Syndication. All aspects of the syndication of any New Bank Facility, including, without limitation, timing, potential syndicate members to be approached (which shall be identified by the Arranger subject to your approval right as set forth below), titles, initial and final allocations and division of fees, shall be determined by the Arranger in consultation with you; provided that each potential syndicate member to be approached must be approved by you (such approval not to be unreasonably withheld, delayed or conditioned) (it being agreed that each person that is currently a “Lender”, or hereafter becomes a “Lender” with your consent, under the Existing Credit Agreement is hereby approved by you). Citi reserves the right, prior to or after the execution of definitive documentation for the 364-Day Facility (but not before (i) the public announcement by you of the Acquisition and (ii) the receipt of customary commitment advices from Lenders other than Citi for at least US$700,000,000 of the principal amount of the 364-Day Facility), to syndicate all or a portion of its commitment hereunder to one or more Lenders pursuant to a syndication to be managed exclusively by the Arranger. The Arranger intends to commence its syndication efforts with respect to the 364-Day Facility promptly upon your execution and delivery to us of this Commitment Letter, and will commence the syndication of any other New Bank Facility as such time as shall be mutually determined by you and by the Arranger. Until the closing under the definitive documentation for any New Bank Facility (such date, the “Syndication End Date” with respect to such New Bank Facility), you agree to actively assist the Arranger in completing a syndication of such New Bank Facility that is reasonably satisfactory to us, including, without limitation, by promptly preparing and providing the Arranger with such information with respect to the Guarantor and its subsidiaries, in each case including financial information, as the Arranger may reasonably deem necessary to arrange and complete a successful syndication of any New Bank Facility. Such assistance shall include, (a) your using your commercially reasonable efforts to ensure that any syndication efforts benefit materially from your existing lending and investment banking relationships, (b) direct contact between senior management, representatives and advisors of you, on the one hand, and the proposed Lenders and rating agencies identified by the Arranger, on the other hand, at times and places reasonably requested by the Arranger and consented to by the Borrower (such consent not to be unreasonably withheld, delayed or conditioned), (c) assistance by you in the prompt preparation of a Confidential Information Memorandum for any New Bank Facility and other marketing materials and information reasonably deemed necessary by the Arranger to complete a successful syndication of such New Bank Facility for delivery to potential syndicate members and participants, in each case in form and substance customary for transactions of this type and otherwise reasonably satisfactory to the Arranger, including, without limitation, estimates, forecasts, projections and other forward-looking financial information prepared by the Guarantor regarding the future consolidated performance of the Guarantor and its subsidiaries (including projections for the third and fourth quarters of the fiscal year 2014 and for the fiscal years 2015 and 2016 that include the Acquired Company and its subsidiaries in the form of such projections delivered to and approved by the Arranger on or prior to the date hereof) (collectively, the “Projections”), and (d) the hosting, with the Arranger, of one or more meetings or conference calls with prospective Lenders at the request of the Arranger. You further agree that prior to, or promptly after, the announcement of the Acquisition you will advise each of ▇▇▇▇▇’▇ Investors Service, Inc. (“▇▇▇▇▇’▇”), Standard & Poor’s Ratings Group, a division of McGraw Hill Financial, Inc. (“S&P”), and Fitch IBCA, Inc. (“Fitch”) of the Transactions, including the nature of the contemplated financing therefor. You also agree that, until the Syndication End Date, you and your subsidiaries will not issue, sell, offer, place or arrange, or engage in any discussions with respect to any of the foregoing, any debt securities or commercial bank or other credit facilities of the Guarantor, the Borrower or their respective subsidiaries, other than (i) the Bridge Loan Facility, (ii) any New Bank Facility, (iii) the New Notes in an aggregate principal amount of up to $1,000,000,000, (iv) indebtedness under the existing commitments available under the Existing Credit Agreement, (v) working capital and overdraft facilities provided to the Borrower and its subsidiaries in the ordinary course of business and (vi) commercial paper financings in the ordinary course of business, without the prior written consent of the Arranger.
Appears in 1 contract
Syndication. All aspects (a) The parties hereto agree and acknowledge that, on and after the Amendment Effective Date and prior to September 30, 2021, the Parent Borrower may reallocate the New Revolving Commitments from the Incremental Revolving Lenders to Additional Incremental Revolving Lenders to reduce the New Revolving Commitments held by the Incremental Revolving Lenders, which reallocation shall be made in the Parent Borrower’s sole discretion and may be made on a non-pro rata basis.
(b) The Parent Borrower shall notify the Administrative Agent and each Incremental Revolving Lender in writing of the syndication updated allocation of New Revolving Commitments among the Incremental Revolving Lenders and the Additional Incremental Revolving Lenders along with an updated version of Schedule 1 hereto setting forth such updated allocation (each such notice, an “Updated Allocation Notice”).
(c) On the fifth (5th) Business Day following the delivery of any New Bank FacilityUpdated Allocation Notice (or such later date as the conditions in the following proviso shall be satisfied), includingeach applicable Incremental Revolving Lender shall be automatically deemed to have assigned and delegated, without limitationrecourse, timingall its interests, potential syndicate members rights and obligations in the New Revolving Commitments and any related Loans (as the Parent Borrower shall elect) under the Credit Agreement to be approached an Additional Incremental Revolving Lender that shall assume such obligations (which shall Additional Incremental Revolving Lender may be identified by another Lender, if a Lender accepts such assignment) in accordance with the Arranger subject relevant Updated Allocation Notice unless such assignment and delegation has already occurred in a manner reasonably satisfactory to your approval right as set forth below), titles, initial the Parent Borrower and final allocations and division of fees, shall be determined by the Arranger in consultation with youAdministrative Agent; provided that each potential syndicate member to be approached must be approved by you (such approval not to be unreasonably withheld, delayed or conditioned) (it being agreed that each person that is currently a “Lender”, or hereafter becomes a “Lender” with your consent, under the Existing Credit Agreement is hereby approved by you). Citi reserves the right, prior to or after the execution of definitive documentation for the 364-Day Facility (but not before (i) the public announcement by you of the Acquisition and (ii) the receipt of customary commitment advices from Lenders other than Citi for at least US$700,000,000 of the principal amount of the 364-Day Facility), to syndicate all or a portion of its commitment hereunder to one or more Lenders pursuant to a syndication to be managed exclusively by the Arranger. The Arranger intends to commence its syndication efforts with respect to the 364-Day Facility promptly upon your execution and delivery to us of this Commitment Letter, and will commence the syndication of any other New Bank Facility as such time as Parent Borrower shall be mutually determined by you and by the Arranger. Until the closing under the definitive documentation for any New Bank Facility (such date, the “Syndication End Date” with respect to such New Bank Facility), you agree to actively assist the Arranger in completing a syndication of such New Bank Facility that is reasonably satisfactory to us, including, without limitation, by promptly preparing and providing the Arranger with such information with respect to the Guarantor and its subsidiaries, in each case including financial information, as the Arranger may reasonably deem necessary to arrange and complete a successful syndication of any New Bank Facility. Such assistance shall include, (a) your using your commercially reasonable efforts to ensure that any syndication efforts benefit materially from your existing lending and investment banking relationships, (b) direct contact between senior management, representatives and advisors of you, on the one hand, and the proposed Lenders and rating agencies identified by the Arranger, on the other hand, at times and places reasonably requested by the Arranger and consented to by the Borrower (such consent not to be unreasonably withheld, delayed or conditioned), (c) assistance by you in the prompt preparation of a Confidential Information Memorandum for any New Bank Facility and other marketing materials and information reasonably deemed necessary by the Arranger to complete a successful syndication of such New Bank Facility for delivery to potential syndicate members and participants, in each case in form and substance customary for transactions of this type and otherwise reasonably satisfactory to the Arranger, including, without limitation, estimates, forecasts, projections and other forward-looking financial information prepared by the Guarantor regarding the future consolidated performance of the Guarantor and its subsidiaries (including projections for the third and fourth quarters of the fiscal year 2014 and for the fiscal years 2015 and 2016 that include the Acquired Company and its subsidiaries in the form of such projections delivered to and approved by the Arranger on or prior to the date hereof) (collectively, the “Projections”), and (d) the hosting, with the Arranger, of one or more meetings or conference calls with prospective Lenders at the request of the Arranger. You further agree that prior to, or promptly after, the announcement of the Acquisition you will advise each of ▇▇▇▇▇’▇ Investors Service, Inc. (“▇▇▇▇▇’▇”), Standard & Poor’s Ratings Group, a division of McGraw Hill Financial, Inc. (“S&P”), and Fitch IBCA, Inc. (“Fitch”) of the Transactions, including the nature of the contemplated financing therefor. You also agree that, until the Syndication End Date, you and your subsidiaries will not issue, sell, offer, place or arrange, or engage in any discussions with respect to any of the foregoing, any debt securities or commercial bank or other credit facilities of the Guarantor, the Borrower or their respective subsidiaries, other than (i) the Bridge Loan Facility, (ii) any New Bank Facility, (iii) the New Notes in an aggregate principal amount of up to $1,000,000,000, (iv) indebtedness under the existing commitments available under the Existing Credit Agreement, (v) working capital and overdraft facilities provided to the Borrower and its subsidiaries in the ordinary course of business and (vi) commercial paper financings in the ordinary course of business, without have received the prior written consent of the ArrangerAdministrative Agent to such assignee Additional Incremental Revolving Lender to the extent required by Section 10.04 of the Credit Agreement, which consent shall not unreasonably be withheld, conditioned or delayed, and (ii) such assignor Lender shall have received payment of an amount equal to the outstanding principal of its Loans made pursuant to its New Revolving Commitments being assigned (and funded participations in LC Disbursements and Swingline Loans, to the extent applicable) accrued interest thereon, accrued fees and all other amounts payable to it hereunder with respect to such New Revolving Commitments from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrowers (in the case of all other amounts). Each of the Parent Borrower, the Administrative Agent and the Incremental Revolving Lenders hereby agree (A) to execute such documentation as the Parent Borrower or the Administrative Agent may reasonably request from time to time to accomplish the foregoing (including any Assignment and Assumption) and (B) upon each assignment and delegation contemplated by this clause (c), (x) the updated allocations set forth in the updated version of Schedule 1 hereto provided by the Parent Borrower in the relevant Updated Allocation Notice shall each time amend and restate Schedule 1 hereto in its entirety and shall be binding on each of the parties hereto and (y) each commitment of an Additional Incremental Revolving Lender in respect of the New Revolving Commitments on such Schedule 1 shall be deemed to be a New Revolving Commitment without further action by any party.
(d) Notwithstanding anything to the contrary in this Agreement or any Loan Document, the New Revolving Commitments shall not become effective (and no Incremental Revolving Commitment shall be incurred) until the Incremental Effective Date. For the avoidance of doubt, the New Revolving Commitments may be reallocated in accordance with this Section 4 whether or not the Incremental Effective Date has occurred.
Appears in 1 contract
Sources: Credit Agreement (Coty Inc.)
Syndication. All aspects The Arranger intends and reserves the right, after the execution of the Bridge Loan Agreement, to syndicate all or a part of the Initial Lenders’ Commitments to one or more financial institutions and/or lenders (collectively with the Initial Lenders, the “Lenders”) in one or more stages, and you acknowledge and agree that the commencement of syndication shall occur in the discretion of any New Bank Facilitythe Arranger in consultation with you. The selection of the Lenders (a) from the date hereof until the earlier of 30 days following the date hereof and the date of the completion of Successful Syndication (as defined below) (the “Initial Syndication Period”), including, without limitation, timing, potential syndicate members to be approached (which shall be identified made jointly by the Arranger subject and the Borrower in accordance with the syndication plan (the “Syndication Plan”) for the Bridge Facility agreed to your by the Borrower and the Arranger prior to the date hereof (provided, that such Syndication Plan shall include the pre-approval right of any “Lender” under and as set forth belowdefined in the Existing Credit Agreement), titles(b) following the Initial Syndication Period, initial if and final allocations and division of feesfor so long as a Successful Syndication (as defined below) has not been achieved, shall be determined made by the Arranger in consultation with youthe Borrower and (c) following the achievement of a Successful Syndication, any further assignments of Commitments shall be in accordance with Section 10.6 of the Bridge Loan Agreement. The Arranger will not syndicate the Commitments to any institution identified as a “Disqualified Lender” in the Syndication Plan. The Arranger will lead the syndication, including determining the timing of all offers to potential Lenders, any title of agent or similar designations or roles awarded to any Lender (subject, however, to your rights to appoint Additional Agents as provided above) and the acceptance of commitments, the amounts offered, the final commitment allocations and the compensation provided to each Lender from the amounts to be paid to the Initial Financing Parties pursuant to the term of the Bridge Loan Agreement and this Fee and Syndication Letter; provided provided, that (x) during the Initial Syndication Period, all such determinations shall be made jointly by the Arranger and the Borrower in accordance with the Syndication Plan and (y) following the Initial Syndication Period, such determinations shall be made by the Arranger in consultation with the Borrower. The Commitments of the Initial Lenders under the Bridge Loan Agreement shall be reduced on a pro rata basis (or allocated between them as they may otherwise determine) pound-for-pound as and when Commitments for the Bridge Facility are received from Lenders to the extent that each potential syndicate member such Lender becomes a party to be approached must be the Bridge Loan Agreement as a “Lender” thereunder, and you agree, promptly upon the Arranger’s request, to execute an Assignment and Assumption with respect to each Lender that is selected in accordance with the foregoing provisions of this Section 2; provided, further, however, that in the case of any syndication of a portion of the Commitments as set forth above other than to a Lender which either (x) is set forth in the Syndication Plan or the Borrower has otherwise approved by you (such approval not to be unreasonably withheld, delayed or conditioned; provided, that if the Certain Funds Period has not terminated such approval shall be at the Borrower’s sole discretion) or (it being agreed that each person that y) is currently a “Lender”commercial or investment bank whose long term senior unsecured debt is rated investment grade by ▇▇▇▇▇’▇ (as defined below) and S&P (as defined below) upon first becoming party to the Bridge Loan Agreement, the Initial Lenders shall not be relieved, released or hereafter becomes a “Lender” with your consent, novated from their respective obligations under the Existing Credit Bridge Loan Agreement is hereby approved by you). Citi reserves the right, prior to or after the execution of definitive documentation for the 364-Day Facility (but not before (i) the public announcement by you of the Acquisition and (ii) the receipt of customary commitment advices from Lenders other than Citi for at least US$700,000,000 of the principal amount of the 364-Day Facility), to syndicate all or a portion of its commitment hereunder to one or more Lenders pursuant to a syndication to be managed exclusively by the Arranger. The Arranger intends to commence its syndication efforts with respect to the 364-Day Facility promptly upon your execution and delivery to us of this Commitment Letter, and will commence the syndication of any other New Bank Facility as such time as shall be mutually determined by you and by the Arranger. Until the closing under the definitive documentation for any New Bank Facility (such date, the “Syndication End Date” with respect to such New Bank Facility), you agree portion of the Initial Lenders’ respective Commitments until the funding of the Advances on the Closing Date has occurred and the Certain Funds Period has terminated. The Borrower agrees to actively assist the Arranger in completing a syndication of such New Bank Facility that is reasonably satisfactory to us, including, without limitation, by promptly preparing and providing the Arranger with such information with respect to the Guarantor and its subsidiaries, in each case including financial information, as the Arranger may reasonably deem necessary to arrange and complete a successful syndication of any New Bank Facility. Such assistance shall include, (a) your using your use commercially reasonable efforts to ensure that any the Arranger’s syndication efforts benefit materially from your the existing lending relationships of the Borrower and investment banking relationshipsits subsidiaries. To facilitate an orderly and Successful Syndication, you agree that until the earliest of (x) the termination of the syndication by the Arranger, (y) the date a Successful Syndication is achieved and (z) 60 days following the Closing Date (such earliest date, the “Syndication Date”), the Borrower will not syndicate or issue, attempt to syndicate or issue, announce or authorize the announcement of the syndication or issuance of any debt facility or any debt or equity security of the Borrower or any of its subsidiaries that would reasonably be expected to materially impair the syndication of the Bridge Facility as reasonably determined by the Arranger, including any renewals or refinancings of any existing debt facility or debt security (other than (a) the Bridge Facility, (b) direct contact between senior managementthe Permanent Financing, representatives (c) commercial paper issuance, (d) ordinary course capital leases, letters of credit and advisors purchase money and equipment financings, (e) intercompany debt among the Borrower and/or its subsidiaries, (f) any amendment, refinancing or renewal of youthe Existing Credit Agreement; provided, on the one handthat (i) such amendment, and the proposed Lenders and rating agencies identified refinancing or renewal shall be actively coordinated by the Arranger, on the other hand, at times and places reasonably requested by applicable administrative agent thereunder together with the Arranger and consented to (ii) the aggregate commitments thereunder shall not be increased by more than $300,000,000, without the Borrower prior written consent of the Arranger (such consent not to be unreasonably withheld) and (g) debt of the Borrower incurred to refinance, delayed repurchase, repay, redeem or conditioneddefease the Borrower’s debt in respect of its $300,000,000 2.35% senior notes due 2019). Until the Syndication Date, the Borrower agrees to cooperate with the Arranger in connection with (ci) assistance by you in the prompt preparation of a one or more customary information packages for the Bridge Facility regarding the business, operations, financial projections and prospects of the Borrower and the Acquired Business (collectively, the “Confidential Information Memorandum for any New Bank Facility and other marketing materials and Memorandum”) including, without limitation, all information relating to the transactions contemplated hereunder prepared by or on behalf of the Borrower deemed reasonably deemed necessary by the Arranger to complete a successful the syndication of such New Bank Facility for delivery the Bridge Facility, (ii) using commercially reasonable efforts to potential syndicate members and participants, in each case in form and substance customary for transactions of this type and otherwise reasonably satisfactory to the Arranger, including, without limitation, estimates, forecasts, projections and other forward-looking financial information prepared by the Guarantor regarding the future consolidated performance of the Guarantor and its subsidiaries (including projections for the third and fourth quarters of the fiscal year 2014 and for the fiscal years 2015 and 2016 that include the Acquired Company and its subsidiaries in the form of such projections delivered to and approved by the Arranger on or obtain prior to the date hereof) (collectively, the “Projections”), and (d) the hosting, with the Arranger, launch of one or more meetings or conference calls with prospective Lenders at the request general syndication updated ratings of the Arranger. You further agree that prior to, or promptly after, the announcement of the Acquisition you will advise each of Borrower’s senior unsecured indebtedness from ▇▇▇▇▇’▇ Investors ServiceInvestor Services, Inc. (“▇▇▇▇▇’▇Moody’s”), ) and from Standard & Poor’s Ratings Group, a division of McGraw Hill Financial, Inc. Financial Services LLC (“S&P”), and Fitch IBCA, Inc. (“Fitch”) of in each case taking into account the Transactions, including the nature of the contemplated financing therefor. You also agree that, until the Syndication End Date, you and your subsidiaries will not issue, sell, offer, place or arrange, or engage in any discussions with respect to any of the foregoing, any debt securities or commercial bank or other credit facilities of the Guarantor, the Borrower or their respective subsidiaries, other than (i) the Bridge Loan Facility, (ii) any New Bank Facility, (iii) the New Notes presentation of one or more information packages for the Bridge Facility in an aggregate principal amount format and content reasonably acceptable to the Arranger and the Borrower (collectively, the “Lender Presentation”) in meetings and other communications with prospective Lenders or agents in connection with the syndication of up to $1,000,000,000the Bridge Facility, (iv) indebtedness under executing one or more Assignment and Assumptions with Lenders selected in accordance with the existing commitments available under the Existing Credit Agreement, foregoing provisions of this Section 2 and (v) working capital arranging for direct contact between senior management and overdraft facilities provided representatives, with appropriate seniority and expertise, of the Borrower with prospective Lenders and participation of such persons in meetings at reasonable times and locations mutually agreed upon. It is also understood that the Borrower will not be required to provide any information to the extent that the provision thereof would violate (i) any attorney-client privilege or (ii) law, rule or regulation applicable to the Borrower, the Acquired Business or you and their respective affiliates or (iii) any obligation of confidentiality from a third party binding on you, the Acquired Business or your or their respective affiliates (so long as (x) such confidentiality obligation was not entered into in contemplation of the Transactions, (y) you use commercially reasonable efforts to obtain a waiver of such confidentiality obligation and/or otherwise communicate the relevant information in a way that does not breach such confidentiality obligation and (z) you provide the Arranger with notice of such confidentiality obligation, but solely if providing such notice would not violate such confidentiality obligation). The Borrower acknowledges that it is solely responsible for the contents of the Confidential Information Memorandum and the Lender Presentation (other than, in each case, any information contained therein, that has been provided for inclusion therein by the Initial Financing Parties solely to the extent such information relates to the Initial Financing Parties) and the Initial Financing Parties will be using and relying upon the contents of any such Confidential Information Memorandum and Lender Presentation and all other written information, documentation or materials, in each case, delivered by or on your behalf to the Initial Financing Parties in connection therewith (collectively, the “Information”) without independent verification thereof. The Borrower agrees that Information regarding the Bridge Facility and Information provided by the Borrower or its subsidiaries representatives to any Initial Financing Party in connection with the Bridge Facility (including, without limitation, draft and execution versions of the Loan Documents, the Confidential Information Memorandum, the Lender Presentation, publicly filed financial statements, and draft or final offering materials relating to contemporaneous or prior securities issuances by the Borrower) may be disseminated to potential Lenders and other persons through one or more secure internet sites (including an IntraLinks, SyndTrak or other electronic workspace (the “Platform”)) created for purposes of syndicating the Bridge Facility or otherwise, in accordance with the Arranger’s standard syndication practices, and you acknowledge that neither the Initial Financing Parties nor any of their respective affiliates will be responsible or liable to you or any other person or entity for damages arising from the use by others of any Information or other materials obtained on the Platform except to the extent such damages are found to have resulted from the bad faith, willful misconduct or gross negligence of or such Initial Financing Party as determined by a court of competent jurisdiction in a final and non-appealable judgment.
(a) drafts and final versions of the Loan Documents; (b) administrative materials prepared by the Arranger for prospective Lenders (such as a lender meeting invitation, allocations and funding and closing memoranda); and (c) term sheets and notification of any changes in the ordinary course of business and (vi) commercial paper financings in the ordinary course of business, without the prior written consent terms of the ArrangerBridge Facility.
Appears in 1 contract
Sources: Bridge Loan Agreement
Syndication. All aspects We intend to syndicate the Bridge Facility (including, in the discretion of the syndication Lead Arrangers, all or part of any New Bank Facilitythe commitments of the Initial Lenders) to a group of lenders identified by us and reasonably acceptable to you (such acceptance not to be unreasonably withheld or delayed), including, without limitation, timingany relationship lenders designated by you and reasonably acceptable to the Lead Arrangers (together with the Initial Lenders, potential syndicate members the “Lenders”). Notwithstanding any other provision of this Commitment Letter to be approached the contrary, unless you agree in writing, (which a) no Initial Lender shall be identified by the Arranger subject relieved, released or novated from its respective obligations hereunder (including its obligation to your approval right as set forth below), titles, initial and final allocations and division of fees, shall be determined by the Arranger fund its respective commitment in consultation with you; provided that each potential syndicate member to be approached must be approved by you (such approval not to be unreasonably withheld, delayed or conditioned) (it being agreed that each person that is currently a “Lender”, or hereafter becomes a “Lender” with your consent, under the Existing Credit Agreement is hereby approved by you). Citi reserves the right, prior to or after the execution of definitive documentation for the 364-Day Facility (but not before (i) the public announcement by you respect of the Acquisition and (iiBridge Facility on the Delayed Draw Closing Date) the receipt of customary commitment advices from Lenders other than Citi for at least US$700,000,000 in connection with any syndication, assignment or participation of the principal amount of Bridge Facility, including its commitments in respect thereof, until the 364-Day Facility)Delayed Draw Closing Date has occurred, to syndicate all (b) no assignment or a portion of its commitment hereunder to one or more Lenders pursuant to a syndication to be managed exclusively by the Arranger. The Arranger intends to commence its syndication efforts novation shall become effective with respect to all or any portion of any Initial Lender’s commitments in respect of the 364-Day Bridge Facility until the Delayed Draw Closing Date has occurred, and (c) each Initial Lender shall retain exclusive control over all rights and obligations with respect to its commitments in respect of the Bridge Facility, including all rights with respect to consents, modifications, supplements, waivers and amendments, until the Delayed Draw Closing Date has occurred and the initial funding under the Bridge Facility has been made. The Lead Arrangers intend to commence syndication efforts promptly upon your execution after the date hereof, and delivery to us until the date that is the earliest of (x) the date all commitments in respect of the Bridge Facility are terminated and no Bridge Loans are outstanding, (y) 60 days after the Delayed Draw Closing Date and (z) the date on which this Commitment Letter, and will commence Letter expires or terminates in accordance with the syndication of any other New Bank Facility as such time as shall be mutually determined by you and by the Arranger. Until the closing under the definitive documentation for any New Bank Facility terms hereof (such date, the “Syndication End Date” with respect to such New Bank Facility”), you agree to actively assist (and, solely to the Arranger extent permitted under the Merger Agreement, to use your commercially reasonable efforts to cause the Other MA Parties to actively assist) the Lead Arrangers in completing a syndication of such New Bank Facility that is reasonably satisfactory to us, including, without limitation, by promptly preparing the Lead Arrangers and providing the Arranger with such information with respect to the Guarantor and its subsidiaries, in each case including financial information, as the Arranger may reasonably deem necessary to arrange and complete a successful syndication of any New Bank Facilityyou. Such assistance shall include, include (aA) your using commercially reasonable efforts to ensure that the syndication efforts benefit from your and your affiliates’ existing banking relationships (and, solely to the extent permitted under the Merger Agreement, using your commercially reasonable efforts to ensure that any the syndication efforts benefit materially from your the Other MA Parties and their affiliates’ existing lending and investment banking relationships), (bB) at reasonable times and with reasonable prior notice, direct contact between your senior management, representatives management and advisors of you, on the one hand, and the proposed Lenders (and, solely to the extent permitted under the Merger Agreement, using your commercially reasonable efforts to ensure such contact between senior management of the Other MA Parties and rating agencies identified by the Arranger, on the other hand, at times and places reasonably requested by the Arranger and consented to by the Borrower (such consent not to be unreasonably withheld, delayed or conditionedproposed Lenders), (cC) your preparing and providing (and, solely to the extent permitted under the Merger Agreement, using commercially reasonable efforts to cause the Other MA Parties to prepare and provide) to the Lead Arrangers all information with respect to you and your affiliates and the Other MA Parties and their affiliates and the Merger, including the financial information described on Exhibit C hereto and Projections (as defined below), as the Lead Arrangers may reasonably request in connection with the arrangement and syndication of the Bridge Facility and your assistance by you (and, solely to the extent permitted under the Merger Agreement, using your commercially reasonable efforts to cause the Other MA Parties to assist) in the prompt our preparation of one or more confidential information memoranda (each, a “Confidential Information Memorandum for any New Bank Facility Memorandum”) and other marketing materials to be used in connection with the syndication (all such information, memoranda and information reasonably deemed necessary by the Arranger to complete a successful syndication of such New Bank Facility for delivery to potential syndicate members and participantsmaterial, in each case in form and substance customary for transactions of this type and otherwise reasonably satisfactory to the Arranger, including, without limitation, estimates, forecasts, projections and other forward-looking financial information prepared by the Guarantor regarding the future consolidated performance of the Guarantor and its subsidiaries (including projections for the third and fourth quarters of the fiscal year 2014 and for the fiscal years 2015 and 2016 that include the Acquired Company and its subsidiaries in the form of such projections delivered to and approved by the Arranger on or prior to the date hereof) (collectively, the “ProjectionsInformation Materials”), and (dD) the your hosting, with the ArrangerLead Arrangers, of one or more meetings or conference calls with of prospective Lenders at times and locations to be mutually agreed (and, solely to the request extent permitted under the Merger Agreement, using your commercially reasonable efforts to cause the officers of the ArrangerOther MA Parties to be available for such meetings) and (E) your ensuring that there is no competing offering, placement, arrangement or syndication of any bank financing (other than asset-level non-recourse financing and any financing to refinance, replace or repay all or any portion of the Bridge Facility) or announcement thereof by or on behalf of you or any of your subsidiaries (and, solely to the extent permitted under the Merger Agreement, your using commercially reasonable efforts to ensure there is no competing offering, placement, arrangement or syndication of such bank financing, or announcement thereof, by or on behalf of the Other MA Parties or any of their subsidiaries) if such offering, placement or arrangement would materially and adversely impair the primary syndication of the Bridge Facility. The Lead Arrangers (with your consent (not to be unreasonably withheld or delayed)) will manage all aspects of the syndication, including decisions as to the selection of institutions to be approached and when they will be approached, when commitments will be accepted, which institutions will participate, the allocation of the commitments among the Lenders and the amount and distribution of fees among the Lenders. If requested by the Lead Arrangers, you agree to assist in our preparation of a version of each Confidential Information Memorandum or other Information Material (a “Public Version”) consisting exclusively of information with respect to you and your affiliates and the Merger (and, in the case of information with respect to the Other MA Parties, solely to the extent permitted under the Merger Agreement, to use commercially reasonable efforts to provide a version of such information) that is either publicly available or not material with respect to you and your affiliates, the Other MA Parties and their affiliates or any of your or their respective securities or the Merger for purposes of United States federal securities laws (such information, “Non-MNPI”). Such Public Versions, together with any other information prepared by you or the Other MA Parties or your or their affiliates or representatives and conspicuously marked “Public” (collectively, the “Public Information”) on the first page of any such information, may be distributed by us to prospective Lenders who have advised us that they wish to receive only Non-MNPI (“Public Side Lenders”). You further acknowledge and agree that prior tounless you promptly notify us otherwise (provided that you shall have been given a reasonable opportunity to review such documents and comply with the U.S. Securities Exchange Commission requirements), or promptly after(a) administrative materials for prospective Lenders such as lender meeting invitations and funding and closing memoranda, (b) term sheets and notifications of changes to the announcement Bridge Facility’s terms and (c) other materials intended for prospective Lenders after the initial distribution of the Acquisition Information Materials, including drafts and final versions of definitive documents with respect to the Bridge Facility shall, in each case, constitute Public Information; provided that all other information that is not specifically identified as “PUBLIC” (including any Projections (as defined herein)) shall be treated as being suitable only for posting to private Lenders. In connection with our distribution to prospective Lenders of any Confidential Information Memorandum and, upon our request, any other Information Materials, you will advise each execute and deliver to us a customary authorization letter authorizing such distribution and, in the case of any Public Version thereof or other Public Information, representing that it only contains Non-MNPI. Each Confidential Information Memorandum will be accompanied by a disclaimer exculpating you and us with respect to any use thereof and of any related Information Materials by the recipients thereof. Notwithstanding anything to the contrary contained in this Commitment Letter or any other agreement or undertaking concerning the Bridge Facility, but without limiting your obligations to assist with syndication pursuant to this ▇▇▇▇▇’▇▇ Investors Service▇, Inc. (“▇▇▇▇▇’▇”), Standard & Poor’s Ratings Group, a division of McGraw Hill Financial, Inc. (“S&P”), and Fitch IBCA, Inc. (“Fitch”) ▇ of the Transactionsforegoing obligations under the provisions of this Section 3 nor the commencement, including the nature conduct or completion of the syndication contemplated financing therefor. You also agree thatby this Section 3 is a condition to the commitments, until the Syndication End Date, you and your subsidiaries will not issue, sell, offer, place or arrange, or engage in any discussions with respect to any obligations of the foregoing, any debt securities Initial Lenders hereunder or commercial bank or other credit facilities the funding of the Guarantor, the Borrower or their respective subsidiaries, other than (i) the Bridge Loan Facility, (ii) any New Bank Facility, (iii) the New Notes in an aggregate principal amount of up to $1,000,000,000, (iv) indebtedness under the existing commitments available under the Existing Credit Agreement, (v) working capital and overdraft facilities provided to the Borrower and its subsidiaries in the ordinary course of business and (vi) commercial paper financings in the ordinary course of business, without the prior written consent of the Arranger.
