditions in the Commitment Letter, (ii) the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and (iii) satisfaction of the conditions in Article VII, the aggregate proceeds from the Financing (after netting out applicable fees, expenses, original issue discount and similar premiums and chargers and after giving effect of the maximum amount of flex (including original issue discount flex) provided under the Commitment Letter) constitute all of the financing necessary to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing and, when taken together with cash or cash equivalents held by Parent and the Company on the Closing Date and the other sources of funds available to Parent on the Closing Date, will be sufficient in amount to pay the foregoing amounts in full). The only conditions precedent related to the obligations of the Financing Sources party other parties to the Commitment Letter to fund the full amount of the Financing contemplated by to Parent pursuant to the terms of the Commitment Letter are not subject to any conditions precedent, “flex” provisions or other conditions other than as expressly set forth in the Commitment Letter. Assuming the Financing is funded in accordance with the Commitment Letter, the accuracy of the representations and warranties of the Seller and the Company and the performance by the Seller and the Company of their obligations under this Agreement, the Purchaser will have on the Closing Date sufficient funds to complete the transactions on the Closing Date and to pay all amounts contemplated by this Agreement to be paid by the Purchaser on the Closing Date.
Appears in 1 contract
Sufficient Funds. (a) Assuming Buyer has, on the truth and accuracy date hereof, commitments for all of the Company’s representations funds required in order to complete this transaction on the terms contained in this Agreement. Without limitation of the foregoing, attached as Schedule 5.5 hereto are complete and warranties set forth accurate copies of (i) an equity commitment letter (the “Equity Commitment Letter”) from ▇▇▇▇ Capital Fund VIII, L.P., and (ii) a debt commitment letter (the “Debt Commitment Letter”) from the financial institutions identified therein with respect to the financing of the transactions contemplated hereby (such equity and debt commitments collectively being the “Financing”). Subject to their terms and conditions, the Financing, together with all other funds of Buyer, is sufficient to allow Buyer to pay the full Merger Price and to satisfy in Article III cash all other obligations of Buyer required to be satisfied at the Closing, including discharge of all Indebtedness and compliance by Transaction Expenses to the Company extent required. As of the date hereof, the Equity Commitment Letter and the Debt Commitment Letter (together with the ancillary documents referenced therein or delivered to the Seller Representative) constitute all of the agreements entered into between each of ▇.▇. ▇▇▇▇▇▇ Securities, Inc., Citigroup Global Markets and ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, ▇▇▇▇ Capital Fund VIII, L.P. and/or its obligations hereunderaffiliates and Buyer and/or its affiliates with respect to the financing arrangements contemplated thereby. As of the date hereof, the Equity Commitment Letter and the Debt Commitment Letter are in each casefull force and effect and have not been modified or amended in any respect. As of the date hereof, assuming the accuracy, in all material respects, and assuming satisfaction of the conditions in Article VII (other than the conditions set forth in Sections 7.2(a) representations and 7.2(b) and those conditions that by their nature can only be satisfied at the Closing, but subject to the satisfaction or waiver thereof), Parent and Merger Sub will have available to them at the Effective Time all funds and commitments necessary to refinance in full all amounts outstanding under warranties of the Company Credit Agreement, the Company Receivables Financing in this Agreement and the accuracy and completeness of the information provided by the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger Buyer in the course of its due diligence review, Buyer has no reason to believe that such Financing shall not be available or that the equity and the Financing. Parent debt commitments shall not be funded, and Buyer has delivered to the Company true and complete copies of (i) a fully executed debt commitment letter, dated as of the date of this Agreement (including all exhibits thereto in effect on the date hereof) and (ii) the executed fee letter referenced therein, relating to fees not made any material misrepresentation with respect to the Financing contemplated by the commitment letter (collectively, the “Commitment Letter”), by Buyer in connection with obtaining such equity and among Parent and the Financing Sources specified therein (with only fee amounts and other economic terms, and the rates and amounts included in the “flex” provisions, redacted, none of which redacted provisions would adversely affect the conditionality, enforceability, termination or amount of the debt financing contemplated by the commitment letter). Pursuant to the Commitment Letter, and subject to the terms and conditions thereof, the Financing Sources party thereto have committed to provide Parent with the amounts set forth in the Commitment Letter for the purposes set forth therein (the debt financing contemplated in the Commitment Letter, together with, unless the context otherwise requires, any replacement financing, including any bank financing or debt securities issued in lieu thereof, the “Financing”)commitments. As of the date of this Agreementhereof, assuming the Commitment Letter is in full force and effect and has not been withdrawn, rescinded or terminated, or otherwise amended or modified in any respect and no amendment or modification is contemplated (other than as set forth in the fee letters with respect to flex rights and/or to add additional lenders, arrangers, bookrunners, syndication agents and similar entities who had not executed the Commitment Letter as of the date of this Agreement), and the Commitment Letter, in the form so delivered, constitutes the legal, valid and binding obligation of, and is enforceable against, Parent and, to the knowledge of Parent, each of the other parties thereto, subject, in each case, to the Enforceability Exceptions. Except as set forth in the Commitment Letter and except for any related commitment letters, engagement letters and fee letters related to the permanent financing described in the Commitment Letter, as of the date of this Agreement, there are no contracts, agreements, “side letters” or other arrangements to which Parent or any of its affiliates is a party relating to the Commitment Letter or the Financing.
