Company Debt. (a) Upon the request of Parent, at Parent’s sole expense and subject to Parent’s reasonable cooperation therewith, the Company shall deliver all notices in form and substance reasonably acceptable to Parent and use reasonable best efforts to (i) effect at the Effective Time the payoff of any amounts then outstanding, and termination of all outstanding obligations and commitments (excluding any contingent indemnification obligations that are not then due and payable and that by their terms are to survive the termination) and release of Liens, under the Credit Agreement, dated as of February 25, 2019 (the “Company Credit Agreement”), by and among the Company, JPMorgan Chase Bank, N.A., as Administrative Agent, KeyBank National Association and Fifth Third Bank as Co-Syndication Agents, and Associated Bank, National Association and The Bank of Nova Scotia, as Co-Documentation Agents, and the various lending institutions party thereto, and (ii) prior to the Closing Date, deliver to Parent customary payoff letters, in form and substance reasonably satisfactory to Parent, in connection with the repayment of the Company Credit Agreement and to make arrangements for the holders of such indebtedness to deliver, subject to the receipt of the applicable payoff amounts, customary Lien releases to Parent upon Closing; provided that (i) in no event shall this Section 5.17 require the Company to cause any such satisfaction, termination or release other than at the Effective Time and (ii) Parent shall provide, or cause to be provided, all funds required to effect such repayment or shall confirm the use of cash on hand at the Company to effect such repayment. (b) Upon the request of Parent, at Parent’s sole expense and subject to Parent’s reasonable cooperation therewith, the Company shall, and shall cause the other Acquired Companies to, as reasonably requested by Parent in writing, to (i) deliver any notices or announcements, (ii) provide reasonable cooperation to Parent, Merger Sub or the Surviving Corporation to cause the preparation and delivery of any certificates, legal opinions or other documents and (iii) provide any cooperation reasonably requested by Parent, in each case, such that the consummation of the Transactions does not result in a breach, default or event of default (with or without notice or lapse of time or both) under any indenture with respect to any or all series of the notes of the Company set forth in Section 5.17 of the Company Disclosure Letter (collectively, the “Company Notes”). Parent and its counsel shall be given a reasonable opportunity to review and comment on any such notice, announcement, certificate, legal opinion or other document, in each case before provided to the trustee(s) under the Company Notes or any other Person, and the Company shall give reasonable and good faith consideration to any comments thereon made by Parent and its counsel and shall only distribute such documents once in form approved by Parent, in its sole discretion. (c) Prior to the Closing, the Company shall, and shall cause its Subsidiaries to, provide to Parent all cooperation reasonably requested by Parent that is necessary or reasonably required in connection with the redemption of any or all series of the Company Notes as of or immediately prior to the Effective Time (or with satisfaction and discharge of the Company Notes and underlying indenture or other governing documents as of or immediately prior to the Effective Time), in any case to the extent redeemable at such time, including preparing and delivering all notices of conditional optional redemption in form and substance reasonably acceptable to Parent to effect the redemption pursuant to the requisite provisions of the applicable indenture; provided, however, any notice of redemption shall be irrevocably conditional on the Closing occurring and the date of redemption shall be no earlier than the Closing Date; provided, further, that Parent shall provide, or cause to be provided, all funds required to effect such redemption or shall confirm the use of cash on hand at the Company to effect such redemption. The Company shall use its reasonable best efforts to cause the trustee under the applicable indenture to give any such redemption notice to holders of the applicable Company Notes on the Company’s behalf, and shall timely provide the trustee with such officer’s certificates, legal opinions and other documentation reasonably requested by the trustee in connection therewith. In connection