Appears in 1 contract
Sources: Merger Agreement
Syndication. All aspects The Arranger shall commence syndication of the syndication Facilities to prospective Lenders (as such term is defined in each of any New Bank Facility, including, without limitation, timing, potential syndicate members to be approached (which shall be identified by the Arranger subject to your approval right as set forth below), titles, initial Exhibit A and final allocations and division of fees, shall be determined by the Arranger in consultation with you; provided that each potential syndicate member to be approached must be approved by you (such approval not to be unreasonably withheld, delayed or conditionedB) (it being agreed that each person that is currently a “Lender”, or hereafter becomes a “Lender” with your consent, under the Existing Credit Agreement is hereby approved by you). Citi reserves the right, prior to or after promptly upon the execution of definitive documentation for this Commitment Letter and, in connection with its syndication of the 364-Day Facility (but Facilities, the Arranger will select the Lenders after consultation with you provided that we agree not before (i) to syndicate the public announcement commitment under the Facilities or any portion thereof to certain banks, financial institutions and other institutional, investors and funds that have been specified in writing to the Commitment Party by you at any time prior to the date of delivery hereof (or, if after such date but prior to the Acquisition and (ii) commencement of general syndication, that are reasonably acceptable to the receipt of customary commitment advices from Lenders other than Citi for at least US$700,000,000 of the principal amount of the 364-Day FacilityCommitment Party), to syndicate all or a portion of its commitment hereunder to one or more Lenders pursuant to a syndication to be managed exclusively by the Arranger. The Arranger intends will lead the syndication, including determining the timing of all offers to commence its syndication efforts with respect prospective Lenders, any title of agent or similar designations or roles awarded to any Lender and the acceptance of commitments, the amounts offered and the compensation provided to each Lender from the amounts to be paid to the 364-Day Facility promptly upon your execution and delivery Arranger pursuant to us the terms of this Commitment Letter and the Fee Letter, and will commence in consultation with you determine the syndication final commitment allocations and notify you of any other New Bank Facility as such time as shall be mutually determined by you and by the Arrangerdeterminations. Until the closing under the definitive documentation for any New Bank Facility (such date, the “Syndication End Date” with respect to such New Bank Facility), you You agree to actively assist the Arranger in completing a syndication of such New Bank Facility that is reasonably satisfactory to us, including, without limitation, by promptly preparing and providing the Arranger with such information with respect to the Guarantor and its subsidiaries, in each case including financial information, as the Arranger may reasonably deem necessary to arrange and complete a successful syndication of any New Bank Facility. Such assistance shall include, (a) your using your use all commercially reasonable efforts to ensure that any the Arranger’s syndication efforts benefit materially from your the existing lending and investment banking relationships, (b) direct contact between senior management, representatives and advisors relationships of you, on the one handBorrower, the Acquired Business and the proposed Lenders your and rating agencies identified by the Arranger, on the other hand, at times their respective subsidiaries. To ensure an orderly and places reasonably requested by the Arranger and consented to by the Borrower (such consent not to be unreasonably withheld, delayed or conditioned), (c) assistance by you in the prompt preparation of a Confidential Information Memorandum for any New Bank Facility and other marketing materials and information reasonably deemed necessary by the Arranger to complete a successful syndication of such New Bank Facility for delivery to potential syndicate members and participantsthe Facilities, in each case in form and substance customary for transactions of this type and otherwise reasonably satisfactory to the Arranger, including, without limitation, estimates, forecasts, projections and other forward-looking financial information prepared by the Guarantor regarding the future consolidated performance of the Guarantor and its subsidiaries (including projections for the third and fourth quarters of the fiscal year 2014 and for the fiscal years 2015 and 2016 that include the Acquired Company and its subsidiaries in the form of such projections delivered to and approved by the Arranger on or prior to the date hereof) (collectively, the “Projections”), and (d) the hosting, with the Arranger, of one or more meetings or conference calls with prospective Lenders at the request of the Arranger. You further agree that prior to, or promptly after, the announcement of the Acquisition you will advise each of ▇▇▇▇▇’▇ Investors Service, Inc. (“▇▇▇▇▇’▇”), Standard & Poor’s Ratings Group, a division of McGraw Hill Financial, Inc. (“S&P”), and Fitch IBCA, Inc. (“Fitch”) of the Transactions, including the nature of the contemplated financing therefor. You also agree that, until the date (the “Syndication End Termination Date”) which is the earliest of (a) the termination by the Arranger of syndication of the Facilities, (b) 60 days following the Closing Date and (c) the “successful syndication” of the Facilities (as defined in the Fee Letter), you will not, and your subsidiaries agree to use commercially reasonable efforts to ensure that the Acquired Business will not not, syndicate or issue, sellattempt to syndicate or issue, offer, place announce or arrangeauthorize the announcement of the syndication or issuance of, or engage in any discussions with respect to any of concerning the foregoingsyndication or issuance of, any debt securities facility or commercial bank or other credit facilities any debt security of the Guarantoryou, the Acquired Business or the Borrower or any of your or their respective subsidiaries, other than including any renewal or refinancing of any existing debt facility or debt security (i) the Bridge Loan Facility, (ii) any New Bank Facility, (iii) the New Notes in an aggregate principal amount of up to $1,000,000,000, (iv) indebtedness under the existing commitments available under including the Existing Credit Agreement, (v) working capital and overdraft facilities provided to the Borrower and its subsidiaries in the ordinary course of business and (vi) commercial paper financings in the ordinary course of business, each case without the prior written consent of the Arranger.Arranger (other than the Facilities, indebtedness permitted pursuant to the Acquisition Agreement, and purchase money indebtedness and capitalized lease obligations incurred in the ordinary course of business). April 16, 2014
Appears in 1 contract
Syndication. All aspects The Lead Arranger intends to syndicate part of the Initial Lenders’ Commitments and/or Loans under the Credit Agreement to one or more financial institutions and/or lenders which are Eligible Transferees (collectively, the “Lenders”), which syndication of any New Bank Facility, including, without limitation, timing, potential syndicate members to be approached (which shall be identified managed by the Lead Arranger in consultation with you and shall be subject to the terms hereof; provided, however, that, notwithstanding anything else to the contrary contained herein, (a) until the date that is 60 days after the date hereof (the “Initial Syndication Period”), the selection of Lenders and any roles awarded and allocations by the Lead Arranger shall be in accordance with the syndication strategy agreed to between you and the Lead Arranger prior to the date hereof (the “Syndication Strategy”) or otherwise subject to your approval; provided, that such approval right shall not be required with respect to the selection of any Lender that is a party to the Revolving Credit Facility, and (b) following the Initial Syndication Period, if and for so long as set forth a Successful Syndication (as defined below)) has not been achieved, titles, initial and final allocations and division the selection of fees, Lenders by the Lead Arranger shall be determined by the Arranger in consultation with you; provided provided, further, that each potential syndicate member Lenders selected by the Lead Arranger pursuant to clause (a) or (b) above shall be approached must be approved limited (unless set forth in the Syndication Strategy or otherwise consented to by you (such approval not you) to be unreasonably withheld, delayed commercial and investment banks incorporated or conditioned) (it being agreed that each person that is currently a “Lender”, or hereafter becomes a “Lender” with your consent, organized under the Existing laws of one of the applicable jurisdictions set forth in the Syndication Strategy and whose senior, unsecured, long-term indebtedness has an “investment grade” rating by S&P and ▇▇▇▇▇’▇ (each as defined below) upon first becoming party to the Credit Agreement is hereby approved by you). Citi reserves the right, prior to or after the execution of definitive documentation for the 364-Day Facility (but not before (i) the public announcement by you of the Acquisition and (ii) the receipt of customary commitment advices from Lenders other than Citi for at least US$700,000,000 of the principal amount of the 364-Day Facility), to syndicate all or a portion of its commitment hereunder to one or more Lenders pursuant to a syndication to be managed exclusively by the Arranger. The Arranger intends to commence its syndication efforts with respect to the 364-Day Facility promptly upon your execution an Assignment and delivery to us of this Commitment Letter, and will commence the syndication of any other New Bank Facility as such time as shall be mutually determined by you and by the ArrangerAcceptance. Until the closing under date that is the definitive documentation for any New Bank Facility earlier of (such date, a) a Successful Syndication and (b) 60 days after the “Syndication End Closing Date” with respect to such New Bank Facility), you agree to use your commercially reasonable efforts to actively assist the Lead Arranger in completing a syndication of such New Bank Facility that is reasonably satisfactory to us, including, without limitation, by promptly preparing the Lead Arranger and providing the Arranger with such information with respect to the Guarantor and its subsidiaries, in each case including financial information, as the Arranger may reasonably deem necessary to arrange and complete a successful syndication of any New Bank Facilityyou. Such assistance shall include, without limitation, (a) your using your commercially reasonable efforts to ensure that any the Lead Arranger’s syndication efforts benefit materially from your existing lending and investment banking relationships, (b) direct contact between appropriate members of your senior management, representatives management and advisors of youadvisors, on the one hand, and the proposed Lenders and rating agencies identified by the ArrangerLenders, on the other hand, at such times and places reasonably requested by the Arranger and consented to by the Borrower (such consent not to be unreasonably withheld, delayed or conditioned)during normal business hours as are mutually agreed, (c) assistance by you your using commercially reasonable efforts to assist the Lead Arranger in the prompt preparation of a confidential information memorandum (a “Confidential Information Memorandum for any New Bank Facility Memorandum”) and other customary marketing materials and (other than materials the disclosure of which would violate any law, rule or regulation or any confidentiality obligation or waive attorney-client privilege; it being understood that if any such information reasonably deemed necessary by is withheld in reliance on this parenthetical in respect of confidentiality or privilege, you shall advise the Lead Arranger to complete a successful syndication of such New Bank Facility for delivery fact and shall, following a reasonable request from the Lead Arranger, use commercially reasonable efforts to potential syndicate members furnish the relevant information by alternative means that would not violate the relevant obligation of confidentiality or waive the relevant privilege, including by requesting consent from the applicable contractual counterparty to disclose any information) to be used in connection with the syndication by providing information and participantsother customary materials reasonably requested in connection therewith, in each case in form (d) your promptly executing one or more Assignments and substance customary for transactions of this type and otherwise reasonably satisfactory Acceptances with respect to the Arranger, including, without limitation, estimates, forecasts, projections and other forward-looking financial information prepared by syndicated Commitments and/or Loans with Lenders selected in accordance with the Guarantor regarding the future consolidated performance of the Guarantor and its subsidiaries (including projections for the third and fourth quarters of the fiscal year 2014 and for the fiscal years 2015 and 2016 that include the Acquired Company and its subsidiaries in the form of such projections delivered to and approved by the Arranger on or prior to the date hereof) (collectively, the “Projections”)immediately preceding paragraph, and (de) the hosting, with the Lead Arranger, of one or more meetings or conference calls with prospective Lenders Lenders, at reasonable times and locations (which may be virtual) to be mutually agreed upon, as deemed reasonably necessary by the request Lead Arranger. Until the date that is the earlier of (a) a Successful Syndication and (b) 60 days after the Closing Date, you agree that, without the consent of the Lead Arranger. You further agree that prior to, there shall be no competing offering, placement or promptly after, the announcement arrangement of any commercial bank or other credit facilities by or on behalf of the Borrower or any of its subsidiaries (other than (i) the Bridge Facility, (ii) any term loan facility the proceeds of which shall be applied to finance the Acquisition or refinance the Bridge Facility, (iii) ordinary course letter of credit facilities, overdraft protection, short term working capital facilities, ordinary course foreign credit facilities, factoring arrangements, capital leases, issuances of commercial paper, financial leases, hedging and cash management and purchase money and equipment financings and (iv) any amendment, refinancing or renewal of the Existing Credit Agreements (provided that (x) such amendment, refinancing or renewal thereof shall be in coordination with the Lead Arranger and (y) the aggregate commitments thereunder shall not be increased by more than $500,000,000)) that would reasonably be expected to materially impair the syndication of the Bridge Facility. In addition, you will advise agree to use commercially reasonable efforts to obtain promptly updated ratings giving effect to the Transactions from each of ▇▇▇▇▇’▇ Investors Service, Inc. (“▇▇▇▇▇’▇Moody’s”), Standard & Poor’s Ratings GroupS&P Global Ratings, a division of McGraw Hill Financial, S&P Global Inc. (“S&P”), and Fitch IBCA, Ratings Inc. (“Fitch”) of the Transactions, including the nature of the contemplated financing therefor. You also agree that, until the Syndication End Date, you and your subsidiaries will not issue, sell, offer, place or arrange, or engage in any discussions with respect to any the senior unsecured debt of the Borrower. The Lead Arranger will manage all aspects of the syndication in consultation with you, including, without limitation, decisions as to the selection of institutions to be approached and when they will be approached, when their commitments will be accepted, which institutions will participate and the allocations of the Commitments and/or Loans among the Lenders and the amount and distribution of fees among the Lenders, subject to the limitations set forth above. Notwithstanding the foregoing, the Lead Arranger and the Initial Lenders will not syndicate or otherwise assign any debt securities portion of the Commitments or commercial bank Loans to any person that is not an Eligible Transferee. In acting in its capacity as Lead Arranger, the Lead Arranger will have no responsibility other than to arrange the syndication as set forth herein and shall in no event be subject to any fiduciary or other credit facilities of implied duties. To assist the GuarantorLead Arranger in its syndication efforts, the Borrower or their respective subsidiaries, other than (i) the Bridge Loan Facility, (ii) any New Bank Facility, (iii) the New Notes in an aggregate principal amount of up you agree promptly to $1,000,000,000, (iv) indebtedness under the existing commitments available under the Existing Credit Agreement, (v) working capital prepare and overdraft facilities provided provide to us all information with respect to the Borrower and its subsidiaries and the Transactions, including, without limitation, all financial information and projections (the “Projections”), as the Lead Arranger may reasonably request in connection with the syndication of the Bridge Facility. You agree that, subject to the confidentiality obligations contained herein and in the ordinary course Credit Agreement, the Lead Arranger may make available any Information (as defined below) and Projections (collectively, the “Company Materials”) to potential Lenders by posting the Company Materials on IntraLinks, SyndTrak, DebtDomain or another similar electronic system (the “Platform”) on a confidential basis in accordance with the Lead Arranger’s standard syndication practices (including hard copy and via electronic transmissions). You further agree to assist, at the request of business the Lead Arranger, in the preparation of a version of a Confidential Information Memorandum and other marketing materials and presentations to be used in connection with the syndication of the Bridge Facility, consisting exclusively of information or documentation that is either (a) publicly available (or could be derived from publicly available information) or (b) not material with respect to you, the Acquired Business or your subsidiaries or any of their respective securities for purposes of United States federal and state securities laws (all such information and documentation being “Public Lender Information”). Any information and documentation that is not Public Lender Information is referred to herein as “Private Lender Information.” You further agree, at our request, to identify any document to be disseminated by the Lead Arranger to any Lender or potential Lender in connection with the syndication of the Bridge Facility as containing solely Public Lender Information by clearly and conspicuously marking the same as “PUBLIC” (it being understood that you shall not otherwise be under any obligation to ▇▇▇▇ any document as “PUBLIC”). You acknowledge and agree that, after having been given a reasonable opportunity to review such documents, the following documents will contain solely Public Lender Information unless you advise the Lead Arranger that such materials contain Private Lender Information: (i) the Credit Agreement and related definitive documentation with respect to the Bridge Facility and any amendments thereto; (ii) administrative materials prepared by the Arranger for potential Lenders (e.g. a lender meeting invitation, allocations and/or funding and closing memoranda), in each case to the extent approved by you prior to distribution; and (viiii) commercial paper financings notification of changes in the ordinary course of business, without the prior written consent terms of the ArrangerBridge Facility. It is understood that a customary authorization letter (a) authorizing the distribution of the Company Materials to prospective Lenders, (b) representing that any public-side materials only contain Public Lender Information, (c) exculpating you, the Lead Arranger and your and their respective subsidiaries and affiliates from all liability related to the use or misuse of the Company Materials and (d) containing a customary representation as to the accuracy thereof consistent with the representation in Section 3 below (but without (x) any knowledge qualifications or (y) giving effect to any later-delivered supplements) will be included in the Company Materials.
Appears in 1 contract
Sources: Bridge Credit Agreement
Syndication. All aspects The Arrangers intend, and reserve the right, to syndicate the Senior Facilities to the Lenders promptly following the date hereof, and you acknowledge and agree that the commencement of syndication shall occur in the discretion of the syndication Arrangers. The Arrangers will select the Lenders after consultation with you. The Arrangers will lead the syndication, including determining the timing of all offers to potential Lenders, any New Bank Facilitytitle of agent or similar designations or roles awarded to any Lender and the acceptance of commitments, including, without limitation, timing, potential syndicate members the amounts offered and the compensation provided to each Lender from the amounts to be approached (which shall be identified by paid to the Arranger subject Arrangers pursuant to your approval right as set forth below)the terms of this Commitment Letter and the Fee Letter. The Arrangers will, titles, initial and final allocations and division of fees, shall be determined by the Arranger in consultation with you; provided that each potential syndicate member to be approached must be approved by you (such approval not to be unreasonably withheld, delayed or conditioned) (it being agreed that each person that is currently a “Lender”, or hereafter becomes a “Lender” with your consent, under determine the Existing Credit Agreement is hereby approved by you). Citi reserves the right, prior to or after the execution of definitive documentation for the 364-Day Facility (but not before (i) the public announcement by you of the Acquisition and (ii) the receipt of customary final commitment advices from Lenders other than Citi for at least US$700,000,000 of the principal amount of the 364-Day Facility), to syndicate all or a portion of its commitment hereunder to one or more Lenders pursuant to a syndication to be managed exclusively by the Arranger. The Arranger intends to commence its syndication efforts with respect to the 364-Day Facility promptly upon your execution and delivery to us of this Commitment Letter, allocations and will commence notify the syndication Company of any other New Bank Facility as such time as shall be mutually determined by you and by the Arrangerdeterminations. Until the closing under the definitive documentation for any New Bank Facility (such date, the “Syndication End Date” with respect to such New Bank Facility), you You agree to actively assist the Arranger in completing a syndication of such New Bank Facility that is reasonably satisfactory to us, including, without limitation, by promptly preparing and providing the Arranger with such information with respect to the Guarantor and its subsidiaries, in each case including financial information, as the Arranger may reasonably deem necessary to arrange and complete a successful syndication of any New Bank Facility. Such assistance shall include, (a) your using your use commercially reasonable efforts to ensure that any the Arrangers’ syndication efforts benefit materially from your the existing lending relationships of the Company and investment banking relationshipsthe Merger Party and their respective subsidiaries. To facilitate an orderly and successful syndication of the Senior Facilities, you agree that, until the earliest of (x) the termination of the syndication as determined by the Arrangers, (y) the consummation of a Successful Syndication (as defined in the Fee Letter) and (z) 90 days after the Closing Date, neither the Company nor the Merger Party (including, in each case, their respective subsidiaries) will syndicate or issue, attempt to syndicate or issue, announce or authorize the announcement of the syndication or issuance of, any debt facility or any debt or equity security of the Merger Party or the Company or any of their respective subsidiaries or affiliates (other than (a) the Senior Facilities and other indebtedness contemplated hereby to remain outstanding after the Closing Date and (b) direct contact between senior management, representatives and advisors the issuance of you, (i) common equity of the Merger Party to shareholders of the Company on the one handClosing Date, and (ii) the proposed Lenders and rating agencies identified by the Arranger, on the other hand, at times and places reasonably requested by the Arranger and consented to by the Borrower Securities (such consent not to be unreasonably withheld, delayed or conditionedif any), (ciii) assistance equity issued in connection with the conversion of any convertible debt securities of the Company or the Merger Party, hedging arrangements or warrants and (iv) equity pursuant to employee stock plans of the Company and the Merger Party and other similar arrangements to be mutually agreed upon by you and the Arrangers) without the prior written consent of the Arrangers. You agree to cooperate with the Commitment Parties, in connection with (i) the prompt preparation of a one or more information packages regarding the business, operations and financial projections of the Company and the Merger Party (collectively, the “Confidential Information Memorandum for any New Bank Facility and other marketing materials and information reasonably deemed necessary by the Arranger to complete a successful syndication of such New Bank Facility for delivery to potential syndicate members and participants, in each case in form and substance customary for transactions of this type and otherwise reasonably satisfactory to the Arranger, Memorandum”) including, without limitation, estimates, forecasts, projections and other forward-looking financial all information relating to the transactions contemplated hereunder prepared by the Guarantor regarding the future consolidated performance or on behalf of the Guarantor and its subsidiaries (including projections for Company or the third and fourth quarters Merger Party deemed reasonably necessary by the Commitment Parties to complete the syndication of the fiscal year 2014 and for the fiscal years 2015 and 2016 that include the Acquired Company and its subsidiaries in the form of such projections delivered Senior Facilities including, without limitation, using commercially reasonable efforts to and approved by the Arranger on or prior to the date hereofobtain (a) (collectively, the “Projections”), and (d) the hosting, with the Arranger, of one or more meetings or conference calls with prospective Lenders at the request of the Arranger. You further agree that prior to, or promptly after, the announcement of the Acquisition you will advise each of a public corporate family rating from ▇▇▇▇▇’▇ Investors ServiceInvestor Services, Inc. (“▇▇▇▇▇’▇Moody’s”)) for the Company, (b) a public corporate credit rating from Standard & Poor’s Ratings Group, a division of The McGraw Hill Financial, Inc. Corporation (“S&P”)) for the Company and (c) a public credit rating for the Senior Facilities from each of Moody’s and S&P, and Fitch IBCA(ii) the presentation of one or more information packages reasonably acceptable in format and content to the Commitment Parties (collectively, Inc. (the “FitchLender Presentation”) in meetings and other communications with prospective Lenders or agents in connection with the syndication of the TransactionsSenior Facilities (including, including the nature without limitation, direct contact between senior management and representatives, with appropriate seniority and expertise, of the contemplated financing thereforCompany and the Merger Party with prospective Lenders and participation of such persons in meetings). You also further agree that, until that the Syndication End Date, you commitments and agreements of the Commitment Parties hereunder are conditioned upon your subsidiaries satisfaction of the requirements of the foregoing provisions of this paragraph by a date sufficient to afford the Arrangers a period of at least 30 consecutive days following the launch of the general syndication of the Senior Facilities to syndicate the Senior Facilities prior to the Closing Date (as defined in Annex B); provided that such period will not issueinclude any day from and including August 23, sell2010 through September 6, offer2010 or December 18, place 2010 through January 3, 2011. You will be solely responsible for the contents of any such Confidential Information Memorandum and Lender Presentation (other than, in each case, any information contained therein that has been provided for inclusion therein by the Commitment Parties solely to the extent such information relates to the Commitment Parties) and all other information, documentation or arrangematerials delivered to the Arrangers in connection therewith (collectively, the “Information”) and you acknowledge that the Commitment Parties will be using and relying upon the Information without independent verification thereof. You agree that Information regarding the Senior Facilities and Information provided by the Company and the Merger Party or engage their respective representatives to the Arrangers in connection with the Senior Facilities (including, without limitation, draft and execution versions of the Loan Documents, the Confidential Information Memorandum, the Lender Presentation, publicly filed financial statements, and draft or final offering materials relating to contemporaneous securities issuances by the Company or the Merger Party) may be disseminated to potential Lenders and other persons through one or more internet sites (including an IntraLinks, SyndTrak or other electronic workspace (the “Platform”)) created for purposes of syndicating the Senior Facilities or otherwise, in accordance with the Arrangers’ standard syndication practices, and you acknowledge that neither the Arrangers nor any discussions of their affiliates will be responsible or liable to you or any other person or entity for damages arising from the use by others of any Information or other materials obtained on the Platform, except, in the case of damages to you but not to any other person, to the extent such damages are found by a final judgment of a court of competent jurisdiction to arise from the gross negligence or willful misconduct of any Arranger or any of its affiliates or any of their respective directors, employees, advisors or agents. You acknowledge that certain of the Lenders may be “public side” Lenders (i.e. Lenders that do not wish to receive material non-public information with respect to any of the foregoing, any debt securities or commercial bank or other credit facilities of the GuarantorCompany, the Borrower Merger Party or their respective subsidiariesaffiliates or any of its or their respective securities) (each, a “Public Lender”). At the request of the Arrangers, you agree to prepare an additional version of the Confidential Information Memorandum and the Lender Presentation to be used by Public Lenders that does not contain material non-public information concerning the Company, the Merger Party or their respective affiliates or securities. It is understood that in connection with your assistance described above, at the request of the Arrangers, you will provide, and cause all other than (i) applicable persons to provide, authorization letters to the Bridge Loan FacilityArrangers authorizing the distribution of the Information to prospective Lenders, (ii) any New Bank Facilitycontaining a representation to the Arrangers that the public-side version does not include material non-public information about the Company, (iii) the New Notes in an aggregate principal amount of up to $1,000,000,000Merger Party or their respective affiliates or its or their respective securities. In addition, (iv) indebtedness under the existing commitments available under the Existing Credit Agreement, (v) working capital and overdraft facilities you will clearly designate as such all Information provided to the Borrower Commitment Parties by or on behalf of the Company or the Merger Party which is suitable to make available to Public Lenders. You acknowledge and its subsidiaries agree that the following documents may be distributed to Public Lenders, unless you advise the Arrangers in writing (including by email) within a reasonable time prior to their intended distributions that such material should only be distributed to prospective Lenders that are not Public Lenders: (a) drafts and final versions of the Loan Documents; (b) administrative materials prepared by the Arrangers for prospective Lenders (such as a lender meeting invitation, allocations and funding and closing memoranda); and (c) term sheets and notification of changes in the ordinary course of business and (vi) commercial paper financings in the ordinary course of business, without the prior written consent terms of the ArrangerSenior Facilities.
Appears in 1 contract
Sources: Merger Agreement (Valeant Pharmaceuticals International)
Syndication. All aspects of the syndication of any New Bank Facility, including, without limitation, timing, potential syndicate members to be approached (which shall be identified by the 5.1 The Mandated Lead Arranger subject to your approval right as set forth below), titles, initial and final allocations and division of fees, shall be determined by the Arranger in consultation with you; provided that each potential syndicate member to be approached must be approved by you (such approval not to be unreasonably withheld, delayed or conditioned) (it being agreed that each person that is currently a “Lender”, or hereafter becomes a “Lender” with your consent, under the Existing Credit Agreement is hereby approved by you). Citi reserves the right, prior to or after the execution of definitive documentation for the 364-Day Facility (but not before (i) the public announcement by you of the Acquisition and (ii) the receipt of customary commitment advices from Lenders other than Citi for right at least US$700,000,000 of the principal amount of the 364-Day Facility), any time to syndicate all or a portion of its the commitment hereunder of the Underwriter to one or more Lenders other financial institutions in consultation with the Borrower; provided that the commitment of the Underwriter is not subject to a “Successful Syndication” or any other syndication of the Facility; and provided, further, that notwithstanding the Mandated Lead Arranger’s right to syndicate the Facility and receive commitments with respect thereto, it is understood that any syndication of, or receipt of commitments in respect of, all or any portion of the Underwriter’s commitment hereunder prior to the funding of the Facility shall not reduce the Underwriter’s commitment hereunder except to the extent the Borrower has entered into a direct commitment with a lender pursuant to a syndication to be managed exclusively by the Arrangersuch syndication. The Mandated Lead Arranger intends shall manage all aspects of syndication of the Facility in consultation with the Borrower, including timing, the selection of potential Lenders, the acceptance and allocation of commitments and the amount and distribution of fees to commence its syndication efforts with respect to Lenders.