(b) As of the date of this Agreement, no event has occurred which, with or without notice, lapse of time or both, constitutes, or would reasonably be expected to constitute, a default or breach by Parent or, to the knowledge of Parent, any other party thereto, of any term of the Commitment Letter. As of the date of this Agreement, no Financing Source party to the Commitment Letter has notified Parent of its termination or repudiation (or intent to terminate or repudiate) any of the commitments under such Commitment Letter or intent not to provide the Financing. Assuming the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each caseaccuracy, in all material respects, and assuming satisfaction of the conditions representations and warranties of the Company in Article VII (other than this Agreement and the conditions set forth in Sections 7.2(a) accuracy and 7.2(b) and those conditions that completeness of the information provided by their nature can only be satisfied at the Closing, but subject Company to the satisfaction or waiver thereof)Buyer in the course of its due diligence review, Parent Buyer has no reason to believe that there are any of the conditions to the funding payment of such cash or the Financing contemplated by the Commitment Letter and contained in the Commitment Letter will fail to drawing of such credit facilities which cannot be satisfied on the Closing Date or that the full amounts committed pursuant to the Commitment Letter will not be available to be funded on the Closing Date to the extent required, when taken together with cash or cash equivalents held by Parent and the Company on the Closing Date and the other sources Buyer as of funds available to Parent on the Closing Date, to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing.
(c) Parent acknowledges that its obligation to consummate the Merger as set forth in this Agreement is not contingent on Parent’s ability to obtain any financing, whether pursuant to the Commitment Letter or otherwise.
(d) Parent has fully paid (or caused to be paid) any and all commitment fees or other fees required by the Commitment Letter to be paid on or before the date of this Agreement. Assuming (i) the funding of the full amount of the Financing in accordance with and subject to the satisfaction of the conditions in the Commitment Letter, (ii) the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and (iii) satisfaction of the conditions in Article VII, the aggregate proceeds from the Financing (after netting out applicable fees, expenses, original issue discount and similar premiums and chargers and after giving effect of the maximum amount of flex (including original issue discount flex) provided under the Commitment Letter) constitute all of the financing necessary to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing and, when taken together with cash or cash equivalents held by Parent and the Company on the Closing Date and the other sources of funds available to Parent on the Closing Date, will be sufficient in amount to pay the foregoing amounts in full. The only conditions precedent related to the obligations of the Financing Sources party to the Commitment Letter to fund the full amount of the Financing contemplated by the Commitment Letter are expressly set forth in the Commitment Letter.
Appears in 1 contract
Sources: Merger Agreement (CRC Health CORP)
Sufficient Funds. (a) Assuming (i) the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance by of the Company with its obligations hereunder, in each case, in all material respects, and assuming satisfaction of the conditions in Article VII (other than the conditions set forth in Sections 7.2(aSection 3.5(a) and 7.2(b) and those conditions that by their nature can only be satisfied at the Closing, but subject to the satisfaction or waiver thereof), Parent and Merger Sub will have available to them at the Effective Time all funds and commitments necessary to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing. Parent has delivered to the Company true and complete copies of (i) a fully executed debt commitment letter, dated as of the date of this Agreement (including all exhibits thereto in effect on the date hereof) 3.8 and (ii) that the executed fee letter referenced thereinDebt Financing is funded in accordance with the Debt Commitment Letter, relating at the Closing the Parent Entities will have sufficient cash on hand to fees with respect to consummate the Financing transactions contemplated by this Agreement and satisfy all of its obligations under this Agreement, including the commitment letter payment of the Merger Consideration, any fees and expenses of or payable by the Parent Entities, Merger Sub I, Merger Sub II or the Surviving Company, any payments in respect of equity compensation obligations required to be made in connection with, or as a result of, the Mergers and any repayment or refinancing of any outstanding Indebtedness of the Parent Entities, the Company and their respective Subsidiaries required in connection therewith (collectively, the “Commitment Letter”"Financing Purposes"), by and among Parent and the Financing Sources specified therein (with only fee amounts and other economic terms, and the rates and amounts included in the “flex” provisions, redacted, none of which redacted provisions would adversely affect the conditionality, enforceability, termination or amount of the debt financing contemplated by the commitment letter). Pursuant to the Commitment Letter, and subject to the terms and conditions thereof, the Financing Sources party thereto have committed to provide Parent with the amounts set forth in the Commitment Letter for the purposes set forth therein (the debt financing contemplated in the Commitment Letter, together with, unless the context otherwise requires, any replacement financing, including any bank financing or debt securities issued in lieu thereof, the “Financing”). As of the date of this Agreement, the Commitment Letter is in full force and effect and has not been withdrawn, rescinded or terminated, or otherwise amended or modified in any respect and no amendment or modification is contemplated (other than as set forth in the fee letters with respect to flex rights and/or to add additional lenders, arrangers, bookrunners, syndication agents and similar entities who had not executed the Commitment Letter as of the date of this Agreement), and the Commitment Letter, in the form so delivered, constitutes the legal, valid and binding obligation of, and is enforceable against, Parent and, to the knowledge of Parent, each of the other parties thereto, subject, in each case, to the Enforceability Exceptions. Except as set forth in the Commitment Letter and except for any related commitment letters, engagement letters and fee letters related to the permanent financing described in the Commitment Letter, as of the date of this Agreement, there are no contracts, agreements, “side letters” or other arrangements to which Parent or any of its affiliates is a party relating to the Commitment Letter or the Financing.