with any redemption contemplated by this Section 5.17, the Company shall, at the written request of the Parent, take such actions, in each case, solely to the extent conditioned on Closing and other conditions specified by Parent, as are required by it pursuant to the terms of the related indenture to facilitate the discharge of the indenture in connection with any such redemption at or immediately prior to the Effective Time, to the extent such discharge and/or defeasance are permitted by such indenture. (d) Notwithstanding anything in this Section 5.17 to the contrary, in no event shall any Acquired Company be required in connection with its obligations under this Section 5.17 to (i) incur or agree to incur any out-of-pocket expenses unless they are promptly reimbursed by Parent, (ii) incur or agree to incur any consent, amendment or similar fee unless Parent provides the funding to the Company therefor, (iii) incur any liability in connection therewith prior to the Closing Date unless contingent upon the occurrence of the Closing, (iv) take any actions that would unreasonably interfere with the ordinary course operations of the Acquired Companies, (v) take any actions that would (A) violate its certificate of incorporation or bylaws (or comparable organizational documents) or (B) violate any applicable Law or (vi) waive or amend any terms of this Agreement. Parent shall indemnify and hold harmless the Company, its Subsidiaries and each of their Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred by them in connection with the actions taken in accordance with this Section 5.17, except to the extent that any of the foregoing arise from the bad faith, gross negligence or willful misconduct of, or material breach of this Agreement by, the Company or its Subsidiaries or their respective Representatives, as applicable. (e) Parent shall, within ten (10) Business Days following request by the Company, reimburse the Company for all documented and reasonable out-of-pocket costs and expenses incurred by the Company or any of its Subsidiaries in connection with such cooperation pursuant to this Section 5.17. Parent shall indemnify and hold harmless the Company, its Subsidiaries and each of their respective Affiliates and each of their respective directors, officers, employees and other Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred by them in connection with the actions taken in accordance with this Section 5.17 and any information utilized in connection therewith, except to the extent that any of the foregoing arise from the bad faith, gross negligence or willful misconduct of, or material breach of this Section 5.17 by, the Company or its Subsidiaries or their respective Affiliates, directors, officers, employees or other Representatives, as applicable. (f) Notwithstanding anything in this Agreement to the contrary, the Company’s breach of any of its covenants and agreements required to be performed by it under Section 5.17(c) will not be considered in determining the satisfaction of the conditions in ARTICLE VI.
Appears in 2 contracts
Samples: Merger Agreement (National General Holdings Corp.), Merger Agreement (Allstate Corp)
Company Debt. (a) Upon Parent agrees to execute and deliver, or cause to be executed and delivered, by or on behalf of the request Surviving Corporation, at or prior to the Effective Time, one or more supplemental indentures, guarantees, and other instruments required for the due assumption of the Company’s obligations to the extent required by the terms of any outstanding debt securities, Trust Preferred Securities or related guarantees. Prior to the Closing Date, the Company and Parent shall cooperate to prepare any instrument required by the documentation governing such outstanding debt securities, Trust Preferred Securities or related guarantees pursuant to which Parent shall assume the obligations of the Company with respect to outstanding debt securities, Trust Preferred Securities or related guarantees as of the Closing (“Supplemental Instruments”) and any related certificates and other documents required by the documentation governing such outstanding debt securities, Trust Preferred Securities or related guarantees. On the Closing Date, the Company and Parent, at as and to the extent required by the documentation governing such outstanding debt securities, Trust Preferred Securities or related guarantees, shall execute and deliver any such Supplemental Instrument and any related certificates and other documents.