5.2 Until the 364-Day Facility promptly upon your execution and delivery to us end of this Commitment Letterthe Syndication Period, the Borrower shall, and will commence shall ensure that its subsidiaries shall (the syndication of any other New Bank Facility as such time as shall be mutually determined by you and by the Arranger. Until the closing under the definitive documentation for any New Bank Facility (such dateBorrower, the “Syndication End Date” together with respect to such New Bank Facility), you agree to actively assist the Arranger in completing a syndication of such New Bank Facility that is reasonably satisfactory to us, including, without limitation, by promptly preparing and providing the Arranger with such information with respect to the Guarantor and its subsidiaries, in each case including financial information, as the Arranger may reasonably deem necessary to arrange and complete a successful syndication of any New Bank Facility. Such assistance subsidiaries which shall include, (a) your using your after consummation of the Acquisition, the Target Group, the Borrower Group), and prior to consummation of the Acquisition, shall use its commercially reasonable efforts to ensure that any syndication efforts benefit materially from your existing lending the Target and investment banking relationshipsits subsidiaries (the Target Group) shall, assist the Mandated Lead Arranger in effecting the timely, orderly and Successful Syndication (as defined in the Fee Letter) of the Facility. This assistance shall include:
(a) providing all commercially reasonable assistance to the Mandated Lead Arranger in the preparation of a customary information package (the Information Package);
(b) direct contact between using their commercially reasonable efforts to ensure that the syndication benefits from their existing lending relationships;
(c) complying with all reasonable requests from the Mandated Lead Arranger for information and access to the Borrower Group’s operating sites and, after completion of the Acquisition, those of the Target Group; and
(d) making available the senior managementmanagement of the Borrower Group and, representatives and advisors after completion of youthe Acquisition, on the one hand, and senior management of the Target Group for the purpose of making presentations to proposed new Lenders and rating agencies identified by the Arranger, on the other hand, at such times and places as the Mandated Lead Arranger may reasonably requested by request.
5.3 The Information Package will, in line with market practice and with the assistance of the Mandated Lead Arranger, be provided to potential new Lenders and contain relevant information regarding the business, assets, financial condition and operations of the Borrower Group and the Target Group, including financial projections. The Borrower represents to the Mandated Lead Arranger and consented the Lenders that, (a) to the best of its knowledge, all information other than the projections and information of a general economic or general industry nature included in the Information Package (the Information), taken as a whole, is or will be, when furnished, correct in all material respects and does not or will not, when furnished, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein not materially misleading in light of the circumstances under which such statements are made (after giving effect to all supplements thereto made prior to the Closing Date) and (b) the projections that have been or will be included in the Information Package have been, or will be, prepared in good faith based upon assumptions that are believed by the Borrower (such consent to be reasonable at the time so made available; it being understood that the projections are as to future events and are not to be unreasonably withheldviewed as facts and that actual results during the period or periods covered by any such projections may differ significantly from the projected results and such differences may be material. The Information Package will not be independently verified by the Mandated Lead Arranger.
5.4 The Borrower agrees, delayed or conditioned)at our request, (c) assistance by you to use commercially reasonable efforts to assist in the prompt preparation of a Confidential version of the Information Memorandum for any New Bank Facility Package and other marketing materials and presentations to be used in connection with the syndication of the Facility, consisting exclusively of information reasonably deemed necessary and documentation that is either:
(a) publicly available, or
(b) not material with respect to the Borrower, the Target or their respective subsidiaries or any of their respective securities for purposes of applicable securities law (all such information and documentation being Public Lender Information). Any information and documentation that is not Public Lender Information is referred to herein as Private Lender Information.
5.5 The Borrower further agrees that each document to be disseminated by the Mandated Lead Arranger to complete a successful syndication of such New Bank Facility for delivery to potential syndicate members and participants, any Lender in each case in form and substance customary for transactions of this type and otherwise reasonably satisfactory to the Arranger, including, without limitation, estimates, forecasts, projections and other forward-looking financial information prepared by the Guarantor regarding the future consolidated performance of the Guarantor and its subsidiaries (including projections for the third and fourth quarters of the fiscal year 2014 and for the fiscal years 2015 and 2016 that include the Acquired Company and its subsidiaries in the form of such projections delivered to and approved by the Arranger on or prior to the date hereof) (collectively, the “Projections”), and (d) the hosting, connection with the ArrangerFacility will, of one or more meetings or conference calls with prospective Lenders at the request of the Mandated Lead Arranger. You further agree that prior to, or promptly after, the announcement of the Acquisition you will advise each of ▇▇▇▇▇’▇ Investors Service, Inc. (“▇▇▇▇▇’▇”), Standard & Poor’s Ratings Group, a division of McGraw Hill Financial, Inc. (“S&P”), and Fitch IBCA, Inc. (“Fitch”) of the Transactions, including the nature of the contemplated financing therefor. You also agree that, until the Syndication End Date, you and your subsidiaries will not issue, sell, offer, place or arrange, or engage in any discussions with respect to any of the foregoing, any debt securities or commercial bank or other credit facilities of the Guarantor, be identified by the Borrower or their respective subsidiaries, other than as either:
(ia) the Bridge Loan Facility, containing Private Lender Information; or
(iib) any New Bank Facility, (iii) the New Notes in an aggregate principal amount of up to $1,000,000,000, (iv) indebtedness under the existing commitments available under the Existing Credit Agreement, (v) working capital and overdraft facilities provided to the Borrower and its subsidiaries in the ordinary course of business and (vi) commercial paper financings in the ordinary course of business, without the prior written consent of the Arrangercontaining solely Public Lender Information.
Appears in 1 contract
Syndication. All aspects The Lead Arrangers intend to commence syndication of the Facilities promptly after your acceptance of the terms of this Commitment Letter and the Fee Letters. Without limiting your obligations to assist with syndication efforts as set forth herein, it is understood that the Initial Lenders’ commitments hereunder are not conditioned upon the syndication of, or receipt of commitments or participations in respect of, the Facilities and in no event shall the commencement or successful completion of syndication of the Facilities constitute a condition to the availability of the Facilities on the Closing Date. You agree, prior to the Syndication Date (as hereinafter defined), to actively assist, and to use your commercially reasonable efforts to cause the Acquired Business and its subsidiaries to actively assist, the Lead Arrangers in achieving a syndication of each Facility that is reasonably satisfactory to the Lead Arrangers and you; provided that, notwithstanding each Lead Arranger’s right to syndicate the Facilities and receive commitments with respect thereto, it is agreed that (i) except in the case of an assignment to which you otherwise agree in writing, (A) no Initial Lender shall be relieved, released or novated from its obligations hereunder (including its obligation to fund the Facilities on the Closing Date) in connection with any syndication, assignment or participation of the Facilities, including its commitments in respect thereof, until after the initial funding of the Facilities has occurred; and (B) no assignment or novation shall become effective with respect to all or any portion of an Initial Lender’s commitments in respect of the Facilities until after the initial funding of the Facilities; and (ii) each Commitment Party shall retain exclusive control over all rights and obligations with respect to its commitments in respect of the Facilities, including all rights with respect to consents, modifications, supplements, waivers and amendments, until the Closing Date has occurred and the initial funding under the Facilities has been made. Notwithstanding anything to the contrary contained herein, any resales or assignments of the Facilities by any Lender (including any Initial Lender) on or following the Closing Date shall be governed by the provisions of the Facilities as set forth in the Summary of Terms. We agree not to syndicate our commitments to (i) competitors of the Companies specified to us by you in writing from time to time, (ii) any persons that are engaged as principals primarily in private equity, mezzanine financing or venture capital and certain banks, financial institutions, other institutional lenders and other entities, in each case that have been specified to us by you in writing on or prior to March 16, 2016 and (iii) as to any entity referenced in each case of clauses (i) and (ii) above (the “Primary Disqualified Institution”), any of such Primary Disqualified Institution’s known affiliates readily identifiable by name, but excluding any affiliate that is primarily engaged in, or that advises funds or other investment vehicles that are engaged in, making, purchasing, holding or otherwise investing in commercial loans, bonds and similar extensions of credit or securities in the ordinary course and with respect to which the Primary Disqualified Institution does not, directly or indirectly, possess the power to direct or cause the direction of the investment policies of such entity (clauses (i), (ii) and (iii) above collectively, the “Disqualified Institutions”) and that no Disqualified Institutions may become Lenders. Such assistance shall include (a) your providing, and using your commercially reasonable efforts to cause your advisors, the Acquired Business, its subsidiaries and its advisors to provide, the Lead Arrangers and the Lenders promptly upon request with all customary information reasonably deemed necessary by the Lead Arrangers to complete such syndication, including, but not limited to (x) information and evaluations prepared by you, the Acquired Business and your and its advisors, or on your or its behalf, relating to the Transaction (including the Projections (as hereinafter defined)) and (y) customary forecasts prepared by management of the Companies of balance sheets, income statements and cash flow statements for each fiscal quarter for the first twelve months following the Closing Date and for each year commencing with the first fiscal year following the Closing Date and for each of the succeeding seven fiscal years thereafter; (b) your assistance (including the use of commercially reasonable efforts to cause the Acquired Business to assist) in the preparation of a customary information memorandum with respect to each of the Facilities (each, an “Information Memorandum”) and other customary marketing materials to be used in connection with the syndication of each Facility (collectively with the Summary of Terms and any additional summary of terms prepared for distribution to Public Lenders (as hereinafter defined), the “Information Materials”); (c) using commercially reasonable efforts to ensure that the syndication efforts of the Lead Arrangers benefit from your existing lending relationships and, to the extent practical and appropriate, using commercially reasonable efforts to ensure that the syndication efforts of the Lead Arrangers benefit from the existing banking relationships of the Acquired Business and its subsidiaries; (d) using commercially reasonable efforts to obtain, upon our request, prior to the launch of primary syndication, monitored public corporate credit or family ratings (but no specific rating) for you after giving effect to the Transaction and ratings (but no specific rating) of the Facilities from ▇▇▇▇▇’▇ Investors Service, Inc. (“Moody’s”) and Standard & Poor’s, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (“S&P”) (collectively, the “Ratings”); (e) your ensuring, and with respect to the Acquired Business, using your commercially reasonable efforts to ensure, that none of the Companies shall syndicate or issue, attempt to syndicate or issue, announce or authorize the announcement of the syndication or issuance of any New Bank Facility, including, without limitation, timing, potential syndicate members to be approached debt of the Companies (which shall be identified by other than the Arranger subject to your approval right as set forth belowFacilities), titlesincluding any renewals or refinancings of any existing debt, initial that, in the reasonable judgment of the Lead Arrangers, could reasonably be expected to materially and final allocations and division adversely affect the syndication of fees, shall be determined by the Arranger in consultation with you; provided that each potential syndicate member to be approached must be approved by you Facilities without the prior written consent of the Lead Arrangers (such approval consent not to be unreasonably withheld, delayed or conditioned) (it being understood and agreed that each person that is currently a “Lender”, or hereafter becomes a “Lender” with your consent, under the Existing Credit Agreement is hereby approved by you). Citi reserves following debt may be issued without the right, prior to or after written consent of the execution of definitive documentation for the 364-Day Facility (but not before Lead Arrangers: (i) the public announcement by you of the Acquisition capital leases and (ii) the receipt of customary commitment advices from Lenders other than Citi for at least US$700,000,000 of the principal amount of the 364-Day Facility), to syndicate all or a portion of its commitment hereunder to one or more Lenders pursuant to a syndication to be managed exclusively by the Arranger. The Arranger intends to commence its syndication efforts with respect to the 364-Day Facility promptly upon your execution purchase money and delivery to us of this Commitment Letter, and will commence the syndication of any other New Bank Facility as such time as shall be mutually determined by you and by the Arranger. Until the closing under the definitive documentation for any New Bank Facility (such date, the “Syndication End Date” with respect to such New Bank Facility), you agree to actively assist the Arranger in completing a syndication of such New Bank Facility that is reasonably satisfactory to us, including, without limitation, by promptly preparing and providing the Arranger with such information with respect to the Guarantor and its subsidiaries, in each case including financial information, as the Arranger may reasonably deem necessary to arrange and complete a successful syndication of any New Bank Facility. Such assistance shall include, (a) your using your commercially reasonable efforts to ensure that any syndication efforts benefit materially from your existing lending and investment banking relationships, (b) direct contact between senior management, representatives and advisors of you, on the one hand, and the proposed Lenders and rating agencies identified by the Arranger, on the other hand, at times and places reasonably requested by the Arranger and consented to by the Borrower (such consent not to be unreasonably withheld, delayed or conditioned), (c) assistance by you in the prompt preparation of a Confidential Information Memorandum for any New Bank Facility and other marketing materials and information reasonably deemed necessary by the Arranger to complete a successful syndication of such New Bank Facility for delivery to potential syndicate members and participants, in each case in form and substance customary for transactions of this type and otherwise reasonably satisfactory to the Arranger, including, without limitation, estimates, forecasts, projections and other forward-looking financial information prepared by the Guarantor regarding the future consolidated performance of the Guarantor and its subsidiaries (including projections for the third and fourth quarters of the fiscal year 2014 and for the fiscal years 2015 and 2016 that include the Acquired Company and its subsidiaries in the form of such projections delivered to and approved by the Arranger on or prior to the date hereof) (collectively, the “Projections”), and (d) the hosting, with the Arranger, of one or more meetings or conference calls with prospective Lenders at the request of the Arranger. You further agree that prior to, or promptly after, the announcement of the Acquisition you will advise each of ▇▇▇▇▇’▇ Investors Service, Inc. (“▇▇▇▇▇’▇”), Standard & Poor’s Ratings Group, a division of McGraw Hill Financial, Inc. (“S&P”), and Fitch IBCA, Inc. (“Fitch”) of the Transactions, including the nature of the contemplated equipment financing therefor. You also agree that, until the Syndication End Date, you and your subsidiaries will not issue, sell, offer, place or arrange, or engage in any discussions with respect to any of the foregoing, any debt securities or commercial bank or other credit facilities of the Guarantor, the Borrower or their respective subsidiaries, other than (i) the Bridge Loan Facility, (ii) any New Bank Facility, (iii) the New Notes in an aggregate principal amount of up to $1,000,000,000, (iv) indebtedness under the existing commitments available under the Existing Credit Agreement, (v) working capital and overdraft facilities provided to the Borrower and its subsidiaries in the ordinary course of business and (vi) commercial paper financings incurred in the ordinary course of business, without the prior written consent (ii) intercompany indebtedness and (iii) other indebtedness of the ArrangerAcquired Business permitted to be incurred or remain outstanding under the Acquisition Agreement); and (f) your otherwise assisting the Lead Arrangers in their syndication efforts, including by making your officers and advisors, and, to the extent practical and appropriate, using your commercially reasonable efforts to make the officers and advisors of the Acquired Business, available from time to time upon reasonable advance notice to attend and make presentations regarding the business and prospects of the Companies and the Transaction at one or more meetings of prospective Lenders. Notwithstanding anything to the contrary contained in this Commitment Letter or the Fee Letters or any other letter agreement or undertaking concerning the financing of the Transaction to the contrary, neither the obtaining of the Ratings referenced above nor the compliance with any of the other provisions set forth in clauses (a) through (f) above or any other provision of this paragraph shall constitute a condition to the commitments hereunder or the funding of the Facilities on the Closing Date. For the avoidance of doubt, the Companies will not be required to provide any information to the extent that the provision thereof would violate any attorney-client privilege, law, rule or regulation or any obligation of confidentiality binding on the Companies; provided that in the event that the Companies do not provide information in reliance on this sentence, the Companies shall provide notice to the Lead Arrangers that such information is being withheld and shall use their commercially reasonable efforts to communicate, to the extent feasible, the applicable information in a way that would not violate the applicable obligation or risk waiver of such privilege. It is understood and agreed that the Lead Arrangers will manage and control all aspects of the syndication of the Facilities in consultation with you and, as to the selection of Lenders, with your approval (such approval not to be unreasonably withheld or delayed), and, subject to the second paragraph in Section 1 above, any titles offered to prospective Lenders, when commitments will be accepted and the final allocations of the commitments among the Lenders. It is understood that no Lender participating in the Facilities will receive compensation from you in order to obtain its commitment, except on the terms contained herein and in the Summary of Terms. It is also understood and agreed that the amount and distribution of the fees among the Lenders will be at the sole and absolute discretion of the Lead Arrangers.
Appears in 1 contract
Sources: Commitment Letter (Coherent Inc)
Syndication. All aspects Subject to Section 9 of the syndication of any New Bank Facilitythis Commitment Letter, including, without limitation, timing, potential syndicate members to be approached (which shall be identified by the Arranger subject to your approval right as set forth below), titles, initial and final allocations and division of fees, shall be determined by the Arranger in consultation with you; provided that each potential syndicate member to be approached must be approved by you (such approval not to be unreasonably withheld, delayed or conditioned) (it being agreed that each person that is currently a “Lender”, or hereafter becomes a “Lender” with your consent, under the Existing Credit Agreement is hereby approved by you). Citi reserves we reserve the right, prior to or and/or after the execution of definitive documentation for the 364-Day Facility Facilities (but not before (i) the public announcement which will be drafted by you of the Acquisition and (ii) the receipt of customary commitment advices from Lenders other than Citi for at least US$700,000,000 of the principal amount of the 364-Day Facilityyour counsel), to syndicate all or a portion of its commitment hereunder to one or more Lenders pursuant to a syndication to be managed exclusively by the Arranger. The Arranger intends to commence its syndication efforts Initial Lenders’ commitments with respect to the 364-Day Facility Facilities to a group of banks, financial institutions and other institutional lenders (together with the Initial Lenders and the Additional Initial Lenders, the “Lenders”) identified by us in consultation with you and subject to your consent (such consent not to be unreasonably withheld or delayed). Notwithstanding anything to the contrary contained herein, any resales or assignments of the Facilities by any Lender (including the Initial Lenders) on or following the date of the initial borrowings under the Facilities shall be governed by the provisions of the Facilities as set forth in the Term Sheet. Each Lender further agrees not to syndicate any of the commitments with respect to the Facilities to certain financial institutions and other entities that have been specified by you in writing to the Lead Arrangers on or prior to the date hereof or competitors of Redwood and its subsidiaries each specified by you in writing to the Lead Arrangers on or prior to the date hereof (it being understood that additional bona fide competitors of Redwood and its subsidiaries may be designated in writing by you following the earlier to occur of a Successful Syndication (as defined in the Fee Letter) and 60 days after the date of the consummation of the Acquired Business Merger (the “Closing Date”)) (collectively, the “Disqualified Lenders”); provided that, for the avoidance of doubt, any such additional designation shall not apply retroactively to any prior assignment to any Lender permitted hereunder at the time of such assignment). We intend to commence syndication efforts promptly upon your the execution and delivery to us of this Commitment Letter, and will commence the syndication of any other New Bank Facility as such time as shall be mutually determined by you and by the Arranger. Until the closing under the definitive documentation for any New Bank Facility (such date, the “Syndication End Date” with respect to such New Bank Facility), you agree to actively assist the Arranger us in completing a syndication of such New Bank Facility that is reasonably satisfactory to usus and you until the earlier to occur of a Successful Syndication and 60 days after the Closing Date. During such period, including, without limitation, by promptly preparing and providing the Arranger with such information with respect to the Guarantor and its subsidiaries, in each case including financial information, as the Arranger may reasonably deem necessary to arrange and complete a successful syndication of any New Bank Facility. Such assistance shall include, include (a) your using your commercially reasonable efforts to ensure that any syndication efforts benefit materially from Sponsor’s and your existing lending and investment banking relationshipsrelationships and, to the extent practical and appropriate, the existing lending and investment banking relationships of the Target, (b) direct contact between appropriate members of senior management, certain representatives and certain non-legal advisors of youyou (and, on subject always to the one handextent expressly provided in the Merger Agreement, your using commercially reasonable efforts to cause direct contact between appropriate members of senior management, certain representatives and certain non-legal advisors of the Target) and the proposed Lenders and rating agencies identified by the ArrangerLenders, on the other hand, in all such cases at times and places reasonably requested by the Arranger and consented to by the Borrower (such consent not to be unreasonably withheld, delayed or conditioned)mutually agreed upon, (c) assistance by you and the Sponsor (and, subject always to the extent expressly provided in the prompt Merger Agreement, your using commercially reasonable efforts to cause the assistance by the Target) in the preparation of a customary confidential information memorandum (“Confidential Information Memorandum Memorandum”) for any New Bank Facility the Facilities and other customary marketing materials and information reasonably deemed necessary by to be used in connection with the Arranger to complete a successful syndication of such New Bank Facility the Facilities, (d) your using commercially reasonable efforts to obtain (which use of commercially reasonable efforts shall not require you to change the proposed terms of the Facilities), upon our request, prior to commencement of general syndication of the Facilities, (i) public ratings for delivery to potential syndicate members the Facilities and participants(ii) a public corporate credit rating and public corporate family rating in respect of the Borrower, in each case in form and substance customary for transactions of this type and otherwise reasonably satisfactory to the Arrangercase, including, without limitation, estimates, forecasts, projections and other forward-looking financial information prepared by the Guarantor regarding the future consolidated performance of the Guarantor and its subsidiaries (including projections for the third and fourth quarters of the fiscal year 2014 and for the fiscal years 2015 and 2016 that include the Acquired Company and its subsidiaries in the form of such projections delivered to and approved by the Arranger on or prior to the date hereof) (collectively, the “Projections”), and (d) the hosting, with the Arranger, of one or more meetings or conference calls with prospective Lenders at the request of the Arranger. You further agree that prior to, or promptly after, the announcement of the Acquisition you will advise from each of Standard & Poor’s Ratings Services (“S&P”) and ▇▇▇▇▇’▇ Investors Service, Inc. (“▇▇▇▇▇’▇Moody’s”), Standard & Poor’s Ratings Grouprespectively, and (e) the hosting, with the Arrangers, of up to three meetings of prospective Lenders at times and locations mutually agreed upon. Without limiting your obligations to assist with syndication efforts as set forth above, neither the receipt of such ratings nor the commencement, conduct or completion of such syndication is a division condition to the commitments or the funding of McGraw Hill Financialthe Facilities on the Closing Date. You agree, Inc. at the request of the Arrangers, to assist us in the preparation of a version of the Confidential Information Memorandum and other customary marketing materials to be used in connection with the syndication of the Facilities, consisting exclusively of information that is either publicly available or not material (or, in the case of a company that is not a public reporting company, information of a type that would reasonably be expected to be publicly available if such company were a public reporting company) with respect to Redwood Holdings, the Borrower, the Target, Redwood and their subsidiaries or any of their respective securities for purposes of United States Federal and state securities laws (all such information and documentation being “S&PPublic Lender Information”). Any information and documentation that is not Public Lender Information is referred to herein as “Private Lender Information”. It is understood that, in connection with your assistance described above, customary authorization letters, consistent with the terms of this Commitment Letter, will be included in any information package and Fitch IBCApresentation whereby you authorize the distribution of such information to prospective Lenders containing a representation substantially consistent with the first sentence of Section 4 of this Commitment Letter and a representation by you to the Financial Institutions that the Public Lender Information does not include material non-public information (or, Inc. (“Fitch”in the case of a company that is not a public reporting company, material information of a type that would not reasonably be expected to be publicly available if such company were a public reporting company) about Redwood Holdings, the Borrower, the Target, Redwood and their respective subsidiaries or their securities and exculpating us with respect to any liability related to the use of the Transactionscontents of such Public Lender Information or any related marketing material by the recipients thereof. You acknowledge and agree that, subject to the confidentiality and other provisions of Section 12 of this Commitment Letter, the following documents may be distributed to potential Lenders wishing to receive only Public Lender Information (unless you or your counsel promptly notify us (including by email) otherwise and provided that you and your counsel have been given a reasonable opportunity to review such documents and comply with applicable securities law disclosure obligations): (a) term sheets and drafts that are not marked confidential and final definitive documentation with respect to the nature Facilities; provided that, for the avoidance of doubt, no such term sheets may be distributed to any potential Lenders unless approved by us (such approval not to be unreasonably withheld or delayed); (b) administrative materials prepared by the Arrangers for prospective Lenders (such as a lender meeting invitation, allocations and funding and closing memoranda); and (c) notification of changes in the previously disclosed terms of the contemplated financing thereforFacilities. You also agree thatto use commercially reasonable efforts to identify that portion of any other Information (as defined below) or Projections (as defined below) (collectively, until the Syndication End Date“Borrower Materials”) to be distributed to “public side” lenders (i.e., you and your subsidiaries will lenders that do not issuewish to receive material non-public information (or, sellin the case of a company that is not a public reporting company, offer, place or arrange, or engage in any discussions material information of a type that would not reasonably be expected to be publicly available if such company were a public reporting company) with respect to Redwood Holdings, the Borrower, the Target, Redwood and their subsidiaries or any of their respective securities), including by clearly and conspicuously marking such materials “PUBLIC” which, at a minimum, shall mean that the foregoingword “PUBLIC” shall appear prominently on the first page thereof. By marking Borrower Materials “PUBLIC”, you shall be deemed to have authorized the Arrangers and the proposed Lenders to treat such Borrower Materials as not containing any material non-public information (or, in the case of a company that is not a public reporting company, material information of a type that would not reasonably be expected to be publicly available if such company were a public reporting company) with respect to Redwood Holdings, the Borrower, the Target, Redwood and their subsidiaries or any of their respective securities for purposes of United States Federal and state securities laws (it being understood that you shall not be under any obligation to ▇▇▇▇ the Borrower Materials “PUBLIC”). You hereby acknowledge and agree that any Borrower Materials that are not marked “PUBLIC” shall be treated as Private Lender Information by the Arrangers. The Lead Arrangers will manage all aspects of any syndication in consultation with you, including (in each case subject to the provisions set forth in this Commitment Letter), decisions as to the selection of institutions to be approached and when they will be approached, when their commitments will be accepted, which institutions will participate, the allocation of the commitments among the Lenders, any naming rights and the amount and distribution of fees among the Lenders. To assist the Arrangers in their syndication efforts, you agree promptly to prepare and provide (and, subject always to the extent provided in the Merger Agreement, to use commercially reasonable efforts to cause the Target to provide) to the Arrangers all customary information reasonably requested by the Lead Arrangers that is reasonably available to you with respect to Redwood Holdings, the Borrower, Redwood and their respective subsidiaries and the Transactions (as defined in the Transaction Description), including customary financial information and projections (such projections, the “Projections”), as the Lead Arrangers may reasonably request in connection with the structuring, arrangement and syndication of the Facilities. Notwithstanding anything herein to the contrary, the only financial statements that shall be required to be provided to the Arrangers as a condition precedent to closing shall be those required to be delivered pursuant to Exhibit C hereof. You hereby agree that, prior to the earlier of a Successful Syndication and 60 days after the Closing Date, there shall be no competing issues, offerings or placements of debt securities or commercial bank or other credit facilities by or on behalf of the Guarantor, you or the Borrower or their respective your or the Borrower’s subsidiaries, and you will use commercially reasonable efforts to ensure that there are no competing issues, offerings or placements of debt securities or commercial bank or other credit facilities by or on behalf of the Target or Redwood, being offered, placed or arranged (other than (i) the Bridge Loan FacilityFacilities, (ii) any New Bank Facility, (iii) the New Notes in an aggregate principal amount of up to $1,000,000,000, (iv) indebtedness under the existing commitments available under the Existing Credit Agreement, (v) working capital and overdraft facilities provided debt incurred pursuant to the Borrower Other Company Business Debt Commitment Letter (as defined in the Merger Agreement) or any indebtedness of the Target and its subsidiaries permitted to be incurred or outstanding pursuant to the Merger Agreement and other indebtedness incurred in the ordinary course of business of the Target and (vi) commercial paper financings in the ordinary course of businessits subsidiaries for capital expenditures and working capital purposes), without the prior written consent of the ArrangerLead Arrangers, if such issuance, offering, placement or arrangement would reasonably be expected to materially impair the primary syndication of the Facilities.
Appears in 1 contract
Sources: Additional Initial Lender Agreement (Aspen Merger Sub, Inc.)