(b) As of the date of this Agreement, the Parent Entities, Merger Sub I and Merger Sub II have received (i) an executed equity commitment letter dated as of date of this Agreement (the "Equity Commitment Letter") from the equity financing sources party thereto (the "Equity Financing Sources") pursuant to which the Equity Financing Sources have committed to provide the amount of cash equity financing as set forth in the Equity Commitment Letter, subject to the terms and conditions set forth therein (the "Equity Financing"), and (ii) an executed debt commitment letter and executed fee letter associated therewith, each dated as of date of this Agreement (such commitment letter, and all attached exhibits, schedules, annexes that are delivered on date of this Agreement and amendments thereto permitted by the terms hereof and any fee letter delivered on the date of this Agreement (which fee letter may be redacted as described below), collectively, the "Debt Commitment Letter" and, together with the Equity Commitment Letter, the "Commitment Letters") from the lenders party thereto (collectively, the "Lenders"), pursuant to which the Lenders have committed, subject to the terms and conditions set forth in the Debt Commitment Letter, to provide to the Parent Entities the amount of financing set forth in the Debt Commitment Letter (the "Debt Financing" and, together with the Equity Financing, the "Financing") for the Financing Purposes.
(c) A true, correct and complete copy of each of the fully executed Equity Commitment Letter, the fully executed Debt Commitment Letter and the fee and engagement letters related to the Debt Commitment Letter, each as in effect on date of this Agreement has been provided to the Company except that, in the case of the Debt Commitment Letter and related fee and engagement letters, the fees and other commercially sensitive information therein (including provisions in such fee letter related solely to fees, "flex terms" and economic terms) may have been redacted; provided, however, that no redacted term provides that the aggregate amount or net cash proceeds of the Debt Financing set forth in the unredacted portion of the Debt Commitment Letter could be reduced below the amount necessary to satisfy the Financing Purposes, or adds any conditions, contingencies or affects the availability of all or any portion of the Debt Financing (other than any fees, expenses, original issue discounts and similar premiums and charges) or the enforceability of the Debt Commitment Letter.
(d) As of date of this Agreement, (i) the Parent Entities have fully paid (or caused to be paid) all commitment and other fees, if any, required by the Commitment Letters (including the fee and engagement letters related to the Debt Commitment Letter) to be paid on or before date of this Agreement and (ii) each Commitment Letter (including the fee and engagement letters related to the Debt Commitment Letter) is a legal, valid and binding obligation of the Parent Entities and, to the knowledge of the Parent Entities, each other party thereto, and in full force and effect, has not been (other than as permitted hereunder), amended, modified, withdrawn, terminated or rescinded in any respect, and no event has occurred which, which (with or without notice, lapse of time or both, constitutes, or ) would reasonably be expected to constitute, constitute a default breach thereunder on the part of the Parent Entities.
(e) There are no side letters or breach by Parent or, other agreements relating to the knowledge of ParentCommitment Letters (including the fee letter entered into in connection with the Debt Financing) that would (A) impair, any other party thereto, of any term delay or prevent the consummation of the Mergers, (B) reduce the aggregate amount of the Debt Financing (unless such reduction is matched with an equal increase of the Equity Financing under the Equity Commitment Letter and/or Replacement Financing), (C) impose new or additional conditions or otherwise expand, amend or modify any of the conditions to the receipt of the Financing or (D) otherwise reasonably be expected to adversely affect the ability of the Parent Entities to timely consummate the Mergers. Except as expressly set forth in the Equity Commitment Letter. , there are no conditions precedent to the obligation of the Equity Financing Sources to provide the Equity Financing or any contingencies that would permit the Equity Financing Sources to reduce the total amount of Equity Financing.