(b) If requested by Parent’s sole expense and subject to Parent’s reasonable cooperation therewith, the Company shall deliver all notices and take all other actions to facilitate the termination at the Closing of all commitments in form respect of (i) the Senior Term Loan Agreement, dated as of December 18, 2015, by and substance reasonably acceptable between the Company and Capital Bank Corporation, as amended, supplemented or otherwise modified from time to time (the “Existing Loan Facility”) and (ii) the First Capital Bancorp, Inc. Variable Rate Subordinated Note, dated as of January 10, 2014, by and between First Capital Bancorp, Inc. and Franklin Federal Savings (the “First Capital Note”) and the repayment in full on the Closing Date of all obligations in respect of the indebtedness thereunder; provided, that the Company and Parent shall cooperate to provide any funds required to effect all such repayments at or prior to the Closing. In furtherance and not in limitation of the foregoing, if requested by Parent, the Company shall use reasonable best efforts to deliver to Parent at least two (i2) effect at the Effective Time the payoff of any amounts then outstanding, and termination of all outstanding obligations and commitments (excluding any contingent indemnification obligations that are not then due and payable and that by their terms are to survive the termination) and release of Liens, under the Credit Agreement, dated as of February 25, 2019 (the “Company Credit Agreement”), by and among the Company, JPMorgan Chase Bank, N.A., as Administrative Agent, KeyBank National Association and Fifth Third Bank as Co-Syndication Agents, and Associated Bank, National Association and The Bank of Nova Scotia, as Co-Documentation Agents, and the various lending institutions party thereto, and (ii) Business Days prior to the Closing Date, deliver to Parent customary Date an executed payoff letters, in form and substance reasonably satisfactory to Parent, in connection with the repayment of the Company Credit Agreement and to make arrangements for the holders of such indebtedness to deliver, subject to the receipt of the applicable payoff amounts, customary Lien releases to Parent upon Closing; provided that (i) in no event shall this Section 5.17 require the Company to cause any such satisfaction, termination or release other than at the Effective Time and (ii) Parent shall provide, or cause to be provided, all funds required to effect such repayment or shall confirm the use of cash on hand at the Company to effect such repayment.
(b) Upon the request of Parent, at Parent’s sole expense and subject to Parent’s reasonable cooperation therewith, the Company shall, and shall cause the other Acquired Companies to, as reasonably requested by Parent in writing, to (i) deliver any notices or announcements, (ii) provide reasonable cooperation to Parent, Merger Sub or the Surviving Corporation to cause the preparation and delivery of any certificates, legal opinions or other documents and (iii) provide any cooperation reasonably requested by Parent, in each case, such that the consummation of the Transactions does not result in a breach, default or event of default (with or without notice or lapse of time or both) under any indenture letter with respect to any or all series of the notes of Existing Credit Facility and the Company set forth in Section 5.17 of the Company Disclosure Letter First Capital Note (collectively, the “Company NotesPayoff Letters”). Parent and its counsel shall be given a reasonable opportunity to review and comment on any such notice, announcement, certificate, legal opinion or other document, in each case before provided to the trustee(s) under the Company Notes or any other Person, and the Company shall give reasonable and good faith consideration to any comments thereon made by Parent and its counsel and shall only distribute such documents once in form approved by Parent, in its sole discretion.
(c) Prior to the Closing, the Company shall, and shall cause its Subsidiaries to, provide to Parent all cooperation reasonably requested by Parent that is necessary or reasonably required in connection with the redemption of any or all series of the Company Notes as of or immediately prior to the Effective Time (or with satisfaction and discharge of the Company Notes and underlying indenture or other governing documents as of or immediately prior to the Effective Time), in any case to the extent redeemable at such time, including preparing and delivering all notices of conditional optional redemption in form and substance reasonably acceptable to Parent to effect the redemption pursuant to the requisite provisions customary for transactions of the applicable indenture; providedthis type, however, any notice of redemption shall be irrevocably conditional on the Closing occurring and the date of redemption shall be no earlier than the Closing Date; provided, further, that Parent shall provide, or cause to be provided, all funds required to effect such redemption or shall confirm the use of cash on hand at the Company to effect such redemption. The Company shall use its reasonable best efforts to cause the trustee under the applicable indenture to give any such redemption notice to holders of the applicable Company Notes on the Company’s behalf, and shall timely provide the trustee with such officer’s certificates, legal opinions and other documentation reasonably requested by the trustee in connection therewith. In connection with any redemption contemplated by this Section 5.17, the Company which Payoff Letters shall, at among other things, include the written request of the Parent, take such actions, in each case, solely to the extent conditioned on Closing and other conditions specified by Parent, as are required by it pursuant to the terms of the related indenture to facilitate the discharge of the indenture in connection with any such redemption at or immediately prior to the Effective Time, to the extent such discharge and/or defeasance are permitted by such indenturerespective payoff amounts.