Syndication. All aspects of the syndication of any New Bank Facility, including, without limitation, timing, potential syndicate members to be approached (which shall be identified by the Arranger subject to your approval right as set forth below), titles, initial and final allocations and division of fees, shall be determined by the Arranger in consultation with you; provided that each potential syndicate member to be approached must be approved by you (such approval not to be unreasonably withheld, delayed or conditioned) (it being agreed that each person that is currently a “Lender”, or hereafter becomes a “Lender” with your consent, under the Existing Credit Agreement is hereby approved by you). Citi reserves the right, prior to or after the execution of definitive documentation for the 364-Day Facility (but not before (i) the public announcement by you of the Acquisition and (ii) the receipt of customary commitment advices from Lenders other than Citi for at least US$700,000,000 of the principal amount of the 364-Day Facility), to syndicate all or a portion of its commitment hereunder to one or more Lenders pursuant to a syndication to be managed exclusively by the Arranger. The Lead Arranger intends to commence its syndication efforts with respect to of the 364-Day Term Facility promptly upon your execution and delivery following the date hereof to us of this Commitment Letterprospective lenders (together with the Initial Term Lenders, and will commence the syndication of any other New Bank Facility as such time as shall be mutually determined by “Lenders”) in consultation with you and by until the Arranger. Until earlier to occur of (a) a Successful Syndication (as defined in the closing under Fee Letter among us and you dated the definitive documentation for any New Bank date hereof (the “Fee Letter”)) and (b) 60 days following the funding of the Term Facility (such earlier date, the “Syndication End Date” with respect to such New Bank Facility”), you agree to actively use commercially reasonable efforts to assist the Lead Arranger in completing forming a syndicate for the Term Facility reasonably acceptable to us and you; provided that, except as expressly set forth in Section 2 above, such syndication shall not relieve the Commitment Party of such New Bank its obligations set forth herein (including its obligations to fund the Term Facility that is reasonably satisfactory to uson the Closing Date on the terms and conditions set forth in the Commitment Letter) and, includingunless you agree in writing, without limitation, by promptly preparing the Commitment Party shall retain exclusive control over all rights and providing the Arranger with such information obligations with respect to its commitments, including all rights with respect to consents, modifications, waivers and amendments, until after the Guarantor and its subsidiaries, in each case including financial information, as initial funding of the Arranger may reasonably deem necessary to arrange and complete a successful syndication of any New Bank FacilityTerm Facility on the Closing Date has occurred. Such assistance syndication will be accomplished by a variety of means, including direct contact during the syndication for the Term Facility between senior management and advisors of the Borrower and the prospective lenders, which shall includebe reasonably acceptable to you. To assist the Lead Arranger in its syndication efforts, (a) your using you hereby agree to use your commercially reasonable efforts (a) to ensure that any syndication efforts benefit materially from provide and cause your existing lending and investment banking relationships, (b) direct contact between senior management, representatives and advisors of you, on to provide the one hand, Lead Arranger and the proposed Lenders and rating agencies identified by the Arranger, on the other hand, at times and places reasonably requested by the Arranger and consented to by the Borrower (such consent not to be unreasonably withheld, delayed or conditioned), (c) assistance by you in the prompt preparation of a Confidential Information Memorandum for any New Bank Facility and other marketing materials and syndicate members upon request with all customary information reasonably deemed necessary by the Lead Arranger to complete syndication, including but not limited to information and evaluations prepared by you, your advisors or on your behalf relating to the Transactions; (b) to assist the Lead Arranger upon request in the preparation of customary marketing materials (the “Marketing Materials”), including a successful syndication of such New Bank customary information memorandum with respect to the Term Facility for delivery to potential syndicate members and participants, in each case in form and substance customary for transactions of this type and otherwise reasonably satisfactory to the Lead Arranger, includingto be used in connection with the syndication of the Term Facility (the “Confidential Information Memorandum”); (c) upon reasonable advanced notice to make available your senior officers and representatives, without limitation, estimates, forecasts, projections and other forwardto make telephonic or in-looking financial information prepared by the Guarantor person presentations regarding the future consolidated performance business and prospects of the Guarantor Borrower and its subsidiaries (including projections for the third and fourth quarters of the fiscal year 2014 and for the fiscal years 2015 and 2016 that include and/or the Acquired Company and its subsidiaries in the form of such projections delivered to and approved by the Arranger on or prior to the date hereof) (collectively, the “Projections”), and (d) the hosting, with the Arranger, of Business at one or more meetings or conference calls with prospective Lenders of proposed lenders at such reasonable times and in such reasonable places (as the request case may be) to be mutually agreed upon; (d) to obtain, prior to the commencement of syndication, a credit rating for the Arranger. You further agree that prior toTerm Facility and update the corporate and corporate family ratings, or promptly afteras applicable, for the announcement of the Acquisition you will advise Borrower from each of Standard & Poor’s Ratings Services and ▇▇▇▇▇’▇ Investors Service, Inc. (“▇▇▇▇▇’▇”)in each case, Standard & Poor’s Ratings Group, a division of McGraw Hill Financial, Inc. (“S&P”), and Fitch IBCA, Inc. (“Fitch”) of taking into account the Transactions, including ) and participate in a customary manner in the nature process of the contemplated financing therefor. You also agree that, until securing such ratings; (e) prior to the Syndication End Date, you and your subsidiaries will not issueto ensure that there shall be no competing issues, sellofferings, offer, place placements or arrange, or engage in any discussions with respect to any arrangements of the foregoing, any debt securities or commercial bank or other credit facilities by or on behalf of the Guarantor, the Borrower or any of its subsidiaries being offered, placed or arranged without the consent of the Lead Arranger, if such issuance, offering, placement or arrangement would reasonably be expected to materially impair the primary syndication of the Term Facility; and (f) to ensure that the Lead Arranger’s syndication efforts benefit from the existing lending and investment banking relationships of the Borrower and its subsidiaries. Notwithstanding the foregoing in this Section 3 and our right to syndicate our commitment hereunder, it is agreed that the success of any syndication of and receipt of commitments in respect of all or any portion of our commitments hereunder prior to the funding of the Term Facility shall not be a condition to our commitments hereunder. Subject to the terms hereof and limitations and your consent rights set forth herein, the Lead Arranger will lead the syndication and will manage, in consultation with you, all aspects of the syndication, including, without limitation, selection of lenders, determination of when the Lead Arranger will approach potential lenders and the time of acceptance of the lenders’ commitments, any naming rights, the final allocations of the commitments among the lenders and the amount and distribution of fees among the lenders. To assist the Lead Arranger in its syndication efforts, subject to the limitations in the preceding paragraph, upon the request of the Lead Arranger, you agree to use commercially reasonable efforts to promptly to prepare and provide to the Lead Arranger the Marketing Materials with respect to you, and your subsidiaries and the Transactions, including annual projections of the Borrower (giving pro forma effect to the Transactions) through 2021 with respect to income statements and balance sheets (the “Projections”), that are not otherwise in any Lead Arranger’s possession and that the Lead Arranger reasonably requests in connection with the structuring, arrangement and syndication of the Term Facility. At the request of the Commitment Party, you agree to assist in the preparation of a version of the Marketing Materials (a “Public Version”) consisting exclusively of information with respect to you and your affiliates, the Acquired Business and the Acquisition that is either publicly available or not material with respect to you and your affiliates, the Seller and its subsidiaries, any of your or their respective subsidiariessecurities or the Acquisition for purposes of United States federal and state securities laws and Canadian securities laws (such information, “Non-MNPI”). Such Public Versions, together with any other than information prepared by you or the Seller or your or its affiliates or representatives and conspicuously marked “Public” (collectively, the “Public Information”), which at a minimum means that the word “Public” will appear prominently on the first page of any such information, may be distributed by us to prospective Lenders who have advised us that they wish to receive only Non-MNPI (“Public Side Lenders”). You acknowledge and agree that, in addition to Public Information and unless you promptly notify us otherwise, (a) term sheets, drafts and final definitive documentation with respect to the Term Facility, (b) administrative materials prepared by the Commitment Party for prospective Lenders (such as a lender meeting invitation, allocations and funding and closing memoranda) and (c) notifications of changes in the terms of the Term Facility may be distributed to Public Side Lenders. It is understood that in connection with your assistance described above, customary authorization letters will be included in the Marketing Materials that (i) authorize the Bridge Loan Facilitydistribution thereof to prospective Lenders, (ii) any New Bank Facility, represent that the Public Version of the Marketing Materials only includes non-MNPI and (iii) exculpate you, the New Notes in an aggregate principal amount of up Seller and us and your, our and their respective affiliates with respect to $1,000,000,000, (iv) indebtedness under the existing commitments available under the Existing Credit Agreement, (v) working capital and overdraft facilities provided any liability related to the Borrower and its subsidiaries misuse (or, in the ordinary course case of business us and (viour affiliates, use) commercial paper financings of the contents of the Marketing Materials or related materials by the recipients thereof and, in the ordinary course case of businessus, without any liability with respect to the prior written consent contents of the Arrangersuch Marketing Materials or related materials.
Appears in 1 contract
Sources: Commitment Letter (Open Text Corp)
Syndication. All aspects The Lead Arrangers intend to commence syndication of the syndication Bridge Facility promptly after your acceptance of any New Bank Facility, including, without limitation, timing, potential syndicate members to be approached the terms of this Commitment Letter and the Fee Letter (which shall be identified by the Arranger subject to your approval right as set forth below), titles, initial hereinafter defined) and final allocations and division of fees, shall be determined by the Arranger in consultation with you; provided that each potential syndicate member to be approached must be approved by you (such approval not to be unreasonably withheld, delayed or conditioned) (it being agreed that each person that is currently a “Lender”, or hereafter becomes a “Lender” with your consent, under the Existing Credit Agreement is hereby approved by you). Citi reserves the right, prior to or after the execution of definitive documentation for the 364-Day Facility Acquisition Agreement (but which syndication shall not before (i) reduce the public announcement by you commitments of the Acquisition and (ii) the receipt of customary commitment advices from Initial Bridge Lenders other than Citi hereunder, except as provided for at least US$700,000,000 of the principal amount of the 364-Day Facility), to syndicate all or a portion of its commitment hereunder to one or more Lenders pursuant to a syndication to be managed exclusively by the Arranger. The Arranger intends to commence its syndication efforts with respect to the 364-Day Facility promptly upon your execution and delivery to us of this Commitment Letter, and will commence the syndication of any other New Bank Facility as such time as shall be mutually determined by you and by the Arrangerin Section 8). Until the closing under earlier of 60 days following the definitive documentation for any New Bank Facility Closing Date and the completion of a Successful Syndication (as defined in the Fee Letter (as defined below)) (such date, the “Syndication End Date” with respect to such New Bank Facility”), you agree to actively assist assist, and to use your commercially reasonable efforts to cause the Arranger in completing a syndication of such New Bank Facility that is reasonably satisfactory to us, including, without limitation, by promptly preparing and providing the Arranger with such information with respect to the Guarantor Acquired Business and its subsidiariessubsidiaries to actively assist, the Lead Arrangers in each case including financial information, achieving a Successful Syndication (as defined in the Arranger may reasonably deem necessary to arrange and complete a successful syndication of any New Bank FacilityFee Letter). Such assistance shall include, include (a) your providing and causing your advisors to provide, and using your commercially reasonable efforts to ensure that any syndication efforts benefit materially from your existing lending cause the Acquired Business, their subsidiaries and investment banking relationshipstheir advisors to provide, (b) direct contact between senior management, representatives and advisors of you, on the one hand, Lead Arrangers and the proposed Lenders and rating agencies identified by the Arranger, on the other hand, at times and places reasonably requested by the Arranger and consented to by the Borrower (such consent not to be unreasonably withheld, delayed or conditioned), (c) assistance by you in the prompt preparation of a Confidential Information Memorandum for any New Bank Facility and other marketing materials and upon reasonable request with all information reasonably deemed necessary by the Arranger Lead Arrangers to complete such syndication, including, but not limited to, information and evaluations prepared by you, the Acquired Business and your and its advisors, or on your or its behalf, relating to the Transactions (including the Projections (as hereinafter defined)), (b) your assistance in the preparation of a successful syndication of such New Bank confidential information memorandum with respect to the Bridge Facility for delivery to potential syndicate members and participants, in each case in form and substance customary for transactions of this type and otherwise reasonably satisfactory to the ArrangerLead Arrangers (each, including, without limitation, estimates, forecasts, projections an “Information Memorandum”) and other forward-looking financial information prepared by customary marketing materials to be used in connection with the Guarantor regarding the future consolidated performance syndication of the Guarantor Bridge Facility (collectively with the Term Sheet and its subsidiaries any additional summary of terms prepared for distribution to Public Lenders (including projections for the third and fourth quarters of the fiscal year 2014 and for the fiscal years 2015 and 2016 that include the Acquired Company and its subsidiaries in the form of such projections delivered to and approved by the Arranger on or prior to the date hereof) (collectivelyas hereinafter defined), the “ProjectionsInformation Materials”), (c) your using your commercially reasonable efforts to ensure that the syndication efforts of the Lead Arrangers benefit from your existing lending relationships and, to the extent practical and appropriate, the existing banking relationships of the Acquired Business, (d) your using commercially reasonable efforts to execute and deliver one or more Joinder Agreements (as hereinafter defined) delivered to you in respect of any Permitted Assignee, as soon as reasonably practicable following commencement of syndication of the hostingBridge Facility and (e) your otherwise assisting the Lead Arrangers in their syndication efforts, with including by making your officers and advisors, and using your commercially reasonable efforts to make the Arrangerofficers and advisors of the Acquired Business, of available from time to time to attend and make presentations at one or more meetings or conference calls with of prospective Lenders at times and places to be mutually agreed, subject to confidentiality agreements acceptable to Borrower and the request of the ArrangerLead Arrangers. You further agree that prior to, to use commercially reasonable efforts to deliver to one or promptly after, more investment banks appointed by you to place or sell securities in connection with the announcement of Senior Notes (collectively the Acquisition you will advise each of ▇▇▇▇▇’▇ Investors Service, Inc. (“▇▇▇▇▇’▇Investment Bank”), Standard & Poor’s Ratings Groupnot later than 10 business days prior to the Closing Date (or as soon thereafter as reasonably practicable), a division complete preliminary prospectus supplement, preliminary offering memorandum or preliminary private placement memorandum (collectively, an “Offering Document”) suitable for use in a customary “road show” relating to the placing or selling of McGraw Hill Financialsecurities in connection with the Senior Notes, Inc. which contains all financial statements and other data required to be included therein or customarily included therein (“S&P”including all audited financial statements, all unaudited financial statements (which shall have been reviewed by your independent accountants as provided in the procedures specified by the Public Company Accounting Oversight Board in AU 722) and all required pro forma financial statements prepared in accordance with, or reconciled to, generally accepted accounting principles in the United States and prepared in accordance with Regulation S-X under the Securities Act of 1933, as amended), and Fitch IBCA, Inc. all other data (“Fitch”including selected financial data) that the Securities and Exchange Commission would require in a registered offering of the Transactions, Senior Notes or that would be necessary for the Investment Banks to receive customary “comfort” (including “negative assurance” comfort) from independent accountants in connection with the nature Senior Notes and (2) arrange to deliver at the closing of such placement or sale (A) a customary comfort letter (which shall provide “negative assurance” comfort) from your independent accountants (and any predecessor accountant or acquired company accountant to the extent financial statements of the contemplated financing thereforBorrower or any acquired company audited or reviewed by such accountants are or would be included in any Offering Document) and (B) a customary “10b-5” legal opinion or disclosure letter from your counsel. You also In order to facilitate an orderly and successful syndication of the Bridge Facility, you agree that, that until the Syndication End Date, you and your subsidiaries the Borrower will not issue, sellannounce, offer, place or arrange, or engage in any discussions with respect to any of the foregoing, any arrange debt securities or commercial bank or other any syndicated credit facilities of the Guarantor, the Borrower or their respective subsidiaries, its subsidiaries (other than (i) the Bridge Loan FacilitySenior Notes, (ii) any New Bank Facility, the Term Loan Facility and (iii) amendments or refinancings of the New Notes in an Existing Credit Agreement that do not increase the aggregate principal committed amount of up to $1,000,000,000, thereof and (iv) indebtedness any other financing agreed by the Lead Arrangers), in each case if such issuance, announcement, offering, placement or arrangement could reasonably be expected to materially impair the primary syndication of the Bridge Facility. It is understood and agreed that the Lead Arrangers will manage and control all aspects of the syndication of the Bridge Facility in consultation with you, including decisions as to the selection of prospective Lenders and any titles offered to proposed Lenders, when commitments will be accepted and the final allocations of the commitments among the Lenders. It is understood that no Lender participating in the Bridge Facility will receive compensation from you in order to obtain its commitment, except on the terms contained herein and in the Term Sheet and Fee Letter. It is also understood and agreed that the amount and distribution of the fees among the Lenders will be at the sole and absolute discretion of the Lead Arrangers. Notwithstanding to the contrary contained in this Commitment Letter or any other agreement or undertaking concerning the Bridge Facility, but without limiting the conditions precedent in Section 5 hereof or Exhibit B, and without limiting your obligations to assist with syndication in this ▇▇▇▇▇▇▇ ▇, ▇▇▇▇ of the foregoing obligations under the existing commitments available under provisions of this Section 2 nor the Existing Credit Agreementcommencement, (v) working capital and overdraft facilities provided conduct or completion of the syndication contemplated by this Section 2 is a condition to the Borrower and its subsidiaries in commitments or the ordinary course of business and (vi) commercial paper financings in the ordinary course of business, without the prior written consent funding of the Arranger.Bridge Facility on the Closing Date
Appears in 1 contract
Sources: Bridge Facility Commitment Letter (Laboratory Corp of America Holdings)
Syndication. All aspects The Arrangers intend, and reserve the right, to syndicate the Senior Facilities to the Lenders promptly following the date hereof, and you acknowledge and agree that the commencement of syndication shall occur in the discretion of the syndication Arrangers. The Arrangers will select the Lenders after consultation with you. The Arrangers will lead the syndication, including determining the timing of all offers to potential Lenders, any New Bank Facilitytitle of agent or similar designations or roles awarded to any Lender and the acceptance of commitments, including, without limitation, timing, potential syndicate members the amounts offered and the compensation provided to each Lender from the amounts to be approached (which shall be identified by paid to the Arranger subject Arrangers pursuant to your approval right as set forth below)the terms of this Commitment Letter and the Fee Letter. The Arrangers will, titles, initial and final allocations and division of fees, shall be determined by the Arranger in consultation with you; provided that each potential syndicate member to be approached must be approved by you (such approval not to be unreasonably withheld, delayed or conditioned) (it being agreed that each person that is currently a “Lender”, or hereafter becomes a “Lender” with your consent, under determine the Existing Credit Agreement is hereby approved by you). Citi reserves the right, prior to or after the execution of definitive documentation for the 364-Day Facility (but not before (i) the public announcement by you of the Acquisition and (ii) the receipt of customary final commitment advices from Lenders other than Citi for at least US$700,000,000 of the principal amount of the 364-Day Facility), to syndicate all or a portion of its commitment hereunder to one or more Lenders pursuant to a syndication to be managed exclusively by the Arranger. The Arranger intends to commence its syndication efforts with respect to the 364-Day Facility promptly upon your execution and delivery to us of this Commitment Letter, allocations and will commence notify the syndication Company of any other New Bank Facility as such time as shall be mutually determined by you and by the Arrangerdeterminations. Until the closing under the definitive documentation for any New Bank Facility (such date, the “Syndication End Date” with respect to such New Bank Facility), you You agree to actively assist the Arranger in completing a syndication of such New Bank Facility that is reasonably satisfactory to us, including, without limitation, by promptly preparing and providing the Arranger with such information with respect to the Guarantor and its subsidiaries, in each case including financial information, as the Arranger may reasonably deem necessary to arrange and complete a successful syndication of any New Bank Facility. Such assistance shall include, (a) your using your use commercially reasonable efforts to ensure that any the Arrangers’ syndication efforts benefit materially from your the existing lending relationships of the Company and investment banking relationshipsthe Merger Party and their respective subsidiaries. To facilitate an orderly and successful syndication of the Senior Facilities, you agree that, until the earliest of (x) the termination of the syndication as determined by the Arrangers, (y) the consummation of a Successful Syndication (as defined in the Fee Letter) and (z) 90 days after the Closing Date, neither the Company nor the Merger Party (including, in each case, their respective subsidiaries) will syndicate or issue, attempt to syndicate or issue, announce or authorize the announcement of the syndication or issuance of, any debt facility or any debt or equity security of the Merger Party or the Company or any of their respective subsidiaries or affiliates (other than (a) the Senior Facilities and other indebtedness contemplated hereby to remain outstanding after the Closing Date and (b) direct contact between senior management, representatives and advisors the issuance of you, (i) common equity of the Merger Party to shareholders of the Company on the one handClosing Date, and (ii) the proposed Lenders and rating agencies identified by the Arranger, on the other hand, at times and places reasonably requested by the Arranger and consented to by the Borrower Securities (such consent not to be unreasonably withheld, delayed or conditionedif any), (ciii) assistance equity issued in connection with the conversion of any convertible debt securities of the Company or the Merger Party, hedging arrangements or warrants and (iv) equity pursuant to employee stock plans of the Company and the Merger Party and other similar arrangements to be mutually agreed upon by you and the Arrangers) without the prior written consent of the Arrangers. You agree to cooperate with the Commitment Parties, in connection with (i) the prompt preparation of a one or more information packages regarding the business, operations and financial projections of the Company and the Merger Party (collectively, the “Confidential Information Memorandum for any New Bank Facility and other marketing materials and information reasonably deemed necessary by the Arranger to complete a successful syndication of such New Bank Facility for delivery to potential syndicate members and participants, in each case in form and substance customary for transactions of this type and otherwise reasonably satisfactory to the Arranger, Memorandum”) including, without limitation, estimates, forecasts, projections and other forward-looking financial all information relating to the transactions contemplated hereunder prepared by the Guarantor regarding the future consolidated performance or on behalf of the Guarantor and its subsidiaries (including projections for Company or the third and fourth quarters Merger Party deemed reasonably necessary by the Commitment Parties to complete the syndication of the fiscal year 2014 and for the fiscal years 2015 and 2016 that include the Acquired Company and its subsidiaries in the form of such projections delivered Senior Facilities including, without limitation, using commercially reasonable efforts to and approved by the Arranger on or prior to the date hereofobtain (a) (collectively, the “Projections”), and (d) the hosting, with the Arranger, of one or more meetings or conference calls with prospective Lenders at the request of the Arranger. You further agree that prior to, or promptly after, the announcement of the Acquisition you will advise each of ▇a public corporate family rating from M▇▇▇▇’▇ Investors ServiceInvestor Services, Inc. (“▇▇▇▇▇’▇Moody’s”)) for the Company, (b) a public corporate credit rating from Standard & Poor’s Ratings Group, a division of The McGraw Hill Financial, Inc. Corporation (“S&P”)) for the Company and (c) a public credit rating for the Senior Facilities from each of Moody’s and S&P, and Fitch IBCA(ii) the presentation of one or more information packages reasonably acceptable in format and content to the Commitment Parties (collectively, Inc. (the “FitchLender Presentation”) in meetings and other communications with prospective Lenders or agents in connection with the syndication of the TransactionsSenior Facilities (including, including the nature without limitation, direct contact between senior management and representatives, with appropriate seniority and expertise, of the contemplated financing thereforCompany and the Merger Party with prospective Lenders and participation of such persons in meetings). You also further agree that, until that the Syndication End Date, you commitments and agreements of the Commitment Parties hereunder are conditioned upon your subsidiaries satisfaction of the requirements of the foregoing provisions of this paragraph by a date sufficient to afford the Arrangers a period of at least 30 consecutive days following the launch of the general syndication of the Senior Facilities to syndicate the Senior Facilities prior to the Closing Date (as defined in Annex B); provided that such period will not issueinclude any day from and including August 23, sell2010 through September 6, offer2010 or December 18, place 2010 through January 3, 2011. You will be solely responsible for the contents of any such Confidential Information Memorandum and Lender Presentation (other than, in each case, any information contained therein that has been provided for inclusion therein by the Commitment Parties solely to the extent such information relates to the Commitment Parties) and all other information, documentation or arrangematerials delivered to the Arrangers in connection therewith (collectively, the “Information”) and you acknowledge that the Commitment Parties will be using and relying upon the Information without independent verification thereof. You agree that Information regarding the Senior Facilities and Information provided by the Company and the Merger Party or engage their respective representatives to the Arrangers in connection with the Senior Facilities (including, without limitation, draft and execution versions of the Loan Documents, the Confidential Information Memorandum, the Lender Presentation, publicly filed financial statements, and draft or final offering materials relating to contemporaneous securities issuances by the Company or the Merger Party) may be disseminated to potential Lenders and other persons through one or more internet sites (including an IntraLinks, SyndTrak or other electronic workspace (the “Platform”)) created for purposes of syndicating the Senior Facilities or otherwise, in accordance with the Arrangers’ standard syndication practices, and you acknowledge that neither the Arrangers nor any discussions of their affiliates will be responsible or liable to you or any other person or entity for damages arising from the use by others of any Information or other materials obtained on the Platform, except, in the case of damages to you but not to any other person, to the extent such damages are found by a final judgment of a court of competent jurisdiction to arise from the gross negligence or willful misconduct of any Arranger or any of its affiliates or any of their respective directors, employees, advisors or agents. You acknowledge that certain of the Lenders may be “public side” Lenders (i.e. Lenders that do not wish to receive material non-public information with respect to any of the foregoing, any debt securities or commercial bank or other credit facilities of the GuarantorCompany, the Borrower Merger Party or their respective subsidiariesaffiliates or any of its or their respective securities) (each, a “Public Lender”). At the request of the Arrangers, you agree to prepare an additional version of the Confidential Information Memorandum and the Lender Presentation to be used by Public Lenders that does not contain material non-public information concerning the Company, the Merger Party or their respective affiliates or securities. It is understood that in connection with your assistance described above, at the request of the Arrangers, you will provide, and cause all other than (i) applicable persons to provide, authorization letters to the Bridge Loan FacilityArrangers authorizing the distribution of the Information to prospective Lenders, (ii) any New Bank Facilitycontaining a representation to the Arrangers that the public-side version does not include material non-public information about the Company, (iii) the New Notes in an aggregate principal amount of up to $1,000,000,000Merger Party or their respective affiliates or its or their respective securities. In addition, (iv) indebtedness under the existing commitments available under the Existing Credit Agreement, (v) working capital and overdraft facilities you will clearly designate as such all Information provided to the Borrower Commitment Parties by or on behalf of the Company or the Merger Party which is suitable to make available to Public Lenders. You acknowledge and its subsidiaries agree that the following documents may be distributed to Public Lenders, unless you advise the Arrangers in writing (including by email) within a reasonable time prior to their intended distributions that such material should only be distributed to prospective Lenders that are not Public Lenders: (a) drafts and final versions of the Loan Documents; (b) administrative materials prepared by the Arrangers for prospective Lenders (such as a lender meeting invitation, allocations and funding and closing memoranda); and (c) term sheets and notification of changes in the ordinary course of business and (vi) commercial paper financings in the ordinary course of business, without the prior written consent terms of the ArrangerSenior Facilities.