(f) As of the date of this Agreement, no Financing Source party to the Commitment Letter has notified Parent of its termination or repudiation (or intent to terminate or repudiate) Entities do not have any of the commitments under such Commitment Letter or intent not to provide the Financing. Assuming the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and assuming satisfaction of the conditions in Article VII (other than the conditions set forth in Sections 7.2(a) and 7.2(b) and those conditions that by their nature can only be satisfied at the Closing, but subject to the satisfaction or waiver thereof), Parent has no reason to believe that any of the conditions to the funding of the Financing contemplated by the Commitment Letter and contained in the Commitment Letter applicable to them will fail to not be satisfied on the Closing Date a timely basis or that the full amounts committed pursuant to the Commitment Letter Financing will not be available to be funded the Parent Entities on the Closing Date to the extent required, when taken together with cash or cash equivalents held by Parent and the Company date on which the Closing Date and the other sources of funds available to Parent on the Closing Date, to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing.
(c) Parent acknowledges that its obligation to consummate the Merger as set forth in this Agreement is not contingent on Parent’s ability to obtain any financing, whether should occur pursuant to the Commitment Letter or otherwise.
(d) Parent has fully paid (or caused to be paid) any and all commitment fees or other fees required by the Commitment Letter to be paid on or before the date of this Agreement. Assuming (i) the funding of the full amount of the Financing in accordance with and subject to the satisfaction of the conditions in the Commitment Letter, (ii) the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and (iii) satisfaction of the conditions in Article VII, the aggregate proceeds from the Financing (after netting out applicable fees, expenses, original issue discount and similar premiums and chargers and after giving effect of the maximum amount of flex (including original issue discount flex) provided under the Commitment Letter) constitute all of the financing necessary to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing and, when taken together with cash or cash equivalents held by Parent and the Company on the Closing Date and the other sources of funds available to Parent on the Closing Date, will be sufficient in amount to pay the foregoing amounts in full1.5. The only conditions precedent related to the obligations of the Financing Sources party to Parent Entities, Merger Sub I and Merger Sub II under this Agreement are not conditioned in any manner upon the Commitment Letter to fund the full amount of the Financing contemplated by the Commitment Letter are expressly set forth in the Commitment LetterParent Entities obtaining any financing.
Appears in 1 contract
Sufficient Funds. (a) Assuming the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and assuming satisfaction of the conditions in Article VII (other than the conditions set forth in Sections 7.2(a) and 7.2(b) and those conditions that by their nature can only be satisfied at the Closing, but subject to the satisfaction or waiver thereof), Parent and Merger Sub will have available to them at the Effective Time all funds and commitments necessary to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing. Parent has delivered to the Company true and complete copies of (i) a fully executed debt commitment letterthe Wells Fargo Century Inc. Letter, dated as of the date hereof, by a▇▇ ▇▇ong Wells Fargo Century Inc., Parent and Merger Sub (the "FIRST DEBT L▇▇▇▇▇"), the Ore Hill Fund L.P. Letter, dated as of this Agreement (including all exhibits thereto in effect on the date hereof) and (ii) the executed fee letter referenced therein, relating to fees with respect to the Financing contemplated by the commitment letter (collectively, the “Commitment Letter”), by and among Ore Hill Fund L.P., Parent and Merger Sub (the "SECOND DEBT LETTER") and the Chase Capital Letter, dated as of the date hereof, by and among the Chase Capital business unit of JPMorgan Chase & Co., Parent and Merger Sub (the "THIRD DEBT LETTER" and, together with the First Debt Letter and the Second Debt Letter, the "DEBT COMMITMENT LETTERS") and the commitment letters, dated as of the date hereof, between Merger Sub and The Hidary Group, LLC, Seneca Capital Investments LLC, Boxing 2000 LLC, ▇▇▇▇ie Capital and Middlegate Securities Ltd. (the "EQUITY COMMITM▇▇▇ ▇▇TTERS" and, together with the Debt Commitment Letters, the "COMMITMENT LETTERS", the financing to be provided thereunder is referred to herein as the "FINANCING"). The aggregate proceeds of the Financing Sources specified therein (with only fee amounts and other economic termsare in an amount sufficient to consummate the Transactions, including to pay the aggregate Merger Consideration, and the rates to pay all related fees and amounts included in the “flex” provisions, redacted, none of which redacted provisions would adversely affect the conditionality, enforceability, termination or amount of the debt financing contemplated by the commitment letter). Pursuant to the Commitment Letter, and subject to the terms and conditions thereof, the Financing Sources party thereto have committed to provide Parent with the amounts set forth in the Commitment Letter for the purposes set forth therein (the debt financing contemplated in the Commitment Letter, together with, unless the context otherwise requires, any replacement financing, including any bank financing or debt securities issued in lieu thereof, the “Financing”)expenses. As of the date hereof, none of this Agreement, the Commitment Letter is in full force and effect and Letters has not been withdrawn, rescinded or terminated, or otherwise amended or modified in any respect and no amendment or modification is contemplated (other than as set forth in the fee letters with respect to flex rights and/or to add additional lenders, arrangers, bookrunners, syndication agents and similar entities who had not executed the Commitment Letter as of the date of this Agreement), and the Commitment Letter, in the form so delivered, constitutes the legal, valid and binding obligation of, and is enforceable against, Parent and, to the knowledge of Parent, each of the other parties thereto, subject, in each case, to the Enforceability Exceptions. Except as set forth in the Commitment Letter and except for any related commitment letters, engagement letters and fee letters related to the permanent financing described in the Commitment Letter, as of the date of this Agreement, there are no contracts, agreements, “side letters” conditions precedent or other arrangements contingencies related to which Parent or any of its affiliates is a party relating to the Commitment Letter or the Financing.
