Company Financing Cooperation. The Company shall, and shall cause its Subsidiaries to, and shall use commercially reasonable efforts to cause its and their Representatives to, use commercially reasonable efforts to, at Parent’s expense, provide such cooperation reasonably requested by Parent in connection with the Financing and Debt Refinancing (including, without limitation, assumptions, guarantees, amendments, supplements, modifications, refinancings, replacements, repayments, terminations or prepayments of existing financing arrangements) as Parent may reasonably determine necessary or advisable in connection with the completion of the Financing and Debt Refinancing. Such cooperation shall include using commercially reasonable efforts to (A) participate in a reasonable number of meetings, calls, rating agency and other presentations, drafting sessions, roadshows and due diligence sessions in connection with the Financing and Debt Refinancing, (B) assist Parent with Parent’s efforts to obtain ratings in respect of Parent and public ratings in respect of any debt issued or borrowed as part of any financing arrangements, or assumed or intended to remain outstanding following the consummation of the Mergers, from Fitch Ratings, Inc., Standard & Poor’s Financial Services LLC and Xxxxx’x Investor Services, Inc., (C) provide reasonable and timely assistance with the preparation by Parent of materials for presentations, offering memoranda, prospectuses, bank information memoranda and similar documents required in connection with such financing arrangements, and materials for rating agency presentations for any financing arrangements, (D) (1) furnish Parent the historical financial information of the Company specified in paragraph 7 in Exhibit C of the Debt Commitment Letter as in effect on the date hereof (the “Required Information”) and (2) furnish Parent and its potential financing sources as promptly as reasonably practicable such historical information as may be reasonably necessary for the Required Information to remain Compliant and such other pertinent historical financial and other customary information (including assistance in Parent’s preparing projections, financial statements, forecasts and other forward-looking information) to the extent reasonably requested by Parent in connection with the preparation by Parent of customary information to be used for the Financing; (E) cause its independent registered public accounting firm (1) to cooperate with Parent in connection with any financing arrangements, including, to the extent applicable, by providing customary “comfort letters” (including customary “negative assurances”) and (2) to provide customary assistance with the due diligence activities of Parent and the financing sources and the preparation by Parent of any customary pro forma financial statements, and customary consents to the inclusion of audit reports in any relevant marketing materials, registration statements and related government filings; (F) attempt to ensure that any financing arrangements benefit from the existing lending relationships of the Company and its Subsidiaries; (G) obtain such consents, approvals and authorizations from third parties required in connection with the Financing and Debt Refinancing which may be reasonably requested by Parent; (H) assist with the preparation of customary definitive financing documentation as may be reasonably requested by Parent, including pledge and security documents, guarantees, instruments, copies of any existing surveys, UCC financing statements, filings, security agreements, control agreements, title insurance and other matters ancillary to, or required in connection with, the Financing and Debt Refinancing (and delivering stock certificates for certificated securities and (with transfer powers executed in blank) of the Company and its domestic Subsidiaries to the extent required on the Closing Date by the terms of any financing arrangements) (it being understood and agreed that all solvency or similar certificates shall be executed and delivered by officers of Parent); (I) cause officers of the Company and its Subsidiaries to participate in the negotiation of the Definitive Debt Financing Agreements and the Debt Refinancing and (J) to the extent requested in writing at least ten Business Days prior to the Closing, deliver at least three Business Days prior to the Closing all documentation and other information with respect to the Company and its Subsidiaries that are required by regulatory authorities under applicable “know-your-customer” rules and regulations, including the USA PATRIOT Act.
Appears in 2 contracts
Samples: Merger Agreement (Care Capital Properties, Inc.), Merger Agreement (Sabra Health Care REIT, Inc.)
Company Financing Cooperation. (a) The Company shallshall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange the Financing and transactions related to the Financing, including using reasonable best efforts to
(i) negotiate and enter into definitive agreements with respect thereto, (ii) satisfy (or obtain a waiver of) on a timely basis all conditions to obtaining the Financing, and (iii) consummate the Financing at or prior to the Closing Date.