Appears in 1 contract
Sources: Merger Agreement (BIOVAIL Corp)
Syndication. All aspects Each Arranger intends and reserves the right to syndicate (i) the Incremental Term Loan Facility and (ii) solely to the extent that you have not exercised your Designation Right with respect to at least 25% of the syndication aggregate principal amount of any New Bank the ABL Facility, includingthe ABL Facility to the Lenders; provided that, without limitationunless otherwise agreed by you, timingno assignment prior to the Closing Date will reduce or release any Commitment Party’s obligation to fund its commitment or to effectuate the Amendment in the event any assignee shall fail to do so on the Closing Date. The Arrangers will lead the syndication, potential syndicate members to be approached (which shall be identified by the Arranger subject to your approval right as set forth below)including determining, titles, initial and final allocations and division of fees, shall be determined by the Arranger in consultation with you; , the timing of all offers to prospective Lenders, any title of agent or similar designations or roles awarded to any Lender and the acceptance of commitments, the amounts offered and the compensation provided that to each potential syndicate member Lender from the amounts to be approached must be approved paid to the Arrangers pursuant to the terms of this Commitment Letter and the Arranger Fee Letter and will in consultation with you determine the final commitment allocations. You agree to use commercially reasonable efforts to ensure that the Arrangers’ syndication efforts benefit from the existing lending and investment banking relationships of the Borrower, the Company and their respective subsidiaries. To facilitate an orderly and successful syndication of the Facilities, you agree that, until the earliest of (a) the termination by you the Arrangers of syndication of the Facilities, (such approval not to be unreasonably withheld, delayed or conditionedb) (it being agreed that each person that is currently a “Lender”, or hereafter becomes a “Lender” with your consent, under the Existing Credit Agreement is hereby approved by you). Citi reserves the right, prior to or after the execution of definitive documentation for the 364-Day Facility (but not before (i) with respect to the public announcement by you Incremental Term Loan Facility, the earlier of (A) 60 days following the Acquisition Closing Date and (B) the termination of commitments with respect to the Incremental Term Loan Facility and (ii) the receipt of customary commitment advices from Lenders other than Citi for at least US$700,000,000 of the principal amount of the 364-Day Facility), to syndicate all or a portion of its commitment hereunder to one or more Lenders pursuant to a syndication to be managed exclusively by the Arranger. The Arranger intends to commence its syndication efforts with respect to the 364-Day Facility promptly upon your execution and delivery to us of this Commitment Letter, and will commence the syndication of any other New Bank Facility as such time as shall be mutually determined by you and by the Arranger. Until the closing under the definitive documentation for any New Bank Facility (such dateABL Facility, the “Syndication End Date” with respect to such New Bank Facility)earlier of (A) if the ABL Closing Date occurs, you agree to actively assist 60 days following the Arranger in completing a syndication ABL Closing Date and (B) the termination of such New Bank Facility that is reasonably satisfactory to us, including, without limitation, by promptly preparing and providing the Arranger with such information commitments with respect to the Guarantor ABL Facility and (c) solely with respect to the Incremental Term Loan Facility, the “Successful Syndication” of the Incremental Term Loan Facility (as defined in the Term Arranger Fee Letter), you will ensure (or with respect to the Company or its subsidiaries, in each case including financial information, as the Arranger may reasonably deem necessary to arrange and complete a successful syndication of any New Bank Facility. Such assistance shall include, (a) your using your commercially reasonable efforts to ensure ensure) there will be no competing issues, offerings, placements or arrangements of any debt facility or any debt security of the Company or the Borrower or any of their respective subsidiaries, including any renewal or refinancing of any existing debt facility or debt security, being issued, offered, placed or arranged without the consent of the Arrangers, if such issuance, offering, placement or arrangement would materially impair the primary syndication of the Facilities (it being understood that any (i) indebtedness incurred under the Existing Credit Agreements, the ABL Facility or the Term Loan Credit Agreement, and (ii) (x) as to the Company and its subsidiaries, indebtedness permitted under the Acquisition Agreement to be incurred or remain outstanding prior to the closing date under the Acquisition Agreement, and indebtedness permitted to remain outstanding on and after the closing date under the Acquisition Agreement and (y) as to the Borrower and its subsidiaries, deferred purchase price obligations, ordinary course working capital facilities for foreign subsidiaries, ordinary course capital lease and purchase money and equipment financings will not be deemed to materially impair the primary syndication of the Facilities). You agree to, and agree to use commercially reasonable efforts benefit materially to obtain contractual undertakings from the Company to, cooperate with, and provide customary information reasonably required by, the Arrangers in connection with all syndication efforts, including: (i) your existing lending assistance in preparing as soon as practicable after the date of this Commitment Letter, a customary information memorandum and investment banking relationshipsother customary presentation materials (collectively, “Confidential Information Memoranda”) regarding the business, operations and financial projections of the Borrower and the Company (bwhich shall be, with respect to the Company, limited to the financial information and projections described in Exhibit C) including without limitation the delivery of all customary information relating to the Transactions prepared by or on behalf of the Borrower or the Company; (ii) using commercially reasonable efforts to obtain from ▇▇▇▇▇’▇ Investor Service, Inc. (“Moody’s”) and Standard & Poor’s Ratings Services, a Standard & Poor’s Financial Services LLC business (“S&P”), prior to the launch of the general syndication, a corporate family rating, a corporate credit rating and a credit rating for the Incremental Term Loan Facility; (iii) arranging for direct communications with prospective Lenders in connection with the syndication of the Facilities (including without limitation direct contact between appropriate senior management, representatives and advisors of youthe Borrower (and using commercially reasonable efforts to cause direct contact with appropriate senior management, representatives and advisors of the Company) and participation of such persons in such meetings); (iv) if the ABL Borrowers elect to include Eligible Inventory (as defined in the Existing ABL Credit Agreement) in the Borrowing Base on the one handABL Closing Date, inventory appraisals, of the Loan Parties prior to the ABL Closing Date; and (v) hosting (including any preparations with respect thereto) with the proposed Lenders Arrangers at places and rating agencies identified by the Arranger, on the other hand, at times and places reasonably requested by the Arranger and consented to by the Borrower (such consent not to be unreasonably withheldArrangers, delayed or conditioned), (c) assistance by you in the prompt preparation of a Confidential Information Memorandum for any New Bank Facility and other marketing materials and information reasonably deemed necessary by the Arranger to complete a successful syndication of such New Bank Facility for delivery to potential syndicate members and participants, in each case in form and substance customary for transactions of this type and otherwise reasonably satisfactory to the Arranger, including, without limitation, estimates, forecasts, projections and other forward-looking financial information prepared by the Guarantor regarding the future consolidated performance of the Guarantor and its subsidiaries (including projections for the third and fourth quarters of the fiscal year 2014 and for the fiscal years 2015 and 2016 that include the Acquired Company and its subsidiaries in the form of such projections delivered to and approved by the Arranger on or prior to the date hereof) (collectively, the “Projections”), and (d) the hosting, with the Arranger, of one or more meetings or conference calls with prospective Lenders at the request of the ArrangerLenders. You further agree that prior to, or promptly after, the announcement of the Acquisition you will advise each of ▇▇▇▇▇’▇ Investors Service, Inc. (“▇▇▇▇▇’▇”), Standard & Poor’s Ratings Group, a division of McGraw Hill Financial, Inc. (“S&P”), and Fitch IBCA, Inc. (“Fitch”) of the Transactions, including the nature of the contemplated financing therefor. You also agree that, until the Syndication End DateIn addition, you agree to use commercially reasonable efforts to ensure that the ABL Agent and your subsidiaries will not issue, sell, offer, place or arrange, or engage in any discussions with respect to any of the foregoing, any debt securities or commercial bank or other credit facilities of the Guarantor, the Borrower or their respective subsidiaries, other than (i) the Bridge Loan Facility, (ii) any New Bank Facility, (iii) the New Notes in an aggregate principal amount of up to $1,000,000,000, (iv) indebtedness under the existing commitments available under the Existing Credit Agreement, (v) working capital and overdraft facilities provided its designees shall have sufficient access to the Borrower and its subsidiaries subsidiaries, and you agree to use commercially reasonable efforts to ensure that the ABL Agent and its designees shall have sufficient access to the Company and its subsidiaries, to complete a field examination as soon as practicable after the date hereof. You will be solely responsible for the contents of the Confidential Information Memoranda and all other information, documentation or other materials delivered to us in connection therewith and you acknowledge that we will be using and relying upon such information without independent verification thereof as provided in Section 4 below. Subject to your consent, not to be unreasonably withheld or delayed, and compliance with applicable laws, you agree that each Arranger has the right to place advertisements in financial and other newspapers at its own expense describing its services to you and the Borrower. We agree that the only financial statements that shall be required to be provided to the Commitment Parties in connection with the syndication of the Facilities shall be those required to be delivered pursuant to paragraphs 3 and 4 of Exhibit C. Notwithstanding anything to the contrary contained in this Commitment Letter or the Fee Letter or any other letter agreement or undertaking concerning the financing of the Transactions to the contrary, your obligations to assist in syndication efforts as provided herein (including compliance with any of the provisions set forth in this paragraph), shall not constitute a condition to the commitments hereunder or the funding of the Facilities on the Closing Date. You understand that certain prospective Lenders (such Lenders, “Public Lenders”) may have personnel that do not wish to receive MNPI (as defined below). At an Arranger’s request, you agree to assist in the ordinary course preparation of business an additional version of the Confidential Information Memoranda that does not contain material non-public information (as reasonably determined by you) concerning you, the Company or your or its respective subsidiaries or affiliates or your or its respective securities (collectively, “MNPI”) which is suitable to make available to Public Lenders. You acknowledge and agree that the following documents may be distributed to Public Lenders (unless you or your counsel promptly notify us (including by email) otherwise and provided that you and your counsel have been given a reasonable opportunity to review such documents and comply with applicable securities law disclosure obligations): (a) drafts and final versions of the Facilities Documentation; (b) administrative materials prepared by any Arranger for prospective Lenders (including without limitation a lender meeting invitation, allocations and funding and closing memoranda); and (vic) commercial paper financings summaries of terms and notification of changes in the ordinary course of business, without the prior written consent terms and conditions of the Facilities. Before distribution of any Confidential Information Memoranda in connection with the syndication of the Facilities (i) to prospective Lenders that are not Public Lenders, you will provide us with a customary letter authorizing the dissemination of such materials and (ii) to prospective Public Lenders, you will provide us with a customary letter authorizing the dissemination of information that does not contain MNPI (the “Public Information Materials”) to Public Lenders and confirming the absence of MNPI therein. The Confidential Information Memoranda provided to Lenders and prospective Lenders will be accompanied by a disclaimer by such recipients exculpating us with respect to any use thereof and of any related materials by the recipients thereof. In addition, at an Arranger’s request, you will identify Public Information Materials by marking the same as “PUBLIC” and by doing so you shall be deemed to have authorized the Commitment Parties and the proposed Lenders to treat such Public Information Materials as not containing any MNPI. It is agreed that the completion of the successful syndication of, or receipt of commitments in respect of, the Facilities will not be a condition to the Commitment Parties’ commitments hereunder.
Appears in 1 contract
Syndication. All aspects (a) The Lead Arrangers intend and reserve the right, both prior to and after the Closing Date, to secure commitments for the Term A Facility from a syndicate of the syndication of any New Bank Facilitybanks, includingfinancial institutions and other entities, without limitationin each case, timingother than Disqualified Institutions (as defined below), potential syndicate members to be approached (which shall be identified by the Arranger subject to your approval right as set forth below), titles, initial and final allocations and division of fees, shall be determined by the Arranger Lead Arrangers in consultation with you; provided that each potential syndicate member you and reasonably acceptable to be approached must be approved by you (with such approval consent not to be unreasonably withheld, delayed withheld or conditioneddelayed) (it being agreed that each person that is currently a such banks, financial institutions and other entities committing to the Term A Facility, including W▇▇▇▇ Fargo Bank, Bank of America and TD Bank, the “LenderLenders”, or hereafter becomes a “Lender” with your consent, under ) upon the Existing Credit Agreement is hereby approved by you)terms and subject to the conditions set forth in this Commitment Letter. Citi reserves Until the right, prior to or after the execution earlier of definitive documentation for the 364-Day Facility (but not before (i) the public announcement by you of date that a Successful Syndication (as defined in the Acquisition Fee Letter) is achieved and (ii) the receipt of customary commitment advices from Lenders other than Citi for at least US$700,000,000 of date that is 60 days following the principal amount of the 364-Day Facility), to syndicate all or a portion of its commitment hereunder to one or more Lenders pursuant to a syndication to be managed exclusively by the Arranger. The Arranger intends to commence its syndication efforts with respect to the 364-Day Facility promptly upon your execution and delivery to us of this Commitment Letter, and will commence the syndication of any other New Bank Facility as such time as shall be mutually determined by you and by the Arranger. Until the closing under the definitive documentation for any New Bank Facility Closing Date (such date, the “Syndication End Date” with respect to such New Bank Facility”), you agree to assist, and will use commercially reasonable efforts to cause appropriate members of management of the Acquired Company to assist, us actively assist the Arranger in completing achieving a syndication of such New Bank the Term A Facility that is satisfactory to us and you. To assist us in our syndication efforts, you agree that you will, and will cause your representatives and advisors to, and will use commercially reasonable efforts to cause appropriate remaining members of management of the Acquired Company and its representatives and advisors to, reasonably (i) provide promptly to the Commitment Parties and the other Lenders upon reasonable request all customary information reasonably deemed necessary by the Lead Arrangers to assist the Lead Arrangers and each Lender in their evaluation of the Transactions and to complete the syndication, (ii) make your senior management and appropriate members of management of the Acquired Company available to prospective Lenders on reasonable prior notice and at reasonable times and places mutually agreed upon, (iii) host, with the Lead Arrangers, one or more virtual meetings and/or calls with prospective Lenders at mutually agreed times and locations, (iv) assist, and cause your affiliates and advisors to assist, the Lead Arrangers in the preparation of one or more confidential information memoranda and other marketing materials, including any financial statements required under the Certain Funds Provisions, in form and substance reasonably satisfactory to us, including, without limitation, by promptly preparing and providing the Arranger Lead Arrangers to be used in connection with such information with respect to the Guarantor and its subsidiaries, in each case including financial information, as the Arranger may reasonably deem necessary to arrange and complete a successful syndication of any New Bank Facility. Such assistance shall includesyndication, (av) your using your use commercially reasonable efforts to ensure that any the syndication efforts of the Lead Arrangers benefit materially from your the existing lending relationships of the Borrower and investment banking relationshipsthe Acquired Company, (bvi) direct contact between senior management, representatives [reserved] and advisors of you, on the one hand, (vii) ensure (and the proposed Lenders and rating agencies identified by the Arranger, on the other hand, at times and places reasonably requested by the Arranger and consented use your commercially reasonable efforts to by the Borrower (such consent not to be unreasonably withheld, delayed or conditioned), (c) assistance by you in the prompt preparation of a Confidential Information Memorandum for any New Bank Facility and other marketing materials and information reasonably deemed necessary by the Arranger to complete a successful syndication of such New Bank Facility for delivery to potential syndicate members and participants, in each case in form and substance customary for transactions of this type and otherwise reasonably satisfactory to the Arranger, including, without limitation, estimates, forecasts, projections and other forward-looking financial information prepared by the Guarantor regarding the future consolidated performance of the Guarantor and its subsidiaries (including projections for the third and fourth quarters of the fiscal year 2014 and for the fiscal years 2015 and 2016 that include cause the Acquired Company and its subsidiaries in the form of such projections delivered to and approved by the Arranger on or ensure) that prior to the date hereof) (collectively, the “Projections”), and (d) the hosting, with the Arranger, of one or more meetings or conference calls with prospective Lenders at the request later of the Arranger. You further agree that prior toClosing Date and Syndication Date there will be no competing issues, offerings, placements, arrangements or promptly after, the announcement syndications of the Acquisition you will advise each of ▇▇▇▇▇’▇ Investors Service, Inc. (“▇▇▇▇▇’▇”), Standard & Poor’s Ratings Group, a division of McGraw Hill Financial, Inc. (“S&P”), and Fitch IBCA, Inc. (“Fitch”) of the Transactions, including the nature of the contemplated financing therefor. You also agree that, until the Syndication End Date, you and your subsidiaries will not issue, sell, offer, place or arrange, or engage in any discussions with respect to any of the foregoing, any debt securities or commercial bank or other credit facilities by or on behalf of you or your subsidiaries or the Acquired Company and its subsidiaries, being offered, placed or arranged (other than the Term A Facility) without the written consent of the GuarantorLead Arrangers, unless such issuance, offering, placement, arrangement or syndication could not reasonably be expected, in the Borrower or their respective subsidiariesreasonable discretion of the Lead Arrangers, other than to materially impair the syndication of the Term A Facility (i) the Bridge Loan Facility, it being understood that (ii) any New Bank Facility, (iii) the New Notes in an aggregate principal amount of up to $1,000,000,000, (ivA) indebtedness under the existing commitments available under the Existing Credit Agreement, (v) working capital and overdraft facilities provided to the Borrower and its subsidiaries incurred in the ordinary course of business of the Borrower and its subsidiaries and of the Acquired Company and its subsidiaries for capital expenditures, working capital, capital leases, purchase money debt and equipment financings, and (viB) commercial paper financings other indebtedness to be agreed among the Borrower and the Lead Arrangers will not be subject to this clause (vii)). For the avoidance of doubt, you will not be required to provide any information to the extent that the provision thereof would violate any law, rule or regulation, or any agreement containing an obligation of confidentiality binding on you, the Acquired Company or your or its respective affiliates; provided that (i) in the ordinary course event that you do not provide information in reliance on this sentence, you shall (x) provide notice to the Lead Arrangers that such information is being withheld pursuant to such law, rule or regulation or agreement and (y) use commercially reasonable efforts to obtain the relevant consents under such obligations of business, without confidentiality to allow for the prior written consent provision of such information and (ii) none of the Arrangerforegoing shall be construed to limit any of the conditions set forth in this Commitment Letter. For the avoidance of doubt, the only projections or pro forma or other financial statements that shall be required to be provided to the Lead Arrangers in connection with the syndication of the Term A Facility shall be those required to be delivered pursuant to the Certain Funds Provisions.
(b) The Lead Arrangers and/or one or more of their affiliates will exclusively manage all aspects of the syndication of the Term A Facility (in consultation with you), including decisions as to the selection and number of potential Lenders to be approached (with your consent not to be unreasonably withheld and excluding Disqualified Institutions), when they will be approached, whose commitments will be accepted (with your consent not to be unreasonably withheld and excluding Disqualified Institutions), any titles offered to the Lenders and the final allocations of the commitments and any related fees among the Lenders, and the Lead Arrangers will exclusively perform all functions and exercise all authority as is customarily performed and exercised in such capacities. Notwithstanding the Lead Arrangers’ right to syndicate the Term A Facility and receive commitments with respect thereto, unless otherwise agreed to by you, (i) the Commitment Parties shall not be relieved or released from their obligations hereunder (including their obligation to fund the Term A Facility on the Closing Date or the Interim Facilities on the Interim Closing Date) in connection with any syndication, assignment or participation in the Term A Facility, including their respective Commitment, until the initial funding under the Term A Facility has occurred on the Closing Date or the expiry of the Certain Funds Period, (ii) no assignment by either Commitment Party shall become effective with respect to all or any portion of the Commitment in respect of the Term A Facility until the initial funding of the Term A Facility on the Closing Date or in respect of the Interim Facilities until the initial funding of the Interim Facilities on the Interim Closing Date (as defined in the Interim Facilities Agreement), (iii) unless you and we agree in writing, the Commitment Parties will retain exclusive control over all rights and obligations with respect to their respective Commitment in respect of the Term A Facility and the Interim Facilities, including all rights with respect to consents, modifications, supplements, waivers and amendments, until the Closing Date has occurred (in respect of the Term A Facility) or the initial funding of the Interim Facilities on the Interim Closing Date (as defined in the Interim Facilities Agreement) has occurred and (iv) the Lead Arrangers will not syndicate to (a) any person identified by the Borrower by name in writing to the Lead Arrangers on or prior to the date hereof as a disqualified person, (b) any clearly identifiable affiliate (solely by virtue of its name) of any person referred to in clause (a) above (other than bona fide diversified debt funds) and (c) competitors (and such competitors’ sponsors and affiliates identified in writing or clearly identifiable solely on the basis of their names (other than bona fide diversified debt funds)) of the Borrower, separately identified in writing by you to us after the date hereof and prior to the syndication of the Term A Facility (collectively, the “Disqualified Institutions”). After the Closing Date, the list of Disqualified Institutions may be updated from time to time to include competitors (and such competitors’ sponsors and affiliates identified in writing or clearly identifiable solely on the basis of their names (other than bona fide diversified debt funds)) of the Borrower separately identified in writing to the Administrative Agent. No such identification after the date hereof shall apply retroactively to disqualify any person that has previously acquired an assignment or participation of an interest in any of the Term A Facility with respect to such amounts previously acquired. Without limiting your obligations to assist with the syndication efforts as set forth herein and notwithstanding anything to the contrary contained in this Commitment Letter or the Fee Letter, it is understood that the Commitment hereunder is not conditioned upon the syndication of, or receipt of commitments in respect of, the Term A Facility and in no event shall the successful completion of the syndication of the Term A Facility constitute a condition to the availability of the Term A Facility on the Closing Date or the Interim Facilities on the Interim Closing Date (as defined in the Interim Facilities Agreement), or the compliance with any of the other provisions set forth in clauses (i) through (vii) of the immediately preceding paragraph (other than the Certain Funds Provisions) shall not constitute a condition to the commitments hereunder or the funding of the Term A Facility on the Closing Date or any time thereafter or the Interim Facilities on the Interim Closing Date (as defined in the Interim Facilities Agreement).
Appears in 1 contract
Syndication. All aspects The Arranger shall commence syndication of the syndication Facilities to prospective Lenders (as such term is defined in each of any New Bank Facility, including, without limitation, timing, potential syndicate members to be approached (which shall be identified by the Arranger subject to your approval right as set forth below), titles, initial Exhibit A and final allocations and division of fees, shall be determined by the Arranger in consultation with you; provided that each potential syndicate member to be approached must be approved by you (such approval not to be unreasonably withheld, delayed or conditionedB) (it being agreed that each person that is currently a “Lender”, or hereafter becomes a “Lender” with your consent, under the Existing Credit Agreement is hereby approved by you). Citi reserves the right, prior to or after promptly upon the execution of definitive documentation for this Commitment Letter and, in connection with its syndication of the 364-Day Facility (but Facilities, the Arranger will select the Lenders after consultation with you provided that we agree not before (i) to syndicate the public announcement commitment under the Facilities or any portion thereof to certain banks, financial institutions and other institutional, investors and funds that have been specified in writing to the Commitment Party by you at any time prior to the date of delivery hereof (or, if after such date but prior to the Acquisition and (ii) commencement of general syndication, that are reasonably acceptable to the receipt of customary commitment advices from Lenders other than Citi for at least US$700,000,000 of the principal amount of the 364-Day FacilityCommitment Party), to syndicate all or a portion of its commitment hereunder to one or more Lenders pursuant to a syndication to be managed exclusively by the Arranger. The Arranger intends will lead the syndication, including determining the timing of all offers to commence its syndication efforts with respect prospective Lenders, any title of agent or similar designations or roles awarded to any Lender and the acceptance of commitments, the amounts offered and the compensation provided to each Lender from the amounts to be paid to the 364-Day Facility promptly upon your execution and delivery Arranger pursuant to us the terms of this Commitment Letter and the Fee Letter, and will commence in consultation with you determine the syndication final commitment allocations and notify you of any other New Bank Facility as such time as shall be mutually determined by you and by the Arrangerdeterminations. Until the closing under the definitive documentation for any New Bank Facility (such date, the “Syndication End Date” with respect to such New Bank Facility), you You agree to actively assist the Arranger in completing a syndication of such New Bank Facility that is reasonably satisfactory to us, including, without limitation, by promptly preparing and providing the Arranger with such information with respect to the Guarantor and its subsidiaries, in each case including financial information, as the Arranger may reasonably deem necessary to arrange and complete a successful syndication of any New Bank Facility. Such assistance shall include, (a) your using your use all commercially reasonable efforts to ensure that any the Arranger’s syndication efforts benefit materially from your the existing lending and investment banking relationshipsrelationships of you, the Borrower, the Acquired Business and your and their respective subsidiaries. To ensure an orderly and successful syndication of the Facilities, you agree that, until the date (the “Syndication Termination Date”) which is the earliest of (a) the termination by the Arranger of syndication of the Facilities, (b) 60 days following the Closing Date and (c) the “successful syndication” of the Facilities (as defined in the Fee Letter), you will not, and agree to use commercially reasonable efforts to ensure that the Acquired Business will not, syndicate or issue, attempt to syndicate or issue, announce or authorize the announcement of the syndication or issuance of, or engage in discussions concerning the syndication or issuance of, any debt facility or any debt security of you, the Acquired Business or the Borrower or any of your or their respective subsidiaries, including any renewal or refinancing of any existing debt facility or debt security (including the Existing Credit Agreement) in each case without the prior written consent of the Arranger (other than the Facilities, indebtedness permitted pursuant to the Acquisition Agreement, and purchase money indebtedness and capitalized lease obligations incurred in the ordinary course of business). You agree to, and agree to use commercially reasonable efforts to cause the Acquired Business to, cooperate with, and provide information reasonably required by, the Arranger in connection with all syndication efforts, including: (i) as soon as practicable after the date of this Commitment Letter, assist in the preparation of a customary information memorandum and other customary presentation materials (collectively, “Facilities Marketing Materials”) reasonably acceptable in form and content to the Arranger for use in bank meetings and other communications with prospective Lenders in connection with the syndication of the Facilities regarding the business, operations, financial projections and prospects of you, the Borrower and the Acquired Business and your and their respective subsidiaries, including without limitation the delivery of all information relating to the Transactions prepared by or on behalf of you, the Borrower or the Acquired Business that the Arranger deems reasonably necessary to complete the syndication of the Facilities; (ii) using commercially reasonable efforts to obtain from ▇▇▇▇▇’▇ Investor Service, Inc. (“Moody’s”) and Standard & Poor’s Ratings Services, a Standard & Poor’s Financial Services LLC business (“S&P”), prior to the launch of the general syndication, a corporate family rating from Moody’s, a corporate credit rating from S&P and a credit rating for each of the Facilities from each of Moody’s and S&P; (iii) arranging for direct communications at reasonable times and places, using reasonable methods (including telecommunications), with prospective Lenders, excluding Disqualified Lenders, in connection with the syndication of the Facilities (including without limitation direct contact between appropriate senior management, representatives and advisors of you, on the one hand, you and the proposed Lenders Borrower (and rating agencies identified by using commercially reasonable efforts to cause direct contact with appropriate senior management, representatives and advisors of the Arranger, on Acquired Business) and participation of such persons in such meetings); and (iv) hosting (including any preparations with respect thereto) with the other hand, Arranger at places and times and places reasonably requested by the Arranger one or more conference calls with prospective Lenders and, in connection with such conference calls, consulting with the Arranger with respect to the presentations to be made and consented making available appropriate senior management, representatives and advisors of you and the Borrower to rehearse such presentations prior to such conference calls, as reasonably requested by the Borrower (Arranger. You agree that the Arranger has the right to place advertisements in financial and other newspapers and journals at their own expense describing their services to you; provided that the Arranger will submit a copy of any such consent advertisement to you for your prior written approval, which approval will not to be unreasonably withheld, delayed withheld or conditioned), (c) assistance delayed. You further agree that any references to the Arranger or any of its affiliates made by you or your affiliates in the prompt preparation of a Confidential Information Memorandum for any New Bank Facility and advertisements or other marketing materials and information reasonably deemed necessary by used in connection with the Arranger Transactions are subject to complete a successful syndication the prior written approval of such New Bank Facility for delivery to potential syndicate members and participants, in each case in form and substance customary for transactions of this type and otherwise reasonably satisfactory to the Arranger, which approval shall not be unreasonably withheld or delayed. April 16, 2014 Platform Specialty Products Corporation You will be solely responsible for the contents of the Facilities Marketing Materials and all other information, documentation or other materials delivered to us in connection therewith and you acknowledge that we will be using and relying upon such information without independent verification thereof. You and the Borrower agree that such information regarding the Facilities and information provided by you and the Borrower or your or its representatives to the Arranger in connection with the Facilities (including, without limitation, estimatesdraft and execution versions of the Loan Documents, forecastsinformation packages, projections presentations and publicly filed financial statements) may be disseminated to prospective Lenders and other forwardpersons through one or more Intranet sites (including an IntraLinks or Syndtrak workspace) created for purposes of syndicating the Facilities or otherwise in accordance with the Arranger’s standard syndication practices (including hard copy and via electronic transmissions) which shall contain standard confidentiality undertakings. You understand that certain prospective Lenders (such Lenders, “Public Lenders”) may have personnel that do not wish to receive MNPI (as defined below). At the Arranger’s request, you agree to prepare an additional version of the Facilities Marketing Materials that does not contain material non-looking financial public information concerning you, the Borrower, the Acquired Business or your or their respective subsidiaries or affiliates or your or their respective securities for purposes of foreign and United States federal and state securities laws (collectively, “MNPI”) which is suitable to make available to Public Lenders. You acknowledge and agree that the following documents may be distributed to Public Lenders: (a) drafts and final versions of the Loan Documents; (b) administrative materials prepared by the Guarantor regarding Arranger for prospective Lenders (including without limitation a lender meeting invitation, allocations and funding and closing memoranda); and (c) term sheets and notification of changes in the future consolidated performance terms and conditions of the Guarantor and its subsidiaries (including projections for Facilities. Before distribution of any Facility Marketing Materials in connection with the third and fourth quarters syndication of the fiscal year 2014 and for the fiscal years 2015 and 2016 that include the Acquired Company and its subsidiaries in the form of such projections delivered to and approved by the Arranger on or prior to the date hereof) (collectively, the “Projections”), and (d) the hosting, with the Arranger, of one or more meetings or conference calls with prospective Lenders at the request of the Arranger. You further agree that prior to, or promptly after, the announcement of the Acquisition you will advise each of ▇▇▇▇▇’▇ Investors Service, Inc. (“▇▇▇▇▇’▇”), Standard & Poor’s Ratings Group, a division of McGraw Hill Financial, Inc. (“S&P”), and Fitch IBCA, Inc. (“Fitch”) of the Transactions, including the nature of the contemplated financing therefor. You also agree that, until the Syndication End Date, you and your subsidiaries will not issue, sell, offer, place or arrange, or engage in any discussions with respect to any of the foregoing, any debt securities or commercial bank or other credit facilities of the Guarantor, the Borrower or their respective subsidiaries, other than Facilities (i) to prospective Lenders that are not Public Lenders, you will provide us with a customary letter authorizing the Bridge Loan Facility, dissemination of such materials and (ii) any New Bank Facilityto prospective and existing Public Lenders, you will provide us with a customary letter authorizing the dissemination of information that does not contain MNPI (iiithe “Public Information Materials”) to Public Lenders and confirming the New Notes absence of MNPI therein. In addition, at the Arranger’s request, you will identify Public Information Materials by marking the same as “PUBLIC” and you agree that unless specifically labeled “PRIVATE — CONTAINS NON-PUBLIC INFORMATION,” no information, documentation or other data disseminated to prospective Lenders in an aggregate principal amount of up to $1,000,000,000, (iv) indebtedness under connection with the existing commitments available under the Existing Credit Agreement, (v) working capital and overdraft facilities provided to the Borrower and its subsidiaries in the ordinary course of business and (vi) commercial paper financings in the ordinary course of business, without the prior written consent syndication of the Arranger.Facilities, whether through an Internet site (including without limitation an IntraLinks or SyndTrak workspace), electronically, in presentations, at meetings or otherwise will contain MNPI. April 16, 2014 Platform Specialty Products Corporation