(b) As of the date of this Agreement, no event has occurred which, with or without notice, lapse of time or both, constitutes, or would reasonably be expected to constitute, a default or breach by Parent or, to the knowledge of Parent, any other party thereto, of any term of the Commitment Letter. As of the date of this Agreement, no Financing Source party to the Commitment Letter has notified Parent of its termination or repudiation (or intent to terminate or repudiate) any of the commitments under such Commitment Letter or intent not to provide the Financing. Assuming the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and assuming satisfaction of the conditions in Article VII (other than the conditions set forth in Sections 7.2(a) and 7.2(b) and those conditions that by their nature can only be satisfied at the Closing, but subject to the satisfaction or waiver thereof), Parent has no reason to believe that any of the conditions to the funding of the Financing contemplated by the Commitment Letter and contained in the Commitment Letter will fail to be satisfied on the Closing Date or that the full amounts committed pursuant to the Commitment Letter will not be available to be funded on the Closing Date to the extent required, when taken together with cash or cash equivalents held by Parent and the Company on the Closing Date and the other sources of funds available to Parent on the Closing Date, to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing.
(c) Parent acknowledges that its obligation to consummate the Merger as set forth in this Agreement is not contingent on Parent’s ability to obtain any financing, whether pursuant to the Commitment Letter or otherwise.
(d) Parent has fully paid (or caused to be paid) any and all commitment fees or other fees required by the Commitment Letter to be paid on or before the date of this Agreement. Assuming (i) the funding of the full amount of the Financing in accordance with and subject to the satisfaction of the conditions in the Commitment LetterFinancing, (ii) the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and (iii) satisfaction of the conditions in Article VII, the aggregate proceeds from the Financing (after netting out applicable fees, expenses, original issue discount and similar premiums and chargers and after giving effect of the maximum amount of flex (including original issue discount flex) provided under the Commitment Letter) constitute all of the financing necessary to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing and, when taken together with cash or cash equivalents held by Parent and the Company on the Closing Date and the other sources of funds available to Parent on the Closing Date, will be sufficient in amount to pay the foregoing amounts in full. The only conditions precedent related to the obligations of the Financing Sources party to the Commitment Letter to fund the full amount of the Financing contemplated by the Commitment Letter are expressly than those set forth in the Commitment LetterLetters. Subject to receipt of the aggregate proceeds of the Financing, at the Effective Time, Parent and Merger Sub will have sufficient cash and cash equivalent resources available to pay the aggregate Merger Consideration pursuant to the Transactions.
