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Frequently Asked Questions - #68

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Entity A’s parent company has plans to merge or to combine with another company.  We anticipate that the merger will receive all necessary regulatory approvals but only after bidders are qualified to participate in the auction pursuant to a successful Part 1 Application and potentially before Part 2 Applications are due.  Can Entity A submit a Part 1 Application with its parent as Guarantor if it is anticipated that its parent will cease to exist as a result of the merger?

If it is possible that the parent and Guarantor of Entity A could cease to exist during the Auction Process, Entity A should apply to the auction under its own financial standing.  There is no mechanism to update financial information or to change the identity of the Guarantor once it is submitted in the Part 1 Application and once a creditworthiness assessment has been made.  If Entity A applies under the financial standing of its parent and Guarantor, the Auction Manager will communicate to Entity A through the notification of qualification that Entity A is required to submit a Pre-Auction Letter of Credit and that Entity A’s named parent and Guarantor is required to submit a letter of intent to provide a guaranty for a specific amount that is determined on the basis of the creditworthiness assessment of the named parent and Guarantor.  Entity A could be in a situation where it cannot fulfill the pre-auction security requirements of the Part 2 Application because its (now defunct) parent and Guarantor cannot provide a letter of intent to provide a guaranty. 

Entity A should instead proceed through the Part 1 Application relying on its own financial standing.  Entity A will be required to submit a Pre-Auction Letter of Credit and possibly a letter of reference from a bank (if its unsecured credit line under the terms of the Supplier Master Agreement is not sufficient to support its indicative offer).  Entity A would be able to fulfill the pre-auction security requirements if the merger occurs as anticipated and its parent and Guarantor ceases to exist or becomes another entity.  If Entity A is successful at the auction, Entity A can subsequently request of the EDC a creditworthiness assessment for an entity that would serve as Guarantor and that would fulfill the creditworthiness requirements of the Supplier Master Agreement.

11/15/2021, in Association and Confidential Information Rules.

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