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (Platform Specialty Products Corp)
Syndication. All aspects The Arrangers may and reserve the right to, after the execution of the Credit Agreement, syndicate all or a part of the Initial Lenders’ Commitments to one or more financial institutions and/or lenders (collectively with the Initial Lenders, the “Lenders”) in one or more stages, and you acknowledge and agree that the commencement of syndication shall occur in the discretion of any New Bank Facility, including, without limitation, timing, potential syndicate members to be approached (which shall be identified by the Arranger subject to your approval right as set forth below), titles, initial and final allocations and division of fees, shall be determined by the Arranger Arrangers in consultation with you. The selection of the Lenders (a) from the date hereof until the earlier of 30 days following the date hereof and the date of the completion of Successful Syndication (as defined below) (the “Initial Syndication Period”), shall be made jointly by the Arrangers and the Borrower in accordance with the syndication plan (the “Syndication Plan”) for the Facilities agreed to by the Borrower and the Arrangers prior to the date hereof (provided, that such Syndication Plan shall include the pre-approval of any “Lender” under and as defined in the Existing Credit Agreement (as defined below)), (b) following the Initial Syndication Period, if and for so long as a Successful Syndication (as defined below) has not been achieved, shall be made by the Arrangers in consultation with the Borrower and (c) following the achievement of a Successful Syndication, any further assignments of Commitments shall be in accordance with Section 13.1 of the Credit Agreement. The Arrangers will lead the syndication, including determining the timing of all offers to potential Lenders, any title of agent or similar designations or roles awarded to any Lender (subject, however, to your rights to appoint Additional Agents as provided above) and the acceptance of commitments, the amounts offered, the final commitment allocations and the compensation provided to each Lender from the amounts to be paid to the Initial Financing Parties pursuant to the terms of the Credit Agreement and this Fee and Syndication Letter; provided provided, that (x) during the Initial Syndication Period, all such determinations shall be made jointly by the Arrangers and the Borrower in accordance with the Syndication Plan and (y) following the Initial Syndication Period until the achievement of a Successful Syndication, such determinations shall be made by the Arrangers in consultation with the Borrower. The Commitments of the Initial Lenders under the Credit Agreement shall be reduced on a pro rata basis (or allocated between them as they may otherwise determine) pound-for-pound as and when Commitments for the Facilities are received from Lenders to the extent that each potential syndicate member such Lender becomes a party to be approached must be the Credit Agreement as a “Lender” thereunder, and you agree, promptly upon the Arrangers’ request, to execute an Assignment and Assumption Agreement with respect to each Lender that is selected in accordance with the foregoing provisions of this Section 2; provided, further, however, that in the case of any syndication of a portion of the Commitments as set forth above other than to a Lender which either (x) is set forth in the Syndication Plan or the Borrower has otherwise approved by you (such approval not to be unreasonably withheld, delayed or conditioned; provided, that during the Certain Funds Period such approval shall be at the Borrower’s sole discretion) or (it being agreed that each person y) is a commercial or investment bank that is currently a “Lender”, incorporated or hereafter becomes a “Lender” with your consent, organized under the Existing Credit Agreement is hereby approved by you). Citi reserves the right, prior to or after the execution laws of definitive documentation for the 364-Day Facility (but not before (i) the public announcement by you one of the Acquisition and (ii) the receipt of customary commitment advices from Lenders other than Citi for at least US$700,000,000 of the principal amount of the 364-Day Facility), to syndicate all or a portion of its commitment hereunder to one or more Lenders pursuant to a syndication to be managed exclusively by the Arranger. The Arranger intends to commence its syndication efforts with respect to the 364-Day Facility promptly upon your execution and delivery to us of this Commitment Letter, and will commence the syndication of any other New Bank Facility as such time as shall be mutually determined by you and by the Arranger. Until the closing under the definitive documentation for any New Bank Facility (such date, the “Syndication End Date” with respect to such New Bank Facility), you agree to actively assist the Arranger in completing a syndication of such New Bank Facility that is reasonably satisfactory to us, including, without limitation, by promptly preparing and providing the Arranger with such information with respect to the Guarantor and its subsidiaries, in each case including financial information, as the Arranger may reasonably deem necessary to arrange and complete a successful syndication of any New Bank Facility. Such assistance shall include, (a) your using your commercially reasonable efforts to ensure that any syndication efforts benefit materially from your existing lending and investment banking relationships, (b) direct contact between senior management, representatives and advisors of you, on the one hand, and the proposed Lenders and rating agencies identified by the Arranger, on the other hand, at times and places reasonably requested by the Arranger and consented to by the Borrower (such consent not to be unreasonably withheld, delayed or conditioned), (c) assistance by you applicable jurisdictions set forth in the prompt preparation of a Confidential Information Memorandum for any New Bank Facility Syndication Plan and other marketing materials and information reasonably deemed necessary whose long term senior unsecured debt is rated investment grade by the Arranger to complete a successful syndication of such New Bank Facility for delivery to potential syndicate members and participants, in each case in form and substance customary for transactions of this type and otherwise reasonably satisfactory to the Arranger, including, without limitation, estimates, forecasts, projections and other forward-looking financial information prepared by the Guarantor regarding the future consolidated performance of the Guarantor and its subsidiaries (including projections for the third and fourth quarters of the fiscal year 2014 and for the fiscal years 2015 and 2016 that include the Acquired Company and its subsidiaries in the form of such projections delivered to and approved by the Arranger on or prior to the date hereof) (collectively, the “Projections”), and (d) the hosting, with the Arranger, of one or more meetings or conference calls with prospective Lenders at the request of the Arranger. You further agree that prior to, or promptly after, the announcement of the Acquisition you will advise each of ▇▇▇▇▇’▇ Investors ServiceInvestment Services, Inc. and S&P Global Ratings upon first becoming party to the Credit Agreement, the Initial Lenders shall (“▇▇▇▇▇’▇”), Standard & Poor’s Ratings Group, a division of McGraw Hill Financial, Inc. on terms consistent with Section 13.1(3) (“S&P”), and Fitch IBCA, Inc. (“Fitch”Participation) of the TransactionsCredit Agreement) not be relieved, including released or novated from their respective obligations under the nature of the contemplated financing therefor. You also agree that, until the Syndication End Date, you and your subsidiaries will not issue, sell, offer, place or arrange, or engage in any discussions Credit Agreement with respect to any such portion of the foregoing, any debt securities or commercial bank or other credit facilities Initial Lenders’ respective Commitments until the funding of all Advances and the Guarantor, Certain Funds Period has terminated. The Borrower agrees to use commercially reasonable efforts to ensure that the Borrower or their respective subsidiaries, other than (i) the Bridge Loan Facility, (ii) any New Bank Facility, (iii) the New Notes in an aggregate principal amount of up to $1,000,000,000, (iv) indebtedness under Arrangers’ syndication efforts benefit from the existing commitments available under the Existing Credit Agreement, (v) working capital and overdraft facilities provided to lending relationships of the Borrower and its subsidiaries in subsidiaries. To facilitate an orderly and successful syndication, you agree that until the ordinary course earliest of business (x) the termination of the syndication by the Arrangers, (y) the date a Successful Syndication is achieved and (viz) 60 days following the Closing Date (such earliest date, the “Syndication Date”), the Borrower will not, and will ensure that each of its subsidiaries shall not, syndicate or issue, attempt to syndicate or issue, announce or authorize the announcement of the syndication or issuance of any debt facility or any debt or equity security of the Borrower or any of its subsidiaries that would reasonably be expected to materially impair the syndication of the Facilities as reasonably determined by the Arrangers, including any renewals or refinancings of any existing debt facility or debt security (other than (a) the Facilities, (b) the issuance by you of unsecured debt securities and preferred, common and/or other equity or equity-linked securities for the purpose of financing the Target Acquisition and the other Transactions in lieu of all or a portion of the Bridge Facilities or to refinance the Bridge Facilities (collectively, the “Permanent Financing”), (c) commercial paper financings in the ordinary course of business, without the prior written consent of the Arranger.issuance,
Appears in 1 contract
Sources: Credit Agreement
Syndication. All aspects The Lead Arrangers intend to commence syndication of the syndication of any New Bank FacilityTerm Facility promptly following the date hereof to prospective lenders (together with the Initial Term Lenders, including, without limitation, timing, potential syndicate members to be approached (which shall be identified by the Arranger subject to your approval right as set forth below), titles, initial and final allocations and division of fees, shall be determined by the Arranger “Lenders”) in consultation with you; provided that each potential syndicate member you and until the earlier to be approached must be approved by occur of (a) a Successful Syndication (as defined in the Amended and Restated Fee Letter among us and you dated the date hereof (such approval not to be unreasonably withheld, delayed or conditionedthe “Amended and Restated Fee Letter”)) and (it being agreed that each person that is currently a “Lender”, or hereafter becomes a “Lender” with your consent, under b) 60 days following the Existing Credit Agreement is hereby approved by you). Citi reserves the right, prior to or after the execution of definitive documentation for the 364-Day Facility (but not before (i) the public announcement by you funding of the Acquisition and (ii) the receipt of customary commitment advices from Lenders other than Citi for at least US$700,000,000 of the principal amount of the 364-Day Facility), to syndicate all or a portion of its commitment hereunder to one or more Lenders pursuant to a syndication to be managed exclusively by the Arranger. The Arranger intends to commence its syndication efforts with respect to the 364-Day Facility promptly upon your execution and delivery to us of this Commitment Letter, and will commence the syndication of any other New Bank Facility as such time as shall be mutually determined by you and by the Arranger. Until the closing under the definitive documentation for any New Bank Term Facility (such earlier date, the “Syndication End Date” with respect to such New Bank Facility”), you agree to actively use commercially reasonable efforts to assist the Arranger Lead Arrangers in completing forming a syndicate for the Term Facility reasonably acceptable to us and you; provided that such syndication shall not relieve the Commitment Parties of such New Bank their respective obligations set forth herein (including their obligations to fund the Term Facility that is reasonably satisfactory to uson the Closing Date on the terms and conditions set forth in the Commitment Letter) and, includingunless you agree in writing, without limitation, by promptly preparing the Commitment Parties shall retain exclusive control over all rights and providing the Arranger with such information obligations with respect to their respective commitments, including all rights with respect to consents, modifications, waivers and amendments, until after the Guarantor and its subsidiaries, in each case including financial information, as initial funding of the Arranger may reasonably deem necessary to arrange and complete a successful syndication of any New Bank FacilityTerm Facility on the Closing Date has occurred. Such assistance syndication will be accomplished by a variety of means, including direct contact during the syndication for the Term Facility between senior management and advisors of the Borrower and the prospective lenders, which shall includebe reasonably acceptable to you. To assist the Lead Arrangers in their syndication efforts, (a) your using you hereby agree to use your commercially reasonable efforts (a) to ensure that any syndication efforts benefit materially from provide and cause your existing lending and investment banking relationships, (b) direct contact between senior management, representatives and advisors of you, on to provide the one hand, Lead Arrangers and the proposed Lenders and rating agencies identified by the Arranger, on the other hand, at times and places reasonably requested by the Arranger and consented to by the Borrower (such consent not to be unreasonably withheld, delayed or conditioned), (c) assistance by you in the prompt preparation of a Confidential Information Memorandum for any New Bank Facility and other marketing materials and syndicate members upon request with all customary information reasonably deemed necessary by the Arranger Lead Arrangers to complete syndication, including but not limited to information and evaluations prepared by you, your advisors or on your behalf relating to the Transactions; (b) to assist the Lead Arrangers upon request in the preparation of customary marketing materials (the “Marketing Materials”), including a successful syndication of such New Bank customary information memorandum with respect to the Term Facility for delivery to potential syndicate members and participants, in each case in form and substance customary for transactions of this type and otherwise reasonably satisfactory to the ArrangerLead Arrangers, includingto be used in connection with the syndication of the Term Facility (the “Confidential Information Memorandum”); (c) upon reasonable advanced notice to make available your senior officers and representatives, without limitation, estimates, forecasts, projections and other forwardto make telephonic or in-looking financial information prepared by the Guarantor person presentations regarding the future consolidated performance business and prospects of the Guarantor Borrower and its subsidiaries (including projections for the third and fourth quarters of the fiscal year 2014 and for the fiscal years 2015 and 2016 that include and/or the Acquired Company and its subsidiaries in the form of such projections delivered to and approved by the Arranger on or prior to the date hereof) (collectively, the “Projections”), and (d) the hosting, with the Arranger, of Business at one or more meetings or conference calls with prospective Lenders of proposed lenders at such reasonable times and in such reasonable places (as the request case may be) to be mutually agreed upon; (d) to obtain, prior to the commencement of syndication, a credit rating for the Arranger. You further agree that prior toTerm Facility and update the corporate and corporate family ratings, or promptly afteras applicable, for the announcement of the Acquisition you will advise Borrower from each of Standard & Poor’s Ratings Services and ▇▇▇▇▇’▇ Investors Service, Inc. (“▇▇▇▇▇’▇”)in each case, Standard & Poor’s Ratings Group, a division of McGraw Hill Financial, Inc. (“S&P”), and Fitch IBCA, Inc. (“Fitch”) of taking into account the Transactions, including ) and participate in a customary manner in the nature process of the contemplated financing therefor. You also agree that, until securing such ratings; (e) prior to the Syndication End Date, you and your subsidiaries will not issueto ensure that there shall be no competing issues, sellofferings, offer, place placements or arrange, or engage in any discussions with respect to any arrangements of the foregoing, any debt securities or commercial bank or other credit facilities by or on behalf of the Guarantor, the Borrower or any of its subsidiaries being offered, placed or arranged without the consent of the Lead Arrangers, if such issuance, offering, placement or arrangement would reasonably be expected to materially impair the primary syndication of the Term Facility; and (f) to ensure that the Lead Arrangers’ syndication efforts benefit from the existing lending and investment banking relationships of the Borrower and its subsidiaries. Notwithstanding the foregoing in this Section 3 and our right to syndicate our commitment hereunder, it is agreed that the success of any syndication of and receipt of commitments in respect of all or any portion of our commitments hereunder prior to the funding of the Term Facility shall not be a condition to our commitments hereunder. Subject to the terms hereof and limitations and your consent rights set forth herein, the Lead Arrangers will lead the syndication and will manage, in consultation with you, all aspects of the syndication, including, without limitation, selection of lenders, determination of when the Lead Arrangers will approach potential lenders and the time of acceptance of the lenders’ commitments, any naming rights, the final allocations of the commitments among the lenders and the amount and distribution of fees among the lenders. To assist the Lead Arrangers in their syndication efforts, subject to the limitations in the preceding paragraph, upon the request of the Lead Arrangers, you agree to use commercially reasonable efforts to promptly to prepare and provide to the Lead Arrangers the Marketing Materials with respect to you, and your subsidiaries and the Transactions, including annual projections of the Borrower (giving pro forma effect to the Transactions) through 2021 with respect to income statements and balance sheets (the “Projections”), that are not otherwise in any Lead Arranger’s possession and that the Lead Arrangers reasonably requests in connection with the structuring, arrangement and syndication of the Term Facility. At the request of the Commitment Parties, you agree to assist in the preparation of a version of the Marketing Materials (a “Public Version”) consisting exclusively of information with respect to you and your affiliates, the Acquired Business and the Acquisition that is either publicly available or not material with respect to you and your affiliates, the Seller and its subsidiaries, any of your or their respective subsidiariessecurities or the Acquisition for purposes of United States federal and state securities laws and Canadian securities laws (such information, “Non-MNPI”). Such Public Versions, together with any other than information prepared by you or the Seller or your or its affiliates or representatives and conspicuously marked “Public” (collectively, the “Public Information”), which at a minimum means that the word “Public” will appear prominently on the first page of any such information, may be distributed by us to prospective Lenders who have advised us that they wish to receive only Non-MNPI (“Public Side Lenders”). You acknowledge and agree that, in addition to Public Information and unless you promptly notify us otherwise, (a) term sheets, drafts and final definitive documentation with respect to the Term Facility, (b) administrative materials prepared by the Commitment Parties for prospective Lenders (such as a lender meeting invitation, allocations and funding and closing memoranda) and (c) notifications of changes in the terms of the Term Facility may be distributed to Public Side Lenders. It is understood that in connection with your assistance described above, customary authorization letters will be included in the Marketing Materials that (i) authorize the Bridge Loan Facilitydistribution thereof to prospective Lenders, (ii) any New Bank Facility, represent that the Public Version of the Marketing Materials only includes non-MNPI and (iii) exculpate you, the New Notes in an aggregate principal amount of up Seller and us and your, our and their respective affiliates with respect to $1,000,000,000, (iv) indebtedness under the existing commitments available under the Existing Credit Agreement, (v) working capital and overdraft facilities provided any liability related to the Borrower and its subsidiaries misuse (or, in the ordinary course case of business us and (viour affiliates, use) commercial paper financings of the contents of the Marketing Materials or related materials by the recipients thereof and, in the ordinary course case of businessus, without any liability with respect to the prior written consent contents of the Arrangersuch Marketing Materials or related materials.
Appears in 1 contract
Sources: Commitment Letter (Open Text Corp)
Syndication. All aspects Subject to Section 9 of the syndication of any New Bank Facilitythis Commitment Letter, including, without limitation, timing, potential syndicate members to be approached (which shall be identified by the Arranger subject to your approval right as set forth below), titles, initial and final allocations and division of fees, shall be determined by the Arranger in consultation with you; provided that each potential syndicate member to be approached must be approved by you (such approval not to be unreasonably withheld, delayed or conditioned) (it being agreed that each person that is currently a “Lender”, or hereafter becomes a “Lender” with your consent, under the Existing Credit Agreement is hereby approved by you). Citi reserves we reserve the right, prior to or and/or after the execution of definitive documentation for the 364-Day Facility Facilities (but not before (i) the public announcement which will be drafted by you of the Acquisition and (ii) the receipt of customary commitment advices from Lenders other than Citi for at least US$700,000,000 of the principal amount of the 364-Day Facilityyour counsel), to syndicate all or a portion of its commitment hereunder to one or more Lenders pursuant to a syndication to be managed exclusively by the Arranger. The Arranger intends to commence its syndication efforts Initial Lenders’ commitments with respect to the 364-Day Facilities to a group of banks, financial institutions and other institutional lenders (together with the Initial Lenders and the Additional Initial Lenders, the “Lenders”) identified by us in consultation with you and subject to your consent (such consent not to be unreasonably withheld or delayed). Notwithstanding anything to the contrary contained herein, any resales or assignments of the First Lien Facilities or the Second Lien Term Facility by any Lender (including the Initial Lenders) on or following the date of the initial borrowings under the Facilities shall be governed by the provisions of the First Lien Facilities or the Second Lien Term Facility, as applicable, as set forth in the Term Sheets. Each Lender further agrees not to syndicate any of the commitments with respect to the Facilities to certain financial institutions and other entities that have been specified by you in writing to the Lead Arrangers on or prior to the date hereof or competitors of the Target and its subsidiaries each specified by you in writing to the Lead Arrangers on or prior to the date hereof (it being understood that additional bona fide competitors of the Target and its subsidiaries may be designated in writing by you following the earlier to occur of a Successful Syndication (as defined in the Fee Letter) and 60 days after the date of the consummation of the Acquired Business Merger (the “Closing Date”)) (collectively, the “Disqualified Lenders”); provided that, for the avoidance of doubt, any such additional designation shall not apply retroactively to any prior assignment to any Lender permitted hereunder at the time of such assignment). We intend to commence syndication efforts promptly upon your the execution and delivery to us of this Commitment Letter, and will commence the syndication of any other New Bank Facility as such time as shall be mutually determined by you and by the Arranger. Until the closing under the definitive documentation for any New Bank Facility (such date, the “Syndication End Date” with respect to such New Bank Facility), you agree to actively assist the Arranger us in completing a syndication of such New Bank Facility that is reasonably satisfactory to usus and you until the earlier to occur of a Successful Syndication and 60 days after the Closing Date. During such period, including, without limitation, by promptly preparing and providing the Arranger with such information with respect to the Guarantor and its subsidiaries, in each case including financial information, as the Arranger may reasonably deem necessary to arrange and complete a successful syndication of any New Bank Facility. Such assistance shall include, include (a) your using your commercially reasonable efforts to ensure that any syndication efforts benefit materially from Sponsor’s and your existing lending and investment banking relationshipsrelationships and, to the extent practical and appropriate, the existing lending and investment banking relationships of the Target, (b) direct contact between appropriate members of senior management, certain representatives and certain non-legal advisors of youyou (and, on subject always to the one handextent expressly provided in the Merger Agreement, your using commercially reasonable efforts to cause direct contact between appropriate members of senior management, certain representatives and certain non-legal advisors of the Target) and the proposed Lenders and rating agencies identified by the ArrangerLenders, on the other hand, in all such cases at times and places reasonably requested by the Arranger and consented to by the Borrower (such consent not to be unreasonably withheld, delayed or conditioned)mutually agreed upon, (c) assistance by you and the Sponsor (and, subject always to the extent expressly provided in the prompt Merger Agreement, your using commercially reasonable efforts to cause the assistance by the Target) in the preparation of a customary confidential information memorandum (“Confidential Information Memorandum Memorandum”) for any New Bank each of the Facilities and other customary marketing materials to be used in connection with the syndication of the Facilities, (d) your using commercially reasonable efforts to obtain (which use of commercially reasonable efforts shall not require you to change the proposed terms of the Facilities), upon our request, prior to the commencement of general syndication of the Facilities, (i) public ratings for the First Lien Facilities and the Second Lien Term Facility and other marketing materials (ii) a public corporate credit rating and information reasonably deemed necessary by public corporate family rating in respect of the Arranger to complete a successful syndication of such New Bank Facility for delivery to potential syndicate members and participantsBorrower, in each case in form and substance customary for transactions of this type and otherwise reasonably satisfactory to the Arrangercase, including, without limitation, estimates, forecasts, projections and other forward-looking financial information prepared by the Guarantor regarding the future consolidated performance of the Guarantor and its subsidiaries (including projections for the third and fourth quarters of the fiscal year 2014 and for the fiscal years 2015 and 2016 that include the Acquired Company and its subsidiaries in the form of such projections delivered to and approved by the Arranger on or prior to the date hereof) (collectively, the “Projections”), and (d) the hosting, with the Arranger, of one or more meetings or conference calls with prospective Lenders at the request of the Arranger. You further agree that prior to, or promptly after, the announcement of the Acquisition you will advise from each of Standard & Poor’s Ratings Services (“S&P”) and ▇▇▇▇▇’▇ Investors Service, Inc. (“▇▇▇▇▇’▇Moody’s”), Standard & Poor’s Ratings Grouprespectively, and (e) the hosting, with the Arrangers, of up to three meetings of prospective Lenders at times and locations mutually agreed upon. Without limiting your obligations to assist with syndication efforts as set forth above, neither the receipt of such ratings nor the commencement, conduct or completion of such syndication is a division condition to the commitments or the funding of McGraw Hill Financialthe Facilities on the Closing Date. You agree, Inc. at the request of the Arrangers, to assist us in the preparation of a version of the Confidential Information Memorandum and other customary marketing materials to be used in connection with the syndication of the Facilities, consisting exclusively of information that is either publicly available or not material (or, in the case of a company that is not a public reporting company, information of a type that would reasonably be expected to be publicly available if such company were a public reporting company) with respect to the Target, Coin Holdings, the Borrower and their subsidiaries, or any of their respective securities for purposes of United States Federal and state securities laws (all such information and documentation being “S&PPublic Lender Information”). Any information and documentation that is not Public Lender Information is referred to herein as “Private Lender Information”. It is understood that, in connection with your assistance described above, customary authorization letters, consistent with the terms of this Commitment Letter, will be included in any information package and Fitch IBCApresentation whereby you authorize the distribution of such information to prospective Lenders containing a representation substantially consistent with the first sentence of Section 4 of this Commitment Letter and a representation by you to the Financial Institutions that the Public Lender Information does not include material non-public information (or, Inc. (“Fitch”in the case of a company that is not a public reporting company, material information of a type that would not reasonably be expected to be publicly available if such company were a public reporting company) about the Target, Coin Holdings, the Borrower and their respective subsidiaries, or their securities and exculpating us with respect to any liability related to the use of the Transactionscontents of such Public Lender Information or any related marketing material by the recipients thereof. You acknowledge and agree that, subject to the confidentiality and other provisions of Section 12 of this Commitment Letter, the following documents may be distributed to potential Lenders wishing to receive only Public Lender Information (unless you or your counsel promptly notify us (including by email) otherwise and provided that you and your counsel have been given a reasonable opportunity to review such documents and comply with applicable securities law disclosure obligations): (a) term sheets and drafts that are not marked confidential and final definitive documentation with respect to the nature Facilities; provided that, for the avoidance of doubt, no such term sheets may be distributed to any potential Lenders unless approved by us (such approval not to be unreasonably withheld); (b) administrative materials prepared by the Arrangers for prospective Lenders (such as a lender meeting invitation, allocations and funding and closing memoranda); and (c) notification of changes in the previously disclosed terms of the contemplated financing thereforFacilities. You also agree thatto use commercially reasonable efforts to identify that portion of any other Information (as defined below) or Projections (as defined below) (collectively, until the Syndication End Date“Borrower Materials”) to be distributed to “public side” lenders (i.e., you and your subsidiaries will lenders that do not issuewish to receive material non-public information (or, sellin the case of a company that is not a public reporting company, offer, place or arrange, or engage in any discussions material information of a type that would not reasonably be expected to be publicly available if such company were a public reporting company) with respect to the Target, Coin Holdings, the Borrower and their subsidiaries, or any of their respective securities), including by clearly and conspicuously marking such materials “PUBLIC” which, at a minimum, shall mean that the foregoingword “PUBLIC” shall appear prominently on the first page thereof. By marking Borrower Materials “PUBLIC”, you shall be deemed to have authorized the Arrangers and the proposed Lenders to treat such Borrower Materials as not containing any material non-public information (or, in the case of a company that is not a public reporting company, material information of a type that would not reasonably be expected to be publicly available if such company were a public reporting company) with respect to the Target, Coin Holdings, the Borrower and their subsidiaries, or any of their respective securities for purposes of United States Federal and state securities laws (it being understood that you shall not be under any obligation to ▇▇▇▇ the Borrower Materials “PUBLIC”). You hereby acknowledge and agree that any Borrower Materials that are not marked “PUBLIC” shall be treated as Private Lender Information by the Arrangers. The Lead Arrangers will manage all aspects of any syndication in consultation with you, including (in each case subject to the provisions set forth in this Commitment Letter), decisions as to the selection of institutions to be approached and when they will be approached, when their commitments will be accepted, which institutions will participate, the allocation of the commitments among the Lenders, any naming rights and the amount and distribution of fees among the Lenders. To assist the Arrangers in their syndication efforts, you agree promptly to prepare and provide (and, subject always to the extent provided in the Merger Agreement, to use commercially reasonable efforts to cause the Target to provide) to the Arrangers all customary information reasonably requested by the Lead Arrangers that is reasonably available to you with respect to Coin Holdings, the Borrower and their respective subsidiaries and the Transactions (as defined in the Transaction Description), including customary financial information and projections (such projections, the “Projections”), as the Lead Arrangers may reasonably request in connection with the structuring, arrangement and syndication of the Facilities. Notwithstanding anything herein to the contrary, the only financial statements that shall be required to be provided to the Arrangers as a condition precedent to closing shall be those required to be delivered pursuant to Exhibit D hereof. You hereby agree that, prior to the earlier of a Successful Syndication and 60 days after the Closing Date, there shall be no competing issues, offerings or placements of debt securities or commercial bank or other credit facilities by or on behalf of the Guarantor, you or the Borrower or their respective your or the Borrower’s subsidiaries, and you will use commercially reasonable efforts to ensure that there are no competing issues, offerings or placements of debt securities or commercial bank or other credit facilities by or on behalf of the Target, being offered, placed or arranged (other than (i) the Bridge Loan FacilityFacilities, (ii) any New Bank Facility, (iii) the New Notes in an aggregate principal amount of up to $1,000,000,000, (iv) indebtedness under the existing commitments available under the Existing Credit Agreement, (v) working capital and overdraft facilities provided debt incurred pursuant to the Borrower Redbox Business Debt Commitment Letter (as defined in the Merger Agreement) or any indebtedness of the Target and its subsidiaries permitted to be incurred or outstanding pursuant to the Merger Agreement and other indebtedness incurred in the ordinary course of business of the Target and (vi) commercial paper financings in the ordinary course of businessits subsidiaries for capital expenditures and working capital purposes), without the prior written consent of the ArrangerLead Arrangers, if such issuance, offering, placement or arrangement would reasonably be expected to materially impair the primary syndication of the Facilities.
Appears in 1 contract
Sources: Additional Initial Lender Agreement (Aspen Merger Sub, Inc.)