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Sufficient Funds. (a) Assuming Subject to the truth and accuracy receipt of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and assuming satisfaction of the conditions in Article VII (other than the conditions set forth in Sections 7.2(a) and 7.2(b) and those conditions that by their nature can only be satisfied at the Closing, but subject to the satisfaction or waiver thereof)Requisite Significant Stockholder Stockholder Approval, Parent and Merger Sub collectively have, and Parent will have make available to them at Merger Sub, sufficient funds to consummate the Transactions (including sufficient funds (a) to pay the aggregate Merger Consideration pursuant to Article III, (b) to make all required payments in respect of the Company Options and Restricted Stock pursuant to Section 3.4, (c) to perform Parent’s and Merger Sub’s other payment obligations required to be performed prior to and including the Effective Time under this Agreement and (d) to pay all funds fees, expenses and commitments necessary other amounts related to refinance in full all amounts outstanding under the Company Credit Transactions payable by either of them). Prior to the execution and delivery of this Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing. Parent has delivered to the Company true complete, correct and complete executed copies of the Equity Commitment Letters to provide equity financing for the Transactions in an aggregate amount set forth therein (ithe “Equity Financing”), including all exhibits, schedules or amendments thereto, which have not been amended or modified (and no such amendment or modification is contemplated) a fully executed debt commitment letter, dated as of the date of this Agreement (including all exhibits thereto in effect on Agreement. As of the date hereof) and (ii) the executed fee letter referenced therein, relating to fees with respect to the Financing contemplated by the commitment letter (collectivelyof this Agreement, the “Equity Commitment Letter”), Letter executed by and among Parent and the Financing Sources specified therein (with only fee amounts and other economic terms, and the rates and amounts included in the “flex” provisions, redacted, none of which redacted provisions would adversely affect the conditionality, enforceability, termination or amount of the debt financing contemplated by the commitment letter). Pursuant to the Commitment Letter, and Significant Stockholder is still subject to the terms and conditions thereofRequisite Significant Stockholder Stockholder Approval. As of the date of this Agreement, the Financing Sources party thereto have committed to provide Parent with the amounts set forth commitments contained in the Equity Commitment Letters have not been withdrawn or rescinded in any respect. As of the date of this Agreement, each Equity Commitment Letter for the purposes set forth therein (the debt financing contemplated is in the Commitment Letterfull force and effect, together withconstitutes legal, unless the context otherwise requiresvalid and binding obligations of Parent and, any replacement financing, including any bank financing or debt securities issued in lieu thereofto Parent’s Knowledge, the “Financing”other parties thereto, and is enforceable in accordance with its terms against Parent and Merger Sub, as applicable, and, to Parent’s Knowledge, the other parties thereto (in each case, as may be limited by bankruptcy, insolvency, moratorium or other similar Laws affecting or relating to the enforcement of creditors’ rights generally and general principles of equity). As of the date of this Agreement, the neither Parent or Merger Sub nor, to Parent’s Knowledge, any other party to an Equity Commitment Letter is in full force and effect and has not been withdrawn, rescinded breach of any of the terms or terminated, or otherwise amended or modified in any respect and no amendment or modification is contemplated (other than as conditions set forth in the fee letters with respect to flex rights and/or to add additional lenders, arrangers, bookrunners, syndication agents and similar entities who had not executed the Commitment Letter as of the date of this Agreement), and the such Equity Commitment Letter, in the form so delivered, constitutes the legal, valid and binding obligation of, and is enforceable against, Parent and, to the knowledge of Parent, each of the other parties thereto, subject, in each case, to the Enforceability Exceptions. Except as set forth in the Commitment Letter and except for any related commitment letters, engagement letters and fee letters related to the permanent financing described in the Commitment Letter, as of the date of this Agreement, there are no contracts, agreements, “side letters” or other arrangements to which Parent or any of its affiliates is a party relating to the Commitment Letter or the Financing.
(b) As of the date of this Agreement, no event has occurred which, with or without notice, lapse of time or both, constitutes, or would reasonably be expected to constituteconstitute a breach, default or failure to satisfy any condition precedent set forth therein. There is no fact or occurrence existing on the date of this Agreement that, with or without notice, lapse of time or both, could reasonably be expected to (a) make any of the assumptions or any of the statements set forth in the Equity Commitment Letters inaccurate, (b) result in any of the conditions in the Equity Commitment Letter not being satisfied, (c) cause the Equity Commitment Letter to be ineffective or (d) otherwise result in the Equity Commitment Letter not being available on a timely basis in order to consummate the Transactions. For the avoidance of doubt, provided that Significant Stockholder shall have complied with all of its obligations under Section 9(b) of the Support Agreement, any failure in and of itself to obtain the Requisite Significant Stockholder Stockholder Approval shall not be deemed as a default or breach by Parent or, to the knowledge of Parent, any other party thereto, of any term of the under its Equity Commitment LetterLetter or this Agreement by Significant Stockholder. As of the date of this Agreement, no Financing Source party to the Commitment Letter neither Sponsor nor Significant Stockholder has notified Parent of its termination or repudiation (or intent intention to terminate such Sponsor’s Equity Commitment Letter. Parent has paid in full any and all commitment or repudiate) other fees required by any Equity Commitment Letter that are due as of the date of this Agreement, and will pay, after the date of this Agreement, all such commitments and fees as they become due. There are no side letters, understandings or other agreements or arrangements relating to any Equity Commitment Letter to which Parent or any of the commitments under such Commitment Letter or intent not to provide the Financing. Assuming the truth and accuracy of the Company’s representations and warranties its Affiliates is a party other than as set forth in Article III such Equity Commitment Letter. Each Equity Commitment Letter contains all of the conditions precedent or other contingencies to the obligations of the parties thereunder to make Equity Financing available to Parent and compliance by Merger Sub on the Company with its obligations hereunder, in each case, in all material respects, and assuming terms therein. Subject to the satisfaction of the conditions in Article VII (other than the conditions set forth contained in Sections 7.2(a) 7.1 and 7.2(b) 7.2, as of the date of this Agreement Parent and those conditions that by their nature can only be satisfied at the Closing, but subject to the satisfaction or waiver thereof), Parent has Merger Sub have no reason to believe that any of the conditions precedent to the funding of the Equity Financing contemplated by the Commitment Letter and contained as set forth in the Commitment Letter will fail to be satisfied on the Closing Date or that the full amounts committed pursuant to the any Equity Commitment Letter will not be available to satisfied in connection with the consummation of the Transactions or that the Equity Financing will not be funded on the Closing Date to the extent required, when taken together with cash or cash equivalents held by Parent and the Company on the Closing Date and the other sources of funds available to Parent on the Closing Date; provided, however, that it is agreed that it is not a condition to refinance in full all amounts outstanding Closing under the Company Credit this Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing.