(d) Notwithstanding anything in this Section 5.17 to the contrary, in no event shall any Acquired Company be required in connection with its obligations under this Section 5.17 to (i) incur or agree to incur any out-of-pocket expenses unless they are promptly reimbursed by Parent, (ii) incur or agree to incur any consent, amendment or similar fee unless Parent provides the funding to the Company therefor, (iii) incur any liability in connection therewith prior to the Closing Date unless contingent upon the occurrence of the Closing, (iv) take any actions that would unreasonably interfere with the ordinary course operations of the Acquired Companies, (v) take any actions that would (A) violate its certificate of incorporation or bylaws (or comparable organizational documents) or (B) violate any applicable Law or (vi) waive or amend any terms of this Agreement. Parent shall indemnify and hold harmless the Company, its Subsidiaries and each of their Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred by them in connection with the actions taken in accordance with this Section 5.17, except to the extent that any of the foregoing arise from the bad faith, gross negligence or willful misconduct of, or material breach of this Agreement by, the Company or its Subsidiaries or their respective Representatives, as applicable.
(e) Parent shall, within ten (10) Business Days following request by the Company, reimburse the Company for all documented and reasonable out-of-pocket costs and expenses incurred by the Company or any of its Subsidiaries in connection with such cooperation pursuant to this Section 5.17. Parent shall indemnify and hold harmless the Company, its Subsidiaries and each of their respective Affiliates and each of their respective directors, officers, employees and other Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred by them in connection with the actions taken in accordance with this Section 5.17 and any information utilized in connection therewith, except to the extent that any of the foregoing arise from the bad faith, gross negligence or willful misconduct of, or material breach of this Section 5.17 by, the Company or its Subsidiaries or their respective Affiliates, directors, officers, employees or other Representatives, as applicable.
(f) Notwithstanding anything in this Agreement to the contrary, the Company’s breach of any of its covenants and agreements required to be performed by it under Section 5.17(c) will not be considered in determining the satisfaction of the conditions in ARTICLE VI.
Appears in 2 contracts
Samples: Merger Agreement (SOUTH STATE Corp), Merger Agreement (Park Sterling Corp)
Company Debt. (a) Upon the request of Parent, at Parent’s sole expense and subject to Parent’s reasonable cooperation therewith, the Company shall deliver all notices in form and substance reasonably acceptable to Parent and use reasonable best efforts to (i) effect at the Effective Time the payoff of any amounts then outstanding, and termination of all outstanding obligations and commitments (excluding any contingent indemnification obligations that are not then due and payable and that by their terms are to survive the termination) and release of Liens, under the Credit Agreement, dated as of February 25, 2019 (the “Company Credit Agreement”), by and among the Company, JPMorgan Chase Bank, N.A., as Administrative Agent, KeyBank National Association and Fifth Third Bank as Co-Syndication Agents, and Associated Bank, National Association and The Bank of Nova Scotia, as Co-Documentation Agents, and the various lending institutions party thereto, and (ii) prior to the Closing Date, deliver to Parent customary payoff letters, in form and substance reasonably satisfactory to Parent, in connection with the repayment of the Company Credit Agreement and to make arrangements for the holders of such indebtedness to deliver, subject to the receipt of the applicable payoff amounts, customary Lien releases to Parent upon Closing; provided that (i) in no event shall this Section 5.17 require the Company to cause any such satisfaction, termination or release other than at the Effective Time and (ii) Parent shall provide, or cause to be provided, all funds required to effect such repayment or shall confirm the use of cash on hand at the Company to effect such repayment.