Syndication. All aspects (a) The Lead Arrangers intend and reserve the right, both prior to and after the Closing Date, to secure commitments for the Term A Facility from a syndicate of the syndication of any New Bank Facilitybanks, includingfinancial institutions and other entities, without limitationin each case, timingother than Disqualified Institutions (as defined below), potential syndicate members to be approached (which shall be identified by the Arranger subject to your approval right as set forth below), titles, initial and final allocations and division of fees, shall be determined by the Arranger Lead Arrangers in consultation with you; provided that each potential syndicate member you and reasonably acceptable to be approached must be approved by you (with such approval consent not to be unreasonably withheld, delayed withheld or conditioneddelayed) (it being agreed that each person that is currently a such banks, financial institutions and other entities committing to the Term A Facility, including ▇▇▇▇▇ Fargo Bank, Bank of America and TD Bank, the “LenderLenders”, or hereafter becomes a “Lender” with your consent, under ) upon the Existing Credit Agreement is hereby approved by you)terms and subject to the conditions set forth in this Commitment Letter. Citi reserves Until the right, prior to or after the execution earlier of definitive documentation for the 364-Day Facility (but not before (i) the public announcement by you of date that a Successful Syndication (as defined in the Acquisition Fee Letter) is achieved and (ii) the receipt of customary commitment advices from Lenders other than Citi for at least US$700,000,000 of date that is 60 days following the principal amount of the 364-Day Facility), to syndicate all or a portion of its commitment hereunder to one or more Lenders pursuant to a syndication to be managed exclusively by the Arranger. The Arranger intends to commence its syndication efforts with respect to the 364-Day Facility promptly upon your execution and delivery to us of this Commitment Letter, and will commence the syndication of any other New Bank Facility as such time as shall be mutually determined by you and by the Arranger. Until the closing under the definitive documentation for any New Bank Facility Closing Date (such date, the “Syndication End Date” with respect to such New Bank Facility”), you agree to assist, and will use commercially reasonable efforts to cause appropriate members of management of the Acquired Company to assist, us actively assist the Arranger in completing achieving a syndication of such New Bank the Term A Facility that is satisfactory to us and you. To assist us in our syndication efforts, you agree that you will, and will cause your representatives and advisors to, and will use commercially reasonable efforts to cause appropriate remaining members of management of the Acquired Company and its representatives and advisors to, reasonably (i) provide promptly to the Commitment Parties and the other Lenders upon reasonable request all customary information reasonably deemed necessary by the Lead Arrangers to assist the Lead Arrangers and each Lender in their evaluation of the Transactions and to complete the syndication, (ii) make your senior management and appropriate members of management of the Acquired Company available to prospective Lenders on reasonable prior notice and at reasonable times and places mutually agreed upon, (iii) host, with the Lead Arrangers, one or more virtual meetings and/or calls with prospective Lenders at mutually agreed times and locations, (iv) assist, and cause your affiliates and advisors to assist, the Lead Arrangers in the preparation of one or more confidential information memoranda and other marketing materials, including any financial statements required under the Certain Funds Provisions, in form and substance reasonably satisfactory to us, including, without limitation, by promptly preparing and providing the Arranger Lead Arrangers to be used in connection with such information with respect to the Guarantor and its subsidiaries, in each case including financial information, as the Arranger may reasonably deem necessary to arrange and complete a successful syndication of any New Bank Facility. Such assistance shall includesyndication, (av) your using your use commercially reasonable efforts to ensure that any the syndication efforts of the Lead Arrangers benefit materially from your the existing lending relationships of the Borrower and investment banking relationshipsthe Acquired Company, (bvi) direct contact between senior management, representatives [reserved] and advisors of you, on the one hand, (vii) ensure (and the proposed Lenders and rating agencies identified by the Arranger, on the other hand, at times and places reasonably requested by the Arranger and consented use your commercially reasonable efforts to by the Borrower (such consent not to be unreasonably withheld, delayed or conditioned), (c) assistance by you in the prompt preparation of a Confidential Information Memorandum for any New Bank Facility and other marketing materials and information reasonably deemed necessary by the Arranger to complete a successful syndication of such New Bank Facility for delivery to potential syndicate members and participants, in each case in form and substance customary for transactions of this type and otherwise reasonably satisfactory to the Arranger, including, without limitation, estimates, forecasts, projections and other forward-looking financial information prepared by the Guarantor regarding the future consolidated performance of the Guarantor and its subsidiaries (including projections for the third and fourth quarters of the fiscal year 2014 and for the fiscal years 2015 and 2016 that include cause the Acquired Company and its subsidiaries in the form of such projections delivered to and approved by the Arranger on or ensure) that prior to the date hereof) (collectively, the “Projections”), and (d) the hosting, with the Arranger, of one or more meetings or conference calls with prospective Lenders at the request later of the Arranger. You further agree that prior toClosing Date and Syndication Date there will be no competing issues, offerings, placements, arrangements or promptly after, the announcement syndications of the Acquisition you will advise each of ▇▇▇▇▇’▇ Investors Service, Inc. (“▇▇▇▇▇’▇”), Standard & Poor’s Ratings Group, a division of McGraw Hill Financial, Inc. (“S&P”), and Fitch IBCA, Inc. (“Fitch”) of the Transactions, including the nature of the contemplated financing therefor. You also agree that, until the Syndication End Date, you and your subsidiaries will not issue, sell, offer, place or arrange, or engage in any discussions with respect to any of the foregoing, any debt securities or commercial bank or other credit facilities by or on behalf of you or your subsidiaries or the Acquired Company and its subsidiaries, being offered, placed or arranged (other than the Term A Facility) without the written consent of the GuarantorLead Arrangers, unless such issuance, offering, placement, arrangement or syndication could not reasonably be expected, in the Borrower or their respective subsidiariesreasonable discretion of the Lead Arrangers, other than to materially impair the syndication of the Term A Facility (i) the Bridge Loan Facility, it being understood that (ii) any New Bank Facility, (iii) the New Notes in an aggregate principal amount of up to $1,000,000,000, (ivA) indebtedness under the existing commitments available under the Existing Credit Agreement, (v) working capital and overdraft facilities provided to the Borrower and its subsidiaries incurred in the ordinary course of business of the Borrower and its subsidiaries and of the Acquired Company and its subsidiaries for capital expenditures, working capital, capital leases, purchase money debt and equipment financings, and (viB) commercial paper financings other indebtedness to be agreed among the Borrower and the Lead Arrangers will not be subject to this clause (vii)). For the avoidance of doubt, you will not be required to provide any information to the extent that the provision thereof would violate any law, rule or regulation, or any agreement containing an obligation of confidentiality binding on you, the Acquired Company or your or its respective affiliates; provided that (i) in the ordinary course event that you do not provide information in reliance on this sentence, you shall (x) provide notice to the Lead Arrangers that such information is being withheld pursuant to such law, rule or regulation or agreement and (y) use commercially reasonable efforts to obtain the relevant consents under such obligations of business, without confidentiality to allow for the prior written consent provision of such information and (ii) none of the Arrangerforegoing shall be construed to limit any of the conditions set forth in this Commitment Letter. For the avoidance of doubt, the only projections or pro forma or other financial statements that shall be required to be provided to the Lead Arrangers in connection with the syndication of the Term A Facility shall be those required to be delivered pursuant to the Certain Funds Provisions.
(b) The Lead Arrangers and/or one or more of their affiliates will exclusively manage all aspects of the syndication of the Term A Facility (in consultation with you), including decisions as to the selection and number of potential Lenders to be approached (with your consent not to be unreasonably withheld and excluding Disqualified Institutions), when they will be approached, whose commitments will be accepted (with your consent not to be unreasonably withheld and excluding Disqualified Institutions), any titles offered to the Lenders and the final allocations of the commitments and any related fees among the Lenders, and the Lead Arrangers will exclusively perform all functions and exercise all authority as is customarily performed and exercised in such capacities. Notwithstanding the Lead Arrangers’ right to syndicate the Term A Facility and receive commitments with respect thereto, unless otherwise agreed to by you, (i) the Commitment Parties shall not be relieved or released from their obligations hereunder (including their obligation to fund the Term A Facility on the Closing Date or the Interim Facilities on the Interim Closing Date) in connection with any syndication, assignment or participation in the Term A Facility, including their respective Commitment, until the initial funding under the Term A Facility has occurred on the Closing Date or the expiry of the Certain Funds Period, (ii) no assignment by either Commitment Party shall become effective with respect to all or any portion of the Commitment in respect of the Term A Facility until the initial funding of the Term A Facility on the Closing Date or in respect of the Interim Facilities until the initial funding of the Interim Facilities on the Interim Closing Date (as defined in the Interim Facilities Agreement), (iii) unless you and we agree in writing, the Commitment Parties will retain exclusive control over all rights and obligations with respect to their respective Commitment in respect of the Term A Facility and the Interim Facilities, including all rights with respect to consents, modifications, supplements, waivers and amendments, until the Closing Date has occurred (in respect of the Term A Facility) or the initial funding of the Interim Facilities on the Interim Closing Date (as defined in the Interim Facilities Agreement) has occurred and (iv) the Lead Arrangers will not syndicate to (a) any person identified by the Borrower by name in writing to the Lead Arrangers on or prior to the date hereof as a disqualified person, (b) any clearly identifiable affiliate (solely by virtue of its name) of any person referred to in clause (a) above (other than bona fide diversified debt funds) and (c) competitors (and such competitors’ sponsors and affiliates identified in writing or clearly identifiable solely on the basis of their names (other than bona fide diversified debt funds)) of the Borrower, separately identified in writing by you to us after the date hereof and prior to the syndication of the Term A Facility (collectively, the “Disqualified Institutions”). After the Closing Date, the list of Disqualified Institutions may be updated from time to time to include competitors (and such competitors’ sponsors and affiliates identified in writing or clearly identifiable solely on the basis of their names (other than bona fide diversified debt funds)) of the ▇▇▇▇▇▇▇▇ separately identified in writing to the Administrative Agent. No such identification after the date hereof shall apply retroactively to disqualify any person that has previously acquired an assignment or participation of an interest in any of the Term A Facility with respect to such amounts previously acquired. Without limiting your obligations to assist with the syndication efforts as set forth herein and notwithstanding anything to the contrary contained in this Commitment Letter or the Fee Letter, it is understood that the Commitment hereunder is not conditioned upon the syndication of, or receipt of commitments in respect of, the Term A Facility and in no event shall the successful completion of the syndication of the Term A Facility constitute a condition to the availability of the Term A Facility on the Closing Date or the Interim Facilities on the Interim Closing Date (as defined in the Interim Facilities Agreement), or the compliance with any of the other provisions set forth in clauses (i) through (vii) of the immediately preceding paragraph (other than the Certain Funds Provisions) shall not constitute a condition to the commitments hereunder or the funding of the Term A Facility on the Closing Date or any time thereafter or the Interim Facilities on the Interim Closing Date (as defined in the Interim Facilities Agreement).
Appears in 1 contract
Sources: Commitment Letter
Syndication. All aspects The Arrangers intend to commence syndication of the syndication Bridge Facility promptly upon your acceptance of any New Bank this Fee and Syndication Letter. With respect to the Bridge Facility, including, without limitation, timing, potential syndicate members to be approached (which shall be identified by until the Arranger subject to your approval right as set forth below), titles, initial and final allocations and division earlier of fees, shall be determined by the Arranger in consultation with you; provided that each potential syndicate member to be approached must be approved by you (such approval not to be unreasonably withheld, delayed or conditioned) (it being agreed that each person that is currently a “Lender”, or hereafter becomes a “Lender” with your consent, under the Existing Credit Agreement is hereby approved by you). Citi reserves the right, prior to or after the execution of definitive documentation for the 364-Day Facility (but not before (i) the public announcement by you of the Acquisition date upon which a Successful Syndication (as defined below) is achieved and (ii) the receipt of customary commitment advices from Lenders other than Citi for at least US$700,000,000 of date that is 60 days after the principal amount of the 364-Day Facility), to syndicate all or a portion of its commitment hereunder to one or more Lenders pursuant to a syndication to be managed exclusively by the Arranger. The Arranger intends to commence its syndication efforts with respect to the 364-Day Facility promptly upon your execution and delivery to us of this Commitment Letter, and will commence the syndication of any other New Bank Facility as such time as shall be mutually determined by you and by the Arranger. Until the closing under the definitive documentation for any New Bank Facility Closing Date (such earlier date, the “Syndication End Date” with respect to such New Bank Facility”), you agree to actively assist the Arranger Arrangers in completing achieving a syndication of such New Bank the Bridge Facility that is reasonably satisfactory to us, including, without limitation, by promptly preparing the Arrangers and providing the Arranger with such information with respect to the Guarantor and its subsidiaries, in each case including financial information, as the Arranger may reasonably deem necessary to arrange and complete a successful syndication of any New Bank Facilityyou. Such assistance shall include, include your (a) your assisting in the preparation of a confidential offering memorandum and other customary marketing materials to be used in connection with the syndication of the Bridge Facility (collectively, the “Information Materials”), (b) using your commercially reasonable efforts to ensure that any the syndication efforts of the Arrangers benefit materially from your existing lending and investment banking relationships, (b) direct contact between senior management, representatives and advisors of you, on the one hand, and the proposed Lenders and rating agencies identified by the Arranger, on the other hand, at times and places reasonably requested by the Arranger and consented to by the Borrower (such consent not to be unreasonably withheld, delayed or conditioned), (c) assistance by you in the prompt preparation of a Confidential Information Memorandum for any New Bank Facility and other marketing materials and information your using commercially reasonable efforts to obtain as promptly as reasonably deemed necessary by the Arranger to complete a successful syndication of such New Bank Facility for delivery to potential syndicate members and participants, in each case in form and substance customary for transactions of this type and otherwise reasonably satisfactory to the Arranger, including, without limitation, estimates, forecasts, projections and other forward-looking financial information prepared by the Guarantor regarding the future consolidated performance of the Guarantor and its subsidiaries (including projections for the third and fourth quarters of the fiscal year 2014 and for the fiscal years 2015 and 2016 that include the Acquired Company and its subsidiaries in the form of such projections delivered to and approved by the Arranger on or prior to practicable after the date hereof, giving effect to the Transactions, Public Debt Ratings (as defined in the Bridge Facility) (collectively, the “Projections”), and (d) the hosting, with the Arranger, of one or more meetings or conference calls with prospective Lenders at the request of the Arranger. You further agree that prior to, or promptly after, the announcement of the Acquisition you will advise each of ▇▇▇▇▇’▇ Investors Service, Inc. (“▇▇▇▇▇’▇”), Standard & Poor’s Ratings Groupfrom S&P Global Ratings, a division of McGraw Hill FinancialS&P Global Inc., Inc. (“S&P”), ) and Fitch IBCAFitch, Inc. (“Fitch”) and (d) making your officers and certain advisors available to attend and make presentations regarding the business and prospects of the TransactionsBorrower and its subsidiaries, including at one meeting of prospective Lenders, at a time and location to be mutually agreed (which may, at your option, be a “virtual meeting” or conducted via teleconference). Notwithstanding the nature prior paragraph, nothing in this Fee and Syndication Letter shall obligate you to, or cause Catalonia or its subsidiaries to, provide any Information with respect to Catalonia or its subsidiaries or to provide any assistance from Catalonia and its subsidiaries with respect to the syndication of the contemplated financing thereforBridge Facility. You also further agree that, until the earlier of (x) the Termination Date and (y) the Syndication End Date, you and your subsidiaries will not incur, issue, sellannounce, offer, place or arrange, or engage in arrange any discussions with respect to any of the foregoing, any debt securities or syndicated commercial bank debt facility or other syndicated credit facilities of the Guarantor, facility for the Borrower or their respective subsidiaries, its subsidiaries (other than (i) the Bridge Loan Facilityshort- term debt programs, (ii) any New Bank Facility, (iii) the New Notes in an aggregate principal amount borrowings under and increases or refinancings of up to $1,000,000,000, (iv) indebtedness under the existing commitments available under the Existing Credit Agreement, (v) working capital and overdraft facilities provided to the Borrower and its subsidiaries in the ordinary course of business and (vi) commercial paper financings in the ordinary course of business, without the prior written consent of the Arranger.,
Appears in 1 contract
Sources: Fee and Syndication Letter
Syndication. All aspects The Arranger intends and reserves the right, after the execution of the Bridge Loan Agreement, to syndicate all or a part of the Initial Lenders’ Commitments to one or more financial institutions and/or lenders (collectively with the Initial Lenders, the “Lenders”) in one or more stages, and you acknowledge and agree that the commencement of syndication shall occur in the discretion of any New Bank Facilitythe Arranger in consultation with you. The selection of the Lenders (a) from the date hereof until the earlier of 30 days following the date hereof and the date of the completion of Successful Syndication (as defined below) (the “Initial Syndication Period”), including, without limitation, timing, potential syndicate members to be approached (which shall be identified made jointly by the Arranger subject and the Borrower in accordance with the syndication plan (the “Syndication Plan”) for the Bridge Facility agreed to your by the Borrower and the Arranger prior to the date hereof (provided, that such Syndication Plan shall include the pre-approval right of any “Lender” under and as set forth belowdefined in the Existing Credit Agreement), titles(b) following the Initial Syndication Period, initial if and final allocations and division of feesfor so long as a Successful Syndication (as defined below) has not been achieved, shall be determined made by the Arranger in consultation with youthe Borrower and (c) following the achievement of a Successful Syndication, any further assignments of Commitments shall be in accordance with Section 10.6 of the Bridge Loan Agreement. The Arranger will not syndicate the Commitments to any institution identified as a “Disqualified Lender” in the Syndication Plan. The Arranger will lead the syndication, including determining the timing of all offers to potential Lenders, any title of agent or similar designations or roles awarded to any Lender (subject, however, to your rights to appoint Additional Agents as provided above) and the acceptance of commitments, the amounts offered, the final commitment allocations and the compensation provided to each Lender from the amounts to be paid to the Initial Financing Parties pursuant to the term of the Bridge Loan Agreement and this Fee and Syndication Letter; provided provided, that (x) during the Initial Syndication Period, all such determinations shall be made jointly by the Arranger and the Borrower in accordance with the Syndication Plan and (y) following the Initial Syndication Period, such determinations shall be made by the Arranger in consultation with the Borrower. The Commitments of the Initial Lenders under the Bridge Loan Agreement shall be reduced on a pro rata basis (or allocated between them as they may otherwise determine) pound-for-pound as and when Commitments for the Bridge Facility are received from Lenders to the extent that each potential syndicate member such Lender becomes a party to be approached must be the Bridge Loan Agreement as a “Lender” thereunder, and you agree, promptly upon the Arranger’s request, to execute an Assignment and Assumption with respect to each Lender that is selected in accordance with the foregoing provisions of this Section 2; provided, further, however, that in the case of any syndication of a portion of the Commitments as set forth above other than to a Lender which either (x) is set forth in the Syndication Plan or the Borrower has otherwise approved by you (such approval not to be unreasonably withheld, delayed or conditioned) (it being agreed ; provided, that each person that is currently a “Lender”, or hereafter becomes a “Lender” with your consent, under if the Existing Credit Agreement is hereby approved by you). Citi reserves the right, prior to or after the execution of definitive documentation for the 364-Day Facility (but Certain Funds Period has not before (i) the public announcement by you of the Acquisition and (ii) the receipt of customary commitment advices from Lenders other than Citi for at least US$700,000,000 of the principal amount of the 364-Day Facility), to syndicate all or a portion of its commitment hereunder to one or more Lenders pursuant to a syndication to be managed exclusively by the Arranger. The Arranger intends to commence its syndication efforts with respect to the 364-Day Facility promptly upon your execution and delivery to us of this Commitment Letter, and will commence the syndication of any other New Bank Facility as terminated such time as approval shall be mutually determined by you and by the Arranger. Until the closing under the definitive documentation for any New Bank Facility (such date, the “Syndication End Date” with respect to such New Bank Facility), you agree to actively assist the Arranger in completing a syndication of such New Bank Facility that is reasonably satisfactory to us, including, without limitation, by promptly preparing and providing the Arranger with such information with respect to the Guarantor and its subsidiaries, in each case including financial information, as the Arranger may reasonably deem necessary to arrange and complete a successful syndication of any New Bank Facility. Such assistance shall include, (a) your using your commercially reasonable efforts to ensure that any syndication efforts benefit materially from your existing lending and investment banking relationships, (b) direct contact between senior management, representatives and advisors of you, on the one hand, and the proposed Lenders and rating agencies identified by the Arranger, on the other hand, at times and places reasonably requested by the Arranger and consented to by the Borrower (such consent not to be unreasonably withheld, delayed or conditioned), (c) assistance by you in the prompt preparation of a Confidential Information Memorandum for any New Bank Facility and other marketing materials and information reasonably deemed necessary by the Arranger to complete a successful syndication of such New Bank Facility for delivery to potential syndicate members and participants, in each case in form and substance customary for transactions of this type and otherwise reasonably satisfactory to the Arranger, including, without limitation, estimates, forecasts, projections and other forward-looking financial information prepared by the Guarantor regarding the future consolidated performance of the Guarantor and its subsidiaries (including projections for the third and fourth quarters of the fiscal year 2014 and for the fiscal years 2015 and 2016 that include the Acquired Company and its subsidiaries in the form of such projections delivered to and approved by the Arranger on or prior to the date hereof) (collectively, the “Projections”), and (d) the hosting, with the Arranger, of one or more meetings or conference calls with prospective Lenders at the request of the Arranger. You further agree that prior to, Borrower’s sole discretion) or promptly after, the announcement of the Acquisition you will advise each of (y) is a commercial or investment bank whose long term senior unsecured debt is rated investment grade by ▇▇▇▇▇’▇ Investors Service(as defined below) and S&P (as defined below) upon first becoming party to the Bridge Loan Agreement, Inc. (“▇▇▇▇▇’▇”)the Initial Lenders shall not be relieved, Standard & Poor’s Ratings Group, a division of McGraw Hill Financial, Inc. (“S&P”), and Fitch IBCA, Inc. (“Fitch”) of released or novated from their respective obligations under the Transactions, including the nature of the contemplated financing therefor. You also agree that, until the Syndication End Date, you and your subsidiaries will not issue, sell, offer, place or arrange, or engage in any discussions Bridge Loan Agreement with respect to any such portion of the foregoing, any debt securities or commercial bank or other credit facilities Initial Lenders’ respective Commitments until the funding of the Guarantor, Advances on the Closing Date has occurred and the Certain Funds Period has terminated. The Borrower or their respective subsidiaries, other than (i) agrees to use commercially reasonable efforts to ensure that the Bridge Loan Facility, (ii) any New Bank Facility, (iii) the New Notes in an aggregate principal amount of up to $1,000,000,000, (iv) indebtedness under Arranger’s syndication efforts benefit from the existing commitments available under the Existing Credit Agreement, (v) working capital and overdraft facilities provided to lending relationships of the Borrower and its subsidiaries in subsidiaries. To facilitate an orderly and Successful Syndication, you agree that until the ordinary course earliest of business (x) the termination of the syndication by the Arranger, (y) the date a Successful Syndication is achieved and (viz) 60 days following the Closing Date (such earliest date, the “Syndication Date”), the Borrower will not syndicate or issue, attempt to syndicate or issue, announce or authorize the announcement of the syndication or issuance of any debt facility or any debt or equity security of the Borrower or any of its subsidiaries that would reasonably be expected to materially impair the syndication of the Bridge Facility as reasonably determined by the Arranger, including any renewals or refinancings of any existing debt facility or debt security (other than (a) the Bridge Facility, (b) the Permanent Financing, (c) commercial paper financings in the ordinary course of business, without the prior written consent of the Arranger.issuance,
Appears in 1 contract
Sources: 364 Day Bridge Loan Agreement
Syndication. All aspects Following the Closing Date, the Company shall use commercially reasonable efforts to assist the Co-Administrative Agents, Barclays and the Commitment Parties in connection with the primary syndication process (the “Syndication) for the assignment of a proportionate share of the syndication Term Loans, Notes and Commitments in accordance with the Restructuring Support Agreement and the DIP Commitment Letter. If the Company Allocated Portion is not allocated by the date set forth for the allocation thereof in the DIP Commitment Letter, any Loans made by the DIP Fronting Creditor on account of the Company Allocated Portion, shall, at the request of any New Bank FacilityDIP Creditor who is required and permitted to fund its commitment under the DIP Commitment Letter in the form of Notes, including, without limitation, timing, potential syndicate members be replaced by Notes to be approached (issued by the Company to such DIP Creditor, which shall for all purposes hereunder be “Initial Notes” and the proceeds of which shall be identified used to repay the Loans made by the Arranger subject DIP Fronting Creditor on account of such commitments. In connection with the Syndication of the Company Allocated Portion, any Loans made by the DIP Fronting Creditor on account of the Company Allocated Portion, shall, at the request of any DIP Creditor who is required and permitted to your approval right as set forth below)fund its commitment acquired pursuant to the Syndication in the form of Notes, titlesany Loans so acquired may be replaced by Notes to be issued by the Company to such DIP Creditor, initial which shall for all purposes hereunder be “Initial Notes” and final allocations and division the proceeds of fees, which shall be determined used to repay the Loans made by the Arranger DIP Fronting Creditor on account of such commitments. In connection with any conversion of Loans to Notes in consultation accordance with you; provided that each potential syndicate member to be approached must be approved by you (such approval not to be unreasonably withheldthis paragraph, delayed or conditioned) (it being agreed that each person that is currently a “Lender”, or hereafter becomes a “Lender” with your consent, under the Existing Credit Agreement is hereby approved by you). Citi reserves the right, prior to or after the execution of definitive documentation for the 364-Day Facility (but not before (i) any Notes Upfront Premium due with respect to such Notes shall be paid by the public announcement by you of Company to the Acquisition and applicable DIP Creditor holding such Notes pursuant to the Syndication, (ii) the receipt DIP Fronting Creditor shall refund to the Company any Term Loan Upfront Premium paid by the Company in connection with such converted Initial Term Loans and (iii) interest accrued on such Initial Term Loans shall not be due upon such conversion but shall instead be paid on the regularly scheduled Interest Payment Date for such amounts. Any unused Tranche A Loan Commitment may be converted into a Tranche A Note Commitment and any unused Tranche B Loan Commitment may be converted into a Tranche B Note Commitment in connection with the Syndication. The Co-Administrative Agents shall be entitled to conclusively rely on a certificate from the Company setting forth the amounts of customary commitment advices from Lenders other than Citi for at least US$700,000,000 such conversions and names of the principal amount of the 364-Day Facility), to syndicate all or a portion of its commitment hereunder to one or more Lenders pursuant to a syndication to be managed exclusively by the Arranger. The Arranger intends to commence its syndication efforts with respect to the 364-Day Facility promptly upon your execution and delivery to us of this Commitment Letterapplicable DIP Creditors making such conversion, and will commence no such conversion shall require the syndication consent of any other New Bank Facility as such time as shall be mutually determined by you and by the Arranger. Until the closing under the definitive documentation for any New Bank Facility (such dateDIP Creditor; provided that, the “Syndication End Date” with respect to such New Bank Facility), you agree to actively assist the Arranger in completing a syndication of such New Bank Facility that is reasonably satisfactory to us, including, without limitation, by promptly preparing and providing the Arranger with such information with respect to the Guarantor and its subsidiaries, in each case including financial information, as the Arranger may reasonably deem necessary to arrange and complete a successful syndication of any New Bank Facility. Such assistance shall include, (a) your using your commercially reasonable efforts to ensure that any syndication efforts benefit materially from your existing lending and investment banking relationships, (b) direct contact between senior management, representatives and advisors of you, on the one hand, and the proposed Lenders and rating agencies identified by the Arranger, on the other hand, at times and places reasonably requested by the Arranger and consented to by the Borrower (such consent not to be unreasonably withheld, delayed or conditioned), (c) assistance by you in the prompt preparation of a Confidential Information Memorandum for any New Bank Facility and other marketing materials and information reasonably deemed necessary by the Arranger to complete a successful syndication of such New Bank Facility for delivery to potential syndicate members and participants, in each case in form and substance customary for transactions of this type and otherwise reasonably satisfactory to the Arranger, including, without limitation, estimates, forecasts, projections and other forward-looking financial information prepared by the Guarantor regarding the future consolidated performance of the Guarantor and its subsidiaries (including projections for the third and fourth quarters of the fiscal year 2014 and for the fiscal years 2015 and 2016 that include the Acquired Company and its subsidiaries in the form of such projections delivered to and approved by the Arranger on or prior to the date hereof) (collectively, the “Projections”), and (d) the hosting, with the Arranger, of one or more meetings or conference calls with prospective Lenders at the request of any DIP Creditor who desires to convert its unused Tranche A Loan Commitment may be converted into a Tranche A Note Commitment and any unused Tranche B Loan Commitment may be converted into a Tranche B Note Commitment in connection with the Arranger. You further agree that prior to, or promptly afterSyndication, the announcement Company shall deliver a certificate effectuating such conversion to the Co-Administrative Agents. Following receipt of the Acquisition you will advise each of ▇▇▇▇▇’▇ Investors Service, Inc. (“▇▇▇▇▇’▇”), Standard & Poor’s Ratings Group, a division of McGraw Hill Financial, Inc. (“S&P”), and Fitch IBCA, Inc. (“Fitch”) of the Transactions, including the nature of the contemplated financing therefor. You also agree that, until the Syndication End Date, you and your subsidiaries will not issue, sell, offer, place or arrange, or engage in any discussions with respect to any of the foregoing, any debt securities or commercial bank or other credit facilities of the Guarantorsuch certificate, the Borrower or Co-Administrative Agents shall update their respective subsidiaries, other than (i) the Bridge Loan Facility, (ii) any New Bank Facility, (iii) the New Notes in an aggregate principal amount of up records to $1,000,000,000, (iv) indebtedness under the existing commitments available under the Existing Credit Agreement, (v) working capital and overdraft facilities provided to the Borrower and its subsidiaries in the ordinary course of business and (vi) commercial paper financings in the ordinary course of business, without the prior written consent of the Arrangerreflect such conversion.