(c) for Parent acknowledges that its obligation to consummate the Merger as set forth in this Agreement is not contingent on Parent’s ability to obtain any financing, whether the financing pursuant to the Equity Commitment Letter Letters or otherwise.
(d) any alternative financing. Parent has fully paid (and Merger Sub have obtained the consent of the other parties under the Equity Commitment Letters to publicly file the Equity Commitment Letters with the SEC if requested by the SEC or caused to be paid) any and all commitment fees or other fees required by the Commitment Letter to be paid on or before the date of this Agreement. Assuming (i) the funding of the full amount of the Financing in accordance with and subject to the satisfaction of the conditions in the Commitment Letter, (ii) the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and (iii) satisfaction of the conditions in Article VII, the aggregate proceeds from the Financing (after netting out applicable fees, expenses, original issue discount and similar premiums and chargers and after giving effect of the maximum amount of flex (including original issue discount flex) provided under the Commitment Letter) constitute all of the financing necessary to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing and, when taken together with cash or cash equivalents held by Parent and the Company on the Closing Date and the other sources of funds available to Parent on the Closing Date, will be sufficient in amount to pay the foregoing amounts in full. The only conditions precedent related to the obligations of the Financing Sources party to the Commitment Letter to fund the full amount of the Financing contemplated by the Commitment Letter are expressly set forth in the Commitment LetterLaw.
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Sufficient Funds. Assuming (ai) Assuming the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and assuming satisfaction of the conditions in Article VII (other than the conditions set forth in Sections 7.2(a) and 7.2(b) and Section 7.2 (other than those conditions that by their nature can only are to be satisfied at the Closing, but subject to the satisfaction or waiver thereof), Parent which conditions are capable of and Merger Sub will have available to them would be satisfied at the Effective Time all funds and commitments necessary to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing. Parent has delivered to the Company true and complete copies of (i) a fully executed debt commitment letter, dated as of the date of this Agreement (including all exhibits thereto in effect on the date hereofClosing) and (ii) the executed fee letter referenced thereinsatisfaction of the Financing Conditions, relating to fees with respect the net proceeds of the Financing (both before and after giving effect to the Financing contemplated by the commitment letter (collectively, the exercise of any or all “Commitment Letter”market flex” provisions related thereto), by and among Parent and when funded in accordance with the Financing Sources specified therein (with only fee amounts and other economic termsCommitment Letters on the Closing Date will be sufficient to consummate the transactions contemplated on the Closing Date, and including for the rates and amounts included in the “flex” provisions, redacted, none of which redacted provisions would adversely affect the conditionality, enforceability, termination or amount payment of the debt financing contemplated by the commitment letter). Pursuant to the Commitment Letter, and subject to the terms and conditions thereof, the Financing Sources party thereto have committed to provide Parent with the amounts set forth in the Commitment Letter for the purposes set forth therein (the debt financing contemplated in the Commitment Letter, together with, unless the context otherwise requires, any replacement financing, including any bank financing or debt securities issued in lieu thereof, the “Financing”)Required Amount. As of the date of this Agreement, Parent has delivered to the Company a true and complete copy of the executed Debt Commitment Letter and Equity Commitment Letters. As of the date hereof, neither of the Commitment Letter is Letters has been modified, amended or altered, and, as of the date hereof, the respective commitments contained in full force and effect and has the Commitment Letters have not been withdrawn, withdrawn or rescinded or terminated, or otherwise amended or modified in any respect and no amendment respect. Neither Parent nor any of its Affiliates has entered into any agreement, side letter or modification is other commitment or arrangement relating to the financing of the Required Amount or transactions contemplated (by this Agreement that would contain any additional conditions precedent or contingencies that would permit the Lenders to reduce the total amount of the Debt Financing or the Guarantors to reduce the total amount of the Equity Financing to an amount less than the Required Amount, other than as set forth in the Commitment Letters, the fee letters with respect to flex rights and/or to add additional lendersthe engagement letters related thereto. The Commitment Letters are in full force and effect and represent a valid, arrangers, bookrunners, syndication agents binding and similar entities who had not executed the Commitment Letter as enforceable obligation of the date of this Agreement), and the Commitment Letter, in the form so delivered, constitutes the legal, valid and binding obligation of, and is enforceable against, Parent and, to the knowledge of the Parent, each of the other parties thereto, subject, in each case, to the Enforceability Exceptions. Except as set forth in the Commitment Letter and except for any related commitment letters, engagement letters and fee letters related to the permanent financing described in the Commitment Letter, as of the date of this Agreement, there are no contracts, agreements, “side letters” or other arrangements to which Parent or any of its affiliates is a party relating to the Commitment Letter or the Financing.