(b) Upon the request of Parent, at Parent’s sole expense and subject to Parent’s reasonable cooperation therewith, the Company shall, and shall cause the other Acquired Companies to, as reasonably requested by Parent in writing, to (i) deliver any notices or announcements, (ii) provide reasonable cooperation to Parent, Merger Sub or the Surviving Corporation to cause the preparation and delivery of any certificates, legal opinions or other documents and (iii) provide any cooperation reasonably requested by Parent, in each case, such that the consummation of the Transactions does not result in a breach, default or event of default (with or without notice or lapse of time or both) under any indenture with respect to any or all series of the notes of the Company set forth in Section 5.17 of the Company Disclosure Letter (collectively, the “Company Notes”). Parent and its counsel shall be given a reasonable opportunity to review and comment on any such notice, announcement, certificate, legal opinion or other document, in each case before provided to the trustee(s) under the Company Notes or any other Person, and the Company shall give reasonable and good faith consideration to any comments thereon made by Parent and its counsel and shall only distribute such documents once in form approved by Parent, in its sole discretion.
(c) Prior to the Closing, the Company shall, and shall cause its Subsidiaries to, provide deliver all notices and take all other actions to facilitate (i) the termination at the Closing of all commitments in respect of (x) the Fourth Amended and Restated Loan Agreement between the Company and U.S. Bank National Association, as administrative agent, and the other parties thereto, dated as of February 22, 2013, as amended, supplemented, restated or otherwise modified (the “Existing Credit Facility”), (y) the Brokerage Credit Agreement (Secured Customer Facility A) between the Company and U.S. Bank National Association, dated as of February 28, 2011, as amended, supplemented, restated or otherwise modified (the “Existing U.S. Bank Uncommitted Line”) and (z) the Uncommitted Revolving Loan Agreement between the Company and Fifth Third Bank, dated as of November 18, 2009, as amended, supplemented, restated or otherwise modified (together with the Existing Credit Facility and the Existing U.S. Bank Uncommitted Line, the “Existing Indebtedness”), (ii) the repayment in full on the Closing Date of all obligations with respect to the Existing Indebtedness and (iii) the release on the Closing Date of any Liens securing such Existing Indebtedness and guarantees, if any, in connection therewith. In furtherance and not in limitation of the foregoing, the Company and its Subsidiaries shall use reasonable best efforts to deliver to Parent all cooperation reasonably requested by Parent at least two (2) business days prior to the Closing Date executed payoff letters with respect to the Existing Indebtedness (the “Payoff Letters”) in form and substance customary for transactions of this type, from the applicable agent on behalf of the persons to whom such indebtedness is owed, which Payoff Letters together with any related release documentation shall, among other things, include the payoff amount and provide that is necessary or reasonably required Liens and guarantees granted in connection with the redemption of any or all series Existing Indebtedness relating to the assets, rights and properties of the Company Notes as and its Subsidiaries securing such indebtedness, shall, upon the payment of the amount set forth in the applicable Payoff Letters at or immediately prior to the Effective Time Closing, be released and terminated.
(or with satisfaction and discharge of the Company Notes and underlying indenture or other governing documents as of or immediately prior to the Effective Time), in any case to the extent redeemable at such time, including preparing and delivering all notices of conditional optional redemption in form and substance reasonably acceptable to Parent to effect the redemption pursuant to the requisite provisions of the applicable indenture; provided, however, any notice of redemption shall be irrevocably conditional on the Closing occurring and the date of redemption shall be no earlier than the Closing Date; provided, further, that Parent shall provide, or cause to be provided, all funds required to effect such redemption or shall confirm the use of cash on hand at the Company to effect such redemption. b) The Company shall, and shall cause its Subsidiaries to, (i) use its reasonable best efforts to cause seek to facilitate the trustee continued effectiveness of the Promissory Note owed by the Company to The Northwestern Mutual Life Insurance Company, dated as of February 10, 2004 and the Loan Documents related thereto (collectively, the “NML Promissory Note”), following the Closing without any default, event of default, mandatory repayment obligation, or other similar right of any lender thereunder or holder thereof having then occurred or being continuing (including as a result of the consummation of the transactions contemplated hereby), or, at Parent’s written request, the repayment at Closing of all amounts due under the applicable indenture to give any such redemption notice to holders NML Promissory Note and the termination of the applicable Company Notes on the Company’s behalfLoan Documents related thereto, and shall timely provide (ii) promptly following the trustee receipt of a written request from Parent, deliver all notices and take all actions to facilitate the redemption, defeasance, amendment (including by consent solicitation), satisfaction and discharge and/or other action with such officer’s certificates, legal opinions and other documentation reasonably requested respect to the 6.125% Senior Notes due 2021 issued by the trustee in connection therewith. In connection with any redemption contemplated by this Section 5.17, the Company shall, at the written request of the Parent, take such actions, in each case, solely to the extent conditioned on Closing and other conditions specified by Parent, as are required by it pursuant to the terms Indenture dated as of July 11, 2011 between the related indenture to facilitate the discharge Company and The Bank of the indenture in connection with any New York Mellon Trust Company, N.A.; provided, that no such redemption at or immediately prior to the Effective Time, to the extent such discharge and/or defeasance are permitted by such indenture.