Appears in 1 contract
Syndication. All aspects We intend to syndicate the Bridge Facility (including, in the discretion of the syndication Lead Arrangers, all or part of any New Bank Facilitythe commitments of the Initial Lenders) to a group of lenders identified by us and reasonably acceptable to you (such acceptance not to be unreasonably withheld or delayed), including, without limitation, timingany relationship lenders designated by you and reasonably acceptable to the Lead Arrangers (together with the Initial Lenders, potential syndicate members the “Lenders”). Notwithstanding any other provision of this Commitment Letter to be approached the contrary, unless you agree in writing, (which a) no Initial Lender shall be identified by the Arranger subject relieved, released or novated from its respective obligations hereunder (including its obligation to your approval right as set forth below), titles, initial and final allocations and division of fees, shall be determined by the Arranger fund its respective commitment in consultation with you; provided that each potential syndicate member to be approached must be approved by you (such approval not to be unreasonably withheld, delayed or conditioned) (it being agreed that each person that is currently a “Lender”, or hereafter becomes a “Lender” with your consent, under the Existing Credit Agreement is hereby approved by you). Citi reserves the right, prior to or after the execution of definitive documentation for the 364-Day Facility (but not before (i) the public announcement by you respect of the Acquisition and (iiBridge Facility on the Delayed Draw Closing Date) the receipt of customary commitment advices from Lenders other than Citi for at least US$700,000,000 in connection with any syndication, assignment or participation of the principal amount of Bridge Facility, including its commitments in respect thereof, until the 364-Day Facility)Delayed Draw Closing Date has occurred, to syndicate all (b) no assignment or a portion of its commitment hereunder to one or more Lenders pursuant to a syndication to be managed exclusively by the Arranger. The Arranger intends to commence its syndication efforts novation shall become effective with respect to all or any portion of any Initial Lender’s commitments in respect of the 364-Day Bridge Facility until the Delayed Draw Closing Date has occurred, and (c) each Initial Lender shall retain exclusive control over all rights and obligations with respect to its commitments in respect of the Bridge Facility, including all rights with respect to consents, modifications, supplements, waivers and amendments, until the Delayed Draw Closing Date has occurred and the initial funding under the Bridge Facility has been made. The Lead Arrangers intend to commence syndication efforts promptly upon your execution after the date hereof, and delivery to us until the date that is the earliest of (x) the date all commitments in respect of the Bridge Facility are terminated and no Bridge Loans are outstanding, (y) 60 days after the Delayed Draw Closing Date and (z) the date on which this Commitment Letter, and will commence Letter expires or terminates in accordance with the syndication of any other New Bank Facility as such time as shall be mutually determined by you and by the Arranger. Until the closing under the definitive documentation for any New Bank Facility terms hereof (such date, the “Syndication End Date” with respect to such New Bank Facility”), you agree to actively assist (and, solely to the Arranger extent permitted under the Merger Agreement, to use your commercially reasonable efforts to cause the Other MA Parties to actively assist) the Lead Arrangers in completing a syndication of such New Bank Facility that is reasonably satisfactory to us, including, without limitation, by promptly preparing the Lead Arrangers and providing the Arranger with such information with respect to the Guarantor and its subsidiaries, in each case including financial information, as the Arranger may reasonably deem necessary to arrange and complete a successful syndication of any New Bank Facilityyou. Such assistance shall include, include (aA) your using commercially reasonable efforts to ensure that the syndication efforts benefit from your and your affiliates’ existing banking relationships (and, solely to the extent permitted under the Merger Agreement, using your commercially reasonable efforts to ensure that any the syndication efforts benefit materially from your the Other MA Parties and their affiliates’ existing lending and investment banking relationships), (bB) at reasonable times and with reasonable prior notice, direct contact between your senior management, representatives management and advisors of you, on the one hand, and the proposed Lenders (and, solely to the extent permitted under the Merger Agreement, using your commercially reasonable efforts to ensure such contact between senior management of the Other MA Parties and rating agencies identified by the Arranger, on the other hand, at times and places reasonably requested by the Arranger and consented to by the Borrower (such consent not to be unreasonably withheld, delayed or conditionedproposed Lenders), (cC) your preparing and providing (and, solely to the extent permitted under the Merger Agreement, using commercially reasonable efforts to cause the Other MA Parties to prepare and provide) to the Lead Arrangers all information with respect to you and your affiliates and the Other MA Parties and their affiliates and the Merger, including the financial information described on Exhibit C hereto and Projections (as defined below), as the Lead Arrangers may reasonably request in connection with the arrangement and syndication of the Bridge Facility and your assistance by you (and, solely to the extent permitted under the Merger Agreement, using your commercially reasonable efforts to cause the Other MA Parties to assist) in the prompt our preparation of one or more confidential information memoranda (each, a “Confidential Information Memorandum for any New Bank Facility Memorandum”) and other marketing materials to be used in connection with the syndication (all such information, memoranda and information reasonably deemed necessary by the Arranger to complete a successful syndication of such New Bank Facility for delivery to potential syndicate members and participantsmaterial, in each case in form and substance customary for transactions of this type and otherwise reasonably satisfactory to the Arranger, including, without limitation, estimates, forecasts, projections and other forward-looking financial information prepared by the Guarantor regarding the future consolidated performance of the Guarantor and its subsidiaries (including projections for the third and fourth quarters of the fiscal year 2014 and for the fiscal years 2015 and 2016 that include the Acquired Company and its subsidiaries in the form of such projections delivered to and approved by the Arranger on or prior to the date hereof) (collectively, the “ProjectionsInformation Materials”), and (dD) the your hosting, with the ArrangerLead Arrangers, of one or more meetings or conference calls with of prospective Lenders at times and locations to be mutually agreed (and, solely to the request extent permitted under the Merger Agreement, using your commercially reasonable efforts to cause the officers of the ArrangerOther MA Parties to be available for such meetings) and (E) your ensuring that there is no competing offering, placement, arrangement or syndication of any bank financing (other than asset-level non-recourse financing and any financing to refinance, replace or repay all or any portion of the Bridge Facility) or announcement thereof by or on behalf of you or any of your subsidiaries (and, solely to the extent permitted under the Merger Agreement, your using commercially reasonable efforts to ensure there is no competing offering, placement, arrangement or syndication of such bank financing, or announcement thereof, by or on behalf of the Other MA Parties or any of their subsidiaries) if such offering, placement or arrangement would materially and adversely impair the primary syndication of the Bridge Facility. The Lead Arrangers (with your consent (not to be unreasonably withheld or delayed)) will manage all aspects of the syndication, including decisions as to the selection of institutions to be approached and when they will be approached, when commitments will be accepted, which institutions will participate, the allocation of the commitments among the Lenders and the amount and distribution of fees among the Lenders. If requested by the Lead Arrangers, you agree to assist in our preparation of a version of each Confidential Information Memorandum or other Information Material (a “Public Version”) consisting exclusively of information with respect to you and your affiliates and the Merger (and, in the case of information with respect to the Other MA Parties, solely to the extent permitted under the Merger Agreement, to use commercially reasonable efforts to provide a version of such information) that is either publicly available or not material with respect to you and your affiliates, the Other MA Parties and their affiliates or any of your or their respective securities or the Merger for purposes of United States federal securities laws (such information, “Non-MNPI”). Such Public Versions, together with any other information prepared by you or the Other MA Parties or your or their affiliates or representatives and conspicuously marked “Public” (collectively, the “Public Information”) on the first page of any such information, may be distributed by us to prospective Lenders who have advised us that they wish to receive only Non-MNPI (“Public Side Lenders”). You further acknowledge and agree that prior tounless you promptly notify us otherwise (provided that you shall have been given a reasonable opportunity to review such documents and comply with the U.S. Securities Exchange Commission requirements), or promptly after(a) administrative materials for prospective Lenders such as lender meeting invitations and funding and closing memoranda, (b) term sheets and notifications of changes to the announcement Bridge Facility’s terms and (c) other materials intended for prospective Lenders after the initial distribution of the Acquisition Information Materials, including drafts and final versions of definitive documents with respect to the Bridge Facility shall, in each case, constitute Public Information; provided that all other information that is not specifically identified as “PUBLIC” (including any Projections (as defined herein)) shall be treated as being suitable only for posting to private Lenders. In connection with our distribution to prospective Lenders of any Confidential Information Memorandum and, upon our request, any other Information Materials, you will advise each execute and deliver to us a customary authorization letter authorizing such distribution and, in the case of any Public Version thereof or other Public Information, representing that it only contains Non-MNPI. Each Confidential Information Memorandum will be accompanied by a disclaimer exculpating you and us with respect to any use thereof and of any related Information Materials by the recipients thereof. Notwithstanding anything to the contrary contained in this Commitment Letter or any other agreement or undertaking concerning the Bridge Facility, but without limiting your obligations to assist with syndication pursuant to this S▇▇▇▇▇’▇ Investors Service▇, Inc. (“▇▇▇▇▇’▇”), Standard & Poor’s Ratings Group, a division of McGraw Hill Financial, Inc. (“S&P”), and Fitch IBCA, Inc. (“Fitch”) ▇ of the Transactionsforegoing obligations under the provisions of this Section 3 nor the commencement, including the nature conduct or completion of the syndication contemplated financing therefor. You also agree thatby this Section 3 is a condition to the commitments, until the Syndication End Date, you and your subsidiaries will not issue, sell, offer, place or arrange, or engage in any discussions with respect to any obligations of the foregoing, any debt securities Initial Lenders hereunder or commercial bank or other credit facilities the funding of the Guarantor, the Borrower or their respective subsidiaries, other than (i) the Bridge Loan Facility, (ii) any New Bank Facility, (iii) the New Notes in an aggregate principal amount of up to $1,000,000,000, (iv) indebtedness under the existing commitments available under the Existing Credit Agreement, (v) working capital and overdraft facilities provided to the Borrower and its subsidiaries in the ordinary course of business and (vi) commercial paper financings in the ordinary course of business, without the prior written consent of the Arranger.
Appears in 1 contract
Sources: Merger Agreement (American Realty Capital - Retail Centers of America, Inc.)
Syndication. All aspects of the syndication of any New Bank Facility, including, without limitation, timing, potential syndicate members to be approached (which shall be identified by the The Lead Arranger subject to your approval right as set forth below), titles, initial and final allocations and division of fees, shall be determined by the Arranger in consultation with you; provided that each potential syndicate member to be approached must be approved by you (such approval not to be unreasonably withheld, delayed or conditioned) (it being agreed that each person that is currently a “Lender”, or hereafter becomes a “Lender” with your consent, under the Existing Credit Agreement is hereby approved by you). Citi reserves the right, prior to before or after the execution of the definitive documentation for the 364-Day Acquisition Credit Facility (but not before (i) collectively, the public announcement by you of the Acquisition and (ii) the receipt of customary commitment advices from Lenders other than Citi for at least US$700,000,000 of the principal amount of the 364-Day Facility“Financing Documentation”), to syndicate all or a portion of its commitment hereunder SunTrust Bank’s commitments to one or more Lenders pursuant other financial institutions reasonably acceptable to the Company that will become parties to the Financing Documentation (such financial institutions, together with the Existing Lenders, the “Lenders”); provided that, notwithstanding SunTrust Bank’s right to syndicate the Acquisition Credit Facility and receive commitments with respect thereto, (x) SunTrust shall not be relieved, released or novated from its obligations hereunder (including its obligation to fund the Acquisition Credit Facility on the Closing Date) in connection with any syndication, assignment or participation of the Acquisition Credit Facility, including its commitments in respect thereof, until after the Closing Date has occurred, (y) no assignment or novation shall become effective with respect to all or any portion of SunTrust Bank’s commitments in respect of the Acquisition Credit Facility until the initial funding thereof and (z) unless SunTrust and the Company otherwise agree in writing, SunTrust Bank shall retain exclusive control over all rights and obligations with respect to its commitments in respect of the Acquisition Credit Facility, including all rights with respect to consents, modifications, supplements, waivers and amendments, until a syndication to be managed exclusively by Successful Syndication (as defined in the ArrangerFee Letter (as defined below)) has occurred. The Company understands that the Lead Arranger intends to commence its such syndication efforts with respect promptly and the Lead Arranger may elect to appoint one or more agents to assist it in such syndication efforts. You hereby appoint SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc. to act, and the Lead Arranger agrees to act, as lead arranger and book manager for the Acquisition Credit Facility, subject to the 364-Day Facility promptly upon your execution terms and delivery to us conditions of this Commitment Letter, and . The Lead Arranger will commence manage all aspects of the syndication of any the Acquisition Credit Facility in consultation with the Company, including the timing of all offers to potential Lenders, the determination of all amounts offered to potential Lenders, the selection of Lenders (subject to the approval of the Company, such approval not to be unreasonably withheld), the allocation of commitments among the Lenders, and the determination of compensation and titles (such as co-agent, managing agent, etc.), if any, to be given such Lenders. It is agreed that no other New Bank Facility agents, co-agents or arrangers will be appointed, or other titles conferred, except as such time as shall be mutually determined agreed to by you the Company and by the Lead Arranger, and that no Lender will receive any compensation for its commitment to, or participation in, the Acquisition Credit Facility or the Amendment except as expressly set forth in the Term Sheet or the Fee Letter or as otherwise mutually agreed to by the Company and by the Lead Arranger. Without limiting the Company’s obligations to assist with the marketing and syndication efforts as set forth herein, it is understood that SunTrust Bank’s commitments hereunder are not conditioned upon the syndication of, or receipt of commitments from other Lenders in respect of, the Acquisition Credit Facility and in no event shall the commencement or successful completion of syndication of the Acquisition Credit Facility constitute a condition to the availability of the Acquisition Credit Facility on the Closing Date. Arc Terminals Holdings LLC February 19, 2015 Until the closing under later of (i) the definitive documentation for any New Bank Facility Closing Date and (such dateii) the earlier of (A) the date upon which a Successful Syndication is achieved and (B) 90 days after the Closing Date, the “Syndication End Date” with respect to such New Bank Facility), you agree Company agrees to actively assist the Lead Arranger in completing attempting to complete a timely syndication of such New Bank the Acquisition Credit Facility that is reasonably satisfactory to us, including, without limitation, by promptly preparing and providing the Arranger with such information with respect to the Guarantor and its subsidiaries, in each case including financial information, shall take all action as the Lead Arranger may reasonably deem necessary to arrange and complete a successful syndication of any New Bank Facilityrequest related thereto. Such The Company’s assistance shall include, include (ai) your using your commercially reasonable efforts to ensure that any syndication efforts benefit materially from your existing lending and investment banking relationships, (b) direct contact between making available senior management, representatives and advisors of youthe Company, on Arc Logistics Partners LLP (the one hand“MLP”), Arc Logistics GP LLC (together with the MLP, the “MLP Affiliates”) and their respective subsidiaries (and shall request the proposed Seller to make available its senior management, representatives and advisors involved in the Transactions or otherwise substantively involved in the development of the Acquired Business) to participate in meetings with potential Lenders and rating agencies identified by the Arranger, on the other hand, to provide information to potential Lenders at such times and places reasonably as are mutually agreed upon; (ii) ensuring that the syndication effort benefits from the existing lending relationships of the Company, the MLP Affiliates and their respective subsidiaries, and using commercially reasonable efforts to ensure that the syndication effort benefits from the existing lending relationships, if any, of the Acquired Business; (iii) assisting in the preparation of customary marketing materials (which may include an information memorandum, if requested by the Arranger and consented to by the Borrower (such consent not Lead Arranger) to be unreasonably withheldused in connection with the syndication, delayed or conditioned), (c) assistance by you in the prompt preparation of a Confidential Information Memorandum for any New Bank Facility and other marketing materials and information reasonably deemed necessary by the Arranger to complete a successful syndication of such New Bank Facility for delivery to potential syndicate members and participants, in each case in form and substance customary for transactions of this type and otherwise reasonably satisfactory acceptable to the Lead Arranger and the Company, at least 20 days prior to the closing of the Acquisition Credit Facility; (iv) preparing and providing to the Lead Arranger (and requesting the Seller, with respect to the Acquired Business, to prepare and provide to the Lead Arranger) all information with respect to the Company, the Acquired Business, their respective subsidiaries and the Transactions, including, without limitation, estimates, forecasts, projections and other forward-looking all financial information prepared by the Guarantor regarding the future consolidated performance of the Guarantor and its subsidiaries projections (including projections for the third and fourth quarters of the fiscal year 2014 and for the fiscal years 2015 and 2016 that include the Acquired Company and its subsidiaries in the form of such projections delivered to and approved by the Arranger on or prior to the date hereof) (collectively, the “Projections”), reasonably requested by the Lead Arranger that is usual and customary in financings of this type; and (dv) the hosting, with the Arranger, of one or more meetings or conference calls with prospective Lenders at the request furnishing to us an electronic version of the Arranger. You further agree that prior toCompany’s trademarks, or promptly after, service marks and corporate logo for use in marketing materials for the announcement purpose of facilitating the syndication of the Acquisition you Credit Facility; provided that such license shall be used solely for the purpose described above, is granted without any fee and may not be assigned or transferred. For the avoidance of doubt, the Company will advise each not be required to provide any information to the extent that the provision thereof would violate any law, rule or regulation, or any obligation of ▇▇▇▇▇’▇ Investors Serviceconfidentiality binding upon the Company, Inc. (“▇▇▇▇▇’▇”)the Acquired Business or any of their respective affiliates. Notwithstanding anything herein to the contrary, Standard & Poor’s Ratings Group, a division of McGraw Hill Financial, Inc. (“S&P”), and Fitch IBCA, Inc. (“Fitch”) the only financial statements that shall be required to be provided to SunTrust with respect to the Acquired Business in connection with the syndication of the TransactionsAcquisition Credit Facility shall be such financial statements, including if any, made available to the nature Company pursuant to the Purchase Agreement. To ensure an orderly and effective syndication of the contemplated financing therefor. You also agree Acquisition Credit Facility, the Company agrees that, until the earlier of (A) the date upon which a Successful Syndication End is achieved and (B) 90 days after the Closing Date, you the Company and your subsidiaries will not issue, sell, offer, place or arrange, or engage the Guarantors (as defined in any discussions with respect to any of the foregoing, any debt securities or commercial bank or other credit facilities of the Guarantor, the Borrower or their respective subsidiaries, other than (i) the Bridge Loan Facility, (ii) any New Bank Facility, (iii) the New Notes in an aggregate principal amount of up to $1,000,000,000, (iv) indebtedness under the existing commitments available under the Existing Credit Agreement) shall not, and shall not permit their respective subsidiaries to, arrange, sell, syndicate or issue any credit facilities or debt security (vincluding any renewals thereof) working capital and overdraft facilities provided to the Borrower and its subsidiaries in the ordinary course of business and (vi) commercial paper financings in the ordinary course of business, without except with the prior written consent of the Arranger.Lead Arranger (excluding any indebtedness outstanding under the Existing Credit Agreement and excluding the ongoing ordinary course short-term working capital facilities and ongoing ordinary course capital lease, purchase money and equipment financings of the Company and its subsidiaries and any other indebtedness permitted to be borrowed under the Existing Credit Agreement (other than the Qualified Senior Notes (as defined therein))). Arc Terminals Holdings LLC February 19, 2015
Appears in 1 contract
Sources: Interim Investors Agreement (Arc Logistics Partners LP)
Syndication. All aspects The Borrower and the WCP Borrowers acknowledge that, without limitation of the syndication provisions of any New Bank FacilityClause 25, the Lenders may assign or transfer their respective rights under this Agreement ("Syndication") and the Borrower and the WCP Borrowers undertake to assist and co-operate with the Arranger in Syndication in such manner and to such extent as the Arranger may from time to time each reasonably request including, without limitation, timing, potential syndicate members to be approached (which shall be identified by the Arranger subject to your approval right as set forth below), titles, initial and final allocations and division of fees, shall be determined by the Arranger in consultation with you; provided that each potential syndicate member to be approached must be approved by you (such approval not to be unreasonably withheld, delayed or conditioned) (it being agreed that each person that is currently a “Lender”, or hereafter becomes a “Lender” with your consent, under the Existing Credit Agreement is hereby approved by you). Citi reserves the right, prior to or after the execution of definitive documentation for the 364-Day Facility (but not before (i) the public announcement by you of the Acquisition and (ii) the receipt of customary commitment advices from Lenders other than Citi for at least US$700,000,000 of the principal amount of the 364-Day Facility), to syndicate all or a portion of its commitment hereunder to one or more Lenders pursuant to a syndication to be managed exclusively by the Arranger. The Arranger intends to commence its syndication efforts with respect to the 364-Day Facility promptly upon your execution and delivery to us of this Commitment Letter, and will commence the syndication of any other New Bank Facility as such time as shall be mutually determined by you and by the Arranger. Until the closing under the definitive documentation for any New Bank Facility (such date, the “Syndication End Date” with respect to such New Bank Facility), you agree to actively assist the Arranger in completing a syndication of such New Bank Facility that is reasonably satisfactory to us, including, without limitation, by promptly preparing and providing the Arranger with such information with respect to the Guarantor and its subsidiaries, in each case including financial information, as the Arranger may reasonably deem necessary to arrange and complete a successful syndication of any New Bank Facility. Such assistance shall include, by:
(a) your using your commercially reasonable efforts to ensure that any syndication efforts benefit materially from your existing lending providing and investment banking relationships, (b) direct contact between senior management, representatives and advisors of you, on causing both the one hand, Borrowers advisers and the proposed Lenders and rating agencies identified by the Arranger, on the other hand, at times and places reasonably requested by the WCP ▇▇▇▇▇▇▇▇'s Borrowers' to provide Arranger and consented to by the Borrower (such consent not to be unreasonably withheld, delayed or conditioned), (c) assistance by you in the prompt preparation of a Confidential Information Memorandum for any New Bank Facility and other marketing materials and with all reasonable information reasonably deemed necessary by the Arranger to complete a successful syndication of such New Bank Facility for delivery syndication, including but not limited to potential syndicate members information and participants, in each case in form and substance customary for transactions of this type and otherwise reasonably satisfactory to the Arranger, including, without limitation, estimates, forecasts, projections and other forward-looking financial information evaluations prepared by the Guarantor Borrower the WCP Borrowers and their respective advisers;
(b) assisting in the preparation of an Information Memorandum;
(c) making available officers of the Borrower the WCP Borrowers and ChiRex Inc. from time to time and, as may reasonably be requested, causing such officers to attend and make presentations regarding the future consolidated performance business and prospects of the Guarantor Borrower the WCP Borrowers and ChiRex Inc., as appropriate, at a meeting or meetings of Lenders or prospective Lenders;
(d) arranging and conducting appropriate Borrower site visits for the Arranger;
(e) selecting Interest Periods having a duration of not more than one month in respect of all Advances made for the first six months following the date of this Agreement or, if earlier, the date on which the Agent notifies the Borrower and the WCP Borrowers that in the Agent's determination Syndication is completed, which the Agent hereby agrees to do promptly upon completion of Syndication; and
(f) refraining and causing its subsidiaries (including projections for the third and fourth quarters to refrain, from placing any of the fiscal year 2014 and for the fiscal years 2015 and 2016 that include the Acquired Company and its subsidiaries their respective borrowings in the form English, French, Spanish or international financial or capital markets until the earlier of such projections delivered to and approved by the Arranger on or prior to (i) six months after the date hereof) (collectively, the “Projections”)of this Agreement, and (d) the hosting, with the Arranger, of one or more meetings or conference calls with prospective Lenders at the request of the Arranger. You further agree that prior to, or promptly after, the announcement of the Acquisition you will advise each of ▇▇▇▇▇’▇ Investors Service, Inc. (“▇▇▇▇▇’▇”), Standard & Poor’s Ratings Group, a division of McGraw Hill Financial, Inc. (“S&P”), and Fitch IBCA, Inc. (“Fitch”) of the Transactions, including the nature of the contemplated financing therefor. You also agree that, until the Syndication End Date, you and your subsidiaries will not issue, sell, offer, place or arrange, or engage in any discussions with respect to any of the foregoing, any debt securities or commercial bank or other credit facilities of the Guarantor, the Borrower or their respective subsidiaries, other than (i) the Bridge Loan Facility, (ii) any New Bank Facility, (iii) the New Notes in an aggregate principal amount completion of up to $1,000,000,000, (iv) indebtedness under the existing commitments available under the Existing Credit Agreement, (v) working capital and overdraft facilities provided such Syndication as notified to the Borrower and its subsidiaries in the ordinary course of business and (vi) commercial paper financings in WCP Borrowers by the ordinary course of business, without the prior written consent of the ArrangerAgent.
Appears in 1 contract
Sources: Facilities Agreement (Chirex Inc)
Syndication. All aspects of (a) On the syndication of any Amendment Effective Date, the Lenders listed as Initial Pro Rata Lenders on the signature pages hereto (each, an “Initial Pro Rata Lender”) will sell and assign to each Lender listed as a New Bank Facility, including, without limitation, timing, potential syndicate members to be approached (which shall be identified Pro Rata Lender on a signature page hereto executed and delivered by such Lender and confirmed by the Arranger subject to your approval right as set forth belowGeneral Administrative Agent (each, a “New Pro Rata Lender”), titlesand each New Pro Rata Lender will purchase and assume from the Initial Pro Rata Lenders, initial and final allocations and division of fees, shall be determined by the Arranger in consultation with you; provided that each potential syndicate member to be approached must be approved by you (such approval not to be unreasonably withheld, delayed or conditioned) (it being agreed that each person that is currently a “Lender”, or hereafter becomes a “Lender” with your consent, under the Existing Credit Agreement is hereby approved by you). Citi reserves the right, prior to or after the execution of definitive documentation for the 364-Day Facility (but not before (i) a Revolving Credit Commitment in the public announcement amount set forth opposite such Lender’s name on such Lender’s signature page hereto opposite the caption “Revolving Credit Commitment”, (ii) such New Pro Rata Lender’s Revolving Credit Percentage (determined after giving effect to the assumption by you the New Pro Rata Lenders of the Acquisition Revolving Credit Commitments assumed by them pursuant to the foregoing clause (i)) of all Revolving Credit Loans outstanding on the Amendment Effective Date, and (iii) a Tranche A Term Loan in the principal amount set forth opposite such Lender’s name on such Lender’s signature page hereto opposite the caption “Tranche A Term Loan”. Each such sale and assignment by the Initial Pro Rata Lenders shall be made by the Initial Pro Rata Lenders in equal shares among them and shall be deemed to have been consummated pursuant to Section 10.6(c) of the Credit Agreement; provided, that no Assignment and Acceptance shall be executed to effect such transaction and no registration and processing fee shall be payable pursuant to Section 10.6(e) in connection with such transactions. Interest on the Loans purchased by each New Pro Rata Lender pursuant hereto shall accrue for the benefit of the Initial Pro Rata Lenders from the Closing Date to the date upon which such New Pro Rata Lender’s purchase of such Loans is effective pursuant to paragraph (b) below, and from and after such date such interest shall accrue for the benefit of such New Pro Rata Lender.
(b) In consideration of the sale and assignment effected pursuant to the foregoing paragraph (a), on the Amendment Effective Date, each New Pro Rata Lender will pay to the General Administrative Agent, in immediately available funds, an amount equal to 100% of the outstanding principal amount of the Tranche A Term Loan being purchased by such New Pro Rata Lender plus 100% of such New Pro Rata Lender’s Revolving Credit Percentage (determined after giving effect to the assumption by the New Pro Rata Lenders of the Revolving Credit Commitments assumed by them pursuant to clause (i) of the foregoing paragraph (a)) of the aggregate principal amount of all Revolving Credit Loans outstanding on the Amendment Effective Date, and such sale and assignment to each New Pro Rata Lender will be effective upon such payment by such New Pro Rata Lender. The General Administrative Agent will distribute to each Initial Pro Rata Lender such Lender’s ratable share of the payments received by the General Administrative Agent pursuant to this paragraph (b).
(c) Each Initial Pro Rata Lender (i) makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with the Credit Agreement or with respect to the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Credit Agreement, any other Loan Document or any other instrument or document furnished pursuant thereto, other than that such Initial Pro Rata Lender has not created any adverse claim upon the interest being assigned by it hereunder and that such interest is free and clear of any such adverse claim and (ii) the receipt of customary commitment advices from Lenders other than Citi for at least US$700,000,000 of the principal amount of the 364-Day Facility), to syndicate all makes no representation or a portion of its commitment hereunder to one or more Lenders pursuant to a syndication to be managed exclusively by the Arranger. The Arranger intends to commence its syndication efforts warranty and assumes no responsibility with respect to the 364-Day Facility promptly upon your execution and delivery to us of this Commitment Letter, and will commence the syndication financial condition of any Loan Party, any of its Subsidiaries or any other New Bank Facility as such time as shall be mutually determined obligor or the performance or observance by you and by the Arranger. Until the closing any Loan Party, any of its Subsidiaries or any other obligor of any of their respective obligations under the definitive documentation for Credit Agreement or any New Bank Facility (such date, the “Syndication End Date” with respect to such New Bank Facility), you agree to actively assist the Arranger in completing a syndication of such New Bank Facility that is reasonably satisfactory to us, including, without limitation, by promptly preparing and providing the Arranger with such information with respect to the Guarantor and its subsidiaries, in each case including financial information, as the Arranger may reasonably deem necessary to arrange and complete a successful syndication of other Loan Document or any New Bank Facility. Such assistance shall include, (a) your using your commercially reasonable efforts to ensure that any syndication efforts benefit materially from your existing lending and investment banking relationships, (b) direct contact between senior management, representatives and advisors of you, on the one hand, and the proposed Lenders and rating agencies identified by the Arranger, on the other hand, at times and places reasonably requested by the Arranger and consented to by the Borrower (such consent not to be unreasonably withheld, delayed instrument or conditioned), (c) assistance by you in the prompt preparation of a Confidential Information Memorandum for any New Bank Facility and other marketing materials and information reasonably deemed necessary by the Arranger to complete a successful syndication of such New Bank Facility for delivery to potential syndicate members and participants, in each case in form and substance customary for transactions of this type and otherwise reasonably satisfactory to the Arranger, including, without limitation, estimates, forecasts, projections and other forward-looking financial information prepared by the Guarantor regarding the future consolidated performance of the Guarantor and its subsidiaries (including projections for the third and fourth quarters of the fiscal year 2014 and for the fiscal years 2015 and 2016 that include the Acquired Company and its subsidiaries in the form of such projections delivered to and approved by the Arranger on document furnished pursuant hereto or prior to the date hereof) (collectively, the “Projections”), and thereto.
(d) the hosting, with the Arranger, of one or more meetings or conference calls with prospective Lenders at the request of the Arranger. You further agree that prior to, or promptly after, the announcement of the Acquisition you will advise each of ▇▇▇▇▇’▇ Investors Service, Inc. (“▇▇▇▇▇’▇”), Standard & Poor’s Ratings Group, a division of McGraw Hill Financial, Inc. (“S&P”), and Fitch IBCA, Inc. (“Fitch”) of the Transactions, including the nature of the contemplated financing therefor. You also agree that, until the Syndication End Date, you and your subsidiaries will not issue, sell, offer, place or arrange, or engage in any discussions with respect to any of the foregoing, any debt securities or commercial bank or other credit facilities of the Guarantor, the Borrower or their respective subsidiaries, other than Each New Pro Rata Lender (i) the Bridge Loan Facility, represents and warrants that it is legally authorized to enter into this Amendment; (ii) any New Bank Facilityconfirms that it has received a copy of the Credit Agreement, together with copies of the financial statements described in Section 4.1 thereof and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Amendment; (iii) agrees that it will, independently and without reliance upon any Initial Pro Rata Lender, the New Notes Agents or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in an aggregate principal amount of up to $1,000,000,000taking or not taking action under the Credit Agreement, the other Loan Documents or any other instrument or document furnished pursuant hereto or thereto; (iv) indebtedness appoints and authorizes the Agents to take such action as agent on its behalf and to exercise such powers and discretion under the existing commitments available under the Existing Credit Agreement, (v) working capital and overdraft facilities provided the other Loan Documents or any other instrument or document furnished pursuant hereto or thereto as are delegated to the Borrower and its subsidiaries in Agents by the ordinary course of business terms thereof, together with such powers as are incidental thereto; and (vie) commercial paper financings in agrees that it will be bound by the ordinary course of business, without the prior written consent provisions of the ArrangerCredit Agreement and will perform in accordance with its terms all the obligations which by the terms of the Credit Agreement are required to be performed by it as a Lender. From and after the Amendment Effective Date, each New Pro Rata Lender shall be a party to the Credit Agreement and shall have the rights and obligations of a Lender thereunder and under the other Loan Documents.
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