(b) As of the date of this Agreement, no event has occurred which, with or without notice, lapse of time or both, constitutes, or would reasonably be expected to constitute, a default or breach by Parent or, to the knowledge of Parent, any other party thereto, of any term of the Commitment Letter. As of the date of this Agreement, no Financing Source party to the Commitment Letter has notified Parent of its termination or repudiation (or intent to terminate or repudiate) any of the commitments under such Commitment Letter or intent not to provide the Financing. Assuming the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and assuming satisfaction of the conditions in Article VII (other than the conditions set forth in Sections 7.2(a) and 7.2(b) and those conditions that by their nature can only be satisfied at the Closing, but subject to the satisfaction qualification that such enforceability may be limited by bankruptcy, insolvency, reorganization or waiver thereof), Parent has no reason to believe that any other laws of the conditions to the funding of the Financing contemplated by the Commitment Letter and contained in the Commitment Letter will fail to be satisfied on the Closing Date or that the full amounts committed pursuant to the Commitment Letter will not be available to be funded on the Closing Date to the extent required, when taken together with cash or cash equivalents held by Parent and the Company on the Closing Date and the other sources of funds available to Parent on the Closing Date, to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses general application relating to the Merger and the Financing.
(c) Parent acknowledges that its obligation to consummate the Merger as set forth in this Agreement is not contingent on Parent’s ability to obtain any financing, whether pursuant to the Commitment Letter or otherwise.
(d) affecting rights of creditors. Parent has fully paid (or caused to be paid) any and all commitment fees or and other fees required by the Commitment Letter to be paid amounts that are due and payable on or before prior to the date of this AgreementAgreement in connection with the Financing. Assuming (i) the funding As of the full amount date hereof, to the knowledge of Parent, no event has occurred that, with or without notice, lapse of time, or both, would reasonably be expected to constitute a failure to satisfy a condition precedent on the part of Parent or Merger Sub or any other party thereto under the terms and conditions of the Financing in accordance with and subject to Commitment Letters. As of the date hereof, assuming satisfaction of the conditions set forth in Section 7.2 and completion of the Commitment LetterMarketing Period, Parent does not have any reason to believe that (i) any of the conditions to the Financing will not be satisfied or (ii) the truth and accuracy of the Company’s representations and warranties set forth in Article III and compliance by the Company with its obligations hereunder, in each case, in all material respects, and (iii) satisfaction of the conditions in Article VII, the aggregate proceeds from the Financing (after netting out applicable fees, expenses, original issue discount and similar premiums and chargers and after giving effect of the maximum amount of flex (including original issue discount flex) provided under the Commitment Letter) constitute all of the financing necessary to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing and, when taken together with cash or cash equivalents held by Parent and the Company on the Closing Date and the other sources of funds will not be available to Parent and Merger Sub on the Closing Date, will be sufficient in amount to pay the foregoing amounts in full. The only There are no conditions precedent related to the obligations funding or investing (as applicable) of the Financing Sources party other than the Financing Conditions. Subject to the Commitment Letter terms and conditions of this Agreement (including Article VIII and Section 9.15), Parent understands and acknowledges that under the terms of this Agreement, the obligations of Parent and Merger Sub to fund consummate the full amount Merger are not in any way contingent upon or otherwise subject to the consummation by Parent or Merger Sub of any financing arrangements, the Financing contemplated obtaining by Parent or Merger Sub of any financing or the Commitment Letter are expressly set forth in the Commitment Letteravailability, grant, provision or extension of any financing to Parent or Merger Sub.
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Sources: Merger Agreement (Allscripts Healthcare Solutions, Inc.)