(b) The Company shall cause use its Subsidiaries reasonable best efforts to, and shall use commercially reasonable efforts to cause its and their Representatives to, use commercially reasonable efforts to, at Parent’s expenseon a timely basis, provide such all customary cooperation that is reasonably requested by Parent to assist in connection with obtaining the Financing and Debt Refinancing (includingFinancing. The Company shall use its reasonable best efforts to obtain an amendment to the credit facilities set forth on Section 7.15(b) of the Company Disclosure Schedule so that, without limitationafter giving effect to the Merger, assumptionsthere exists no default or event of default with respect to such credit facilities; provided, guarantees, amendments, supplements, modifications, refinancings, replacements, repayments, terminations or prepayments of existing financing arrangements) as Parent may reasonably determine necessary or advisable that any such amendment would be conducted in connection coordination with the completion syndication of the Financing and Debt RefinancingFinancing. Such Without limiting the generality of the foregoing, such cooperation shall in any event include using commercially reasonable best efforts to with respect to: (Ai) participate participating in a reasonable number of meetings, calls, rating agency meetings and other presentations, drafting sessions, roadshows and providing and participating in reasonable and customary due diligence sessions diligence, in connection each case at mutually agreeable times and places and with reasonable advance notice, (ii) furnishing the Financing and Debt Refinancing, (B) assist Parent with Parent’s efforts to obtain ratings in respect of Parent and public ratings in respect of any debt issued or borrowed as part of any financing arrangements, or assumed or intended to remain outstanding following the consummation of the Mergers, from Fitch Ratings, Inc., Standard & Poor’s Financial Services LLC and Xxxxx’x Investor Services, Inc., (C) provide reasonable and timely assistance with the preparation by Parent of materials for presentations, offering memoranda, prospectuses, bank information memoranda and similar documents required in connection Sources with such financing arrangements, financial and materials for rating agency presentations for any financing arrangements, (D) (1) furnish Parent the historical financial information of the Company specified in paragraph 7 in Exhibit C of the Debt Commitment Letter as in effect on the date hereof (the “Required Information”) and (2) furnish Parent and its potential financing sources as promptly as reasonably practicable such historical other pertinent information as may be reasonably necessary for the Required Information requested to remain Compliant and such other pertinent historical financial and other customary information (including assistance in Parent’s preparing projections, financial statements, forecasts and other forward-looking information) to the extent reasonably requested by Parent in connection with the preparation by Parent of customary information to be used for consummate the Financing; (E) cause its independent registered public accounting firm (1) to cooperate with Parent in connection with any financing arrangements, including, to the extent applicable, by providing customary “comfort letters” (including customary “negative assurances”) and (2) to provide customary assistance with the due diligence activities of Parent and the financing sources and the preparation by Parent of any customary pro forma financial statements, and customary consents to the inclusion of audit reports in any relevant marketing materials, registration statements and related government filings; (F) attempt to ensure that any financing arrangements benefit from the existing lending relationships of information regarding the Company and its Subsidiaries; (G) obtain such consents, approvals subsidiaries reasonably necessary to assist Parent and authorizations from third parties Ultimate Parent in preparing financial statements and financial data of the type required in connection with by Regulation S-X and Regulation S-K under the Financing Securities Act and Debt Refinancing which may be reasonably requested by Parent; (H) assist with applicable to a registration statement under the preparation of customary definitive financing documentation as may be reasonably requested by ParentSecurities Act on Form F-3 and/or Form F-10, including pledge delivery of (A) audited consolidated balance sheets and security documentsrelated audited statements of income, guarantees, instruments, copies of any existing surveys, UCC financing statements, filings, security agreements, control agreements, title insurance stockholders' equity and other matters ancillary to, or required in connection with, the Financing and Debt Refinancing (and delivering stock certificates for certificated securities and (with transfer powers executed in blank) cash flows of the Company and its domestic Subsidiaries for each of the three fiscal years most recently ended at least sixty (60) days prior to the extent required on the Closing Date by the terms of any financing arrangements) (it being understood and agreed that all solvency or similar certificates no such audited annual financial statements shall be executed and delivered by officers required under this clause (A) in respect of Parent); any fiscal year ended less than sixty (I60) cause officers of the Company and its Subsidiaries to participate in the negotiation of the Definitive Debt Financing Agreements and the Debt Refinancing and (J) to the extent requested in writing at least ten Business Days prior to the Closing, deliver at least three Business Days days prior to the Closing all documentation Date) and other information with respect (B) unaudited consolidated balance sheets and related unaudited statements of income, stockholders' equity and cash flows of the Company for each subsequent fiscal quarter ended at least forty (40) days prior to the Company Closing Date (it being understood and its Subsidiaries agreed that are no such unaudited quarterly financial statements shall be required by regulatory authorities under applicable “knowthis clause (B) in respect of any fiscal quarter ended less than forty (40) days prior to the Closing Date) (the financial statements described in sub-your-customer” rules clauses (A) and regulations(B) of this clause (ii), including the USA PATRIOT Act."Required Financial Statements"),
Appears in 2 contracts
Samples: Merger Agreement, Agreement and Plan of Merger