(d) Notwithstanding anything in this Section 5.17 to the contrary, in no event action shall any Acquired Company be required in connection with its obligations under this Section 5.17 to (i) incur or agree to incur any out-of-pocket expenses unless they are promptly reimbursed by Parent, (ii) incur or agree to incur any consent, amendment or similar fee unless Parent provides the funding to the Company therefor, (iii) incur any liability in connection therewith prior to the Closing Date unless contingent upon the occurrence of the Closing, (iv) take any actions that would unreasonably interfere with the ordinary course operations of the Acquired Companies, (v) take any actions that would (A) violate its certificate of incorporation or bylaws (or comparable organizational documents) or (B) violate any applicable Law or (vi) waive or amend any terms of this Agreement. Parent shall indemnify and hold harmless the Company, its Subsidiaries and each of their Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred by them in connection with the actions be taken in accordance with this Section 5.17, except to the extent that any of the foregoing arise from the bad faith, gross negligence or willful misconduct of, or material breach of this Agreement by, the Company or its Subsidiaries or their respective Representatives, as applicable.
(e) Parent shall, within ten (10) Business Days following request by the Company, reimburse the Company for all documented and reasonable out-of-pocket costs and expenses incurred by the Company or any of its Subsidiaries unless the effect of such action will not be effective in the absence of a Closing. In connection with such cooperation pursuant any of the foregoing, the Company shall coordinate and consult with Parent with respect to this Section 5.17all communications with its lenders and creditors and documentation to effectuate the foregoing. Parent shall indemnify cooperate in good faith with the Company and hold harmless the Company, its Subsidiaries and each of their respective Affiliates and each of their respective directors, officers, employees and other Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred by them in connection with the actions taken foregoing, including (in accordance with this Section 5.17 the event Parent does not request the repayment at Closing of all amounts due under the NML Promissory Note as described above) by causing Parent or one of its Subsidiaries to be substituted, as of the Closing, for the Trust and Xxxxxx X. Xxxxx (the “Existing Guarantors”) as guarantor of the NML Promissory Note pursuant to the Guarantee of Recourse Obligations, dated February 10, 2004, made by Xxxxxx X. Xxxxx and the Trust in favor of The Northwestern Mutual Life Insurance Company (the “Guarantee”) (it being agreed that neither party shall be required to pay any information utilized unreasonable fee related thereto); provided, that in the event that Parent or one of its Subsidiaries is not substituted for the Existing Guarantors as guarantor of the NML Promissory Note under the Guarantee, Parent shall promptly reimburse the Existing Guarantors for any and all payments made at any time after the Closing in connection therewith, except to with their obligations under the extent that any of the foregoing arise from the bad faith, gross negligence or willful misconduct of, or material breach of this Section 5.17 by, the Company or its Subsidiaries or their respective Affiliates, directors, officers, employees or other Representatives, as applicableGuarantee.
(f) Notwithstanding anything in this Agreement to the contrary, the Company’s breach of any of its covenants and agreements required to be performed by it under Section 5.17(c) will not be considered in determining the satisfaction of the conditions in ARTICLE VI.
Appears in 1 contract
