Extract to table

The core concept is straightforward but critically important: the conditions to funding under the Commitment Letter should be no more onerous than the conditions to the Sponsor's obligation to close under the Merger Agreement, such that there is no circumstance in which the Sponsor is required to consummate the Acquisition but the Commitment Parties are not required to fund the debt financing

No Material Adverse Effect Condition Commitment Letter Drafting (Section 3(a)(i)): The Commitment Letter provides that it is a condition to the Commitment Parties' obligation to fund on the closing date that no "Material Adverse Effect" shall have occurred with respect to the Target since the date of the Commitment Letter

The condition should read: "No 'Material Adverse Effect' (as defined in the Merger Agreement) shall have occurred with respect to the Target since the date of the Merger Agreement

Accuracy of Representations and Warranties Commitment Letter Drafting (Section 3(a)(ii)): The Commitment Letter provides that it is a condition to funding that (a) the "Specified Representations" made by the Borrower in the Credit Agreement shall be true and correct in all material respects as of the closing date, and (b) the representations and warranties of the Target set forth in the Merger Agreement shall be true and correct to the extent required by the bring-down condition in Section 7

However, we recommend adding clarifying language to confirm that this condition is satisfied by delivery of the financial statements that the Target is required to deliver under the Merger Agreement (Section 6

Execution of Definitive Documentation Commitment Letter Drafting (Section 3(d)): The Commitment Letter provides that it is a condition to funding that the definitive Credit Agreement and related loan documentation (including the guarantee agreement, the security agreement, the pledge agreement, and any intercreditor agreement) shall have been executed and delivered by all parties thereto