| | The Staff’s comment suggests that the satisfaction (as opposed to the waiver) of the Company’s financing condition as currently set forth in the Offer to Purchase would constitute a material change to the tender offer requiring the tender offer to run or be extended for at least five business days thereafter. We note that the Staff has long recognized a distinction between legally binding commitment letters and non-binding financial arrangements. Unlike tender offers containing a “true” financing condition (i.e., where there is only a non-binding financial arrangement or no financial arrangement at all), the Company’s tender offer was commenced with a fully underwritten and legally binding commitment letter in place to provide the funds necessary to purchase the Shares. The Company respectively submits that it already has “committed” financing, described in detail in Item 9 of the Offer to Purchase, and that therefore the condition currently set forth in the Offer to Purchase refers, in effect, to a more limited “funding” condition. Accordingly, by disclosing the Commitment Letter in the Offer to Purchase and by filing it as an exhibit, the Company has identified its source of financing, disclosed its material terms and conditions to shareholders and made clear that it is prepared to borrow the funds from such financing source necessary to consummate the tender offer on the terms described in the Commitment Letter. In other words, the Company’s financing is effectively only conditioned upon the satisfaction of the conditions to funding described in Section 9 of the Offer to Purchase and other customary conditions. In addition, closing of the tender offer is subject to the conditions set forth in Section 7 of the Offer to Purchase. In the event that the tender offer is required to remain open for five business days after satisfaction of the financing condition, the Company would be required to waive, in advance, the condition that the lenders fund the committed financing, as the lenders will make the funds available only upon and simultaneously with the Company’s acceptance for payment of shares tendered in the tender offer. In this regard, this funding condition is similar to conditions to a tender offer (such as a minimum share condition if there had been one) which, by their terms, can only be satisfied at the expiration of the offer. As a result, if the Company were to waive in advance the financing condition, the Company would be at risk in the event that, for whatever reason, the lenders did not, in fact, make such financing available. We would respectfully submit that there is no reason that the Company should bear such risk. Alternatively, for the Company to alleviate this risk fully, it would have to borrow $1.2 billion in advance of the expiration of the tender offer, even though it would not yet know the number of shares tendered or whether any of the other conditions to the tender offer have been triggered. We respectfully submit that such a requirement would be costly and impractical. To the extent that the Staff is concerned that shareholders possess all material information necessary to make an informed decision about whether to tender, the Company can confirm that it expects to enter into definitive financing agreements on terms materially consistent with those described in the Commitment Letter and in the Offer to Purchase. As long as the |