Company Financing Cooperation. (a) The Company shall, and shall cause its Subsidiaries subsidiaries and its and their respective Representatives to, use its and shall use their respective commercially reasonable efforts to cause its and their Representatives to, use commercially reasonable efforts to, at Parent’s expense, provide such cooperation as may be reasonably requested by Parent or the Merger Subs in connection with the Financing to be made by Parent, including, as applicable, by: (i) using reasonable best efforts to, upon reasonable advance notice, cause the Company’s senior management to participate in a reasonable number of due diligence meetings, drafting sessions, rating agency presentations, lender meetings, investor road shows and meetings with parties acting as arrangers, bookrunners, underwriters, initial purchasers, placement agents and/or other lenders and investors for the Financing; (ii) providing such customary historical financial and other customary pertinent information with respect to the Company and its subsidiaries as may be reasonably requested by Parent for use in connection with the Financing and Debt Refinancing (includingdesignating, without limitationupon request, assumptions, guarantees, amendments, supplements, modifications, refinancings, replacements, repayments, terminations or prepayments of existing financing arrangements) as Parent may reasonably determine necessary or advisable in connection with the completion of the Financing and Debt Refinancing. Such cooperation shall include using commercially reasonable efforts whether any such information is suitable to (A) participate in a reasonable number of meetings, calls, rating agency be made available to lenders and other presentations, drafting sessions, roadshows investors who do not wish to receive material non-public information with respect to the Company and due diligence sessions its subsidiaries; (iii) providing information regarding the Company and its subsidiaries reasonably necessary to assist Parent in preparing pro forma financial statements if Parent determines such pro forma financial statements are legally required or customary in connection with the Financing and Debt Refinancingor any other SEC filing required to be made by Parent, (B) assist Parent with Parent’s efforts but in any case including financial statements giving pro forma effect to obtain ratings in respect of Parent and public ratings in respect of any debt issued or borrowed as part of any financing arrangements, or assumed or intended to remain outstanding following the consummation sale of the Mergers1,932 stores, from Fitch Ratings, Inc., Standard & Poor’s Financial Services LLC and Xxxxx’x Investor Services, Inc., (C) provide reasonable and timely assistance with the preparation by Parent of materials for presentations, offering memoranda, prospectuses, bank information memoranda and similar documents required in connection with such financing arrangementsthree distribution centers, and materials for rating agency presentations for any financing arrangementsassets related thereto to Walgreen Co. pursuant to the WBA Asset Purchase Agreement, (D) (1) furnish Parent the historical financial information of it being understood that the Company specified in paragraph 7 in Exhibit C of shall not be required to change its fiscal year, and it being further understood that the Debt Commitment Letter as in effect on pro forma financial statements delivered pursuant to Section 3.8 hereof, satisfy the date hereof Company’s obligation, except if similar financing statements for a future period shall be reasonably required; (iv) providing reasonable assistance to the “Required Information”) and (2) furnish Parent and its potential financing sources as promptly as reasonably practicable such historical information as may be reasonably necessary for the Required Information to remain Compliant and such other pertinent historical financial and other customary information (including assistance in Parent’s preparing projections, financial statements, forecasts and other forward-looking information) to the extent reasonably requested by Parent subsidiaries in connection with the preparation by Parent of customary offering memoranda, private placement memoranda, prospectuses, prospectus supplements, registration statements, bank confidential information memoranda, lender and investor presentations, road show materials, rating agency presentations and similar documents and materials, in each case, under this clause (iv), in connection with the Financing, and reasonably assisting with the preparation of the definitive documentation for the Financing, including by providing information reasonably necessary for the completion of any schedules thereto, in each case to the extent, and solely to the extent, such materials relate to information concerning the Company and its subsidiaries and reasonably assisting in preparing certificates and other documentation required to be used for delivered in connection with the Financing; (Ev) using commercially reasonable efforts to cause its independent registered public accounting firm (1) Deloitte & Touche LLP to cooperate with Parent Parent, including by participating in connection with any financing arrangementsaccounting due diligence sessions upon reasonable advance notice, includingusing reasonable best efforts to obtain the consent of, and facilitate the delivery of, customary comfort letters (including as to the extent applicablecustomary negative assurance) from, Deloitte & Touche LLP (including by providing customary “comfort letters” (including management letters and requesting legal letters to obtain such consent) if reasonably necessary or customary “negative assurances”) and (2) to provide customary assistance with for Parent’s use of the due diligence activities of Parent and the financing sources and the preparation by Parent of any customary pro forma financial statements, and customary consents to the inclusion of audit reports in any relevant marketing materials, registration statements and related government filings; (F) attempt to ensure that any financing arrangements benefit from the existing lending relationships of the Company and its Subsidiaries; (G) obtain such consents, approvals and authorizations from third parties required subsidiaries in any marketing or offering materials to be used in connection with the Financing and Debt Refinancing which may be reasonably requested by ParentFinancing; (Hvi) assist cooperating reasonably with the preparation of any customary definitive financing documentation as may be reasonably requested due diligence requests by Parent, including pledge its Financing Sources and security documentstheir respective legal counsel; (vii) reasonably assisting Parent in obtaining corporate, guaranteescorporate family, instrumentscredit, copies of facility and securities ratings from rating agencies; (viii) furnishing promptly (and in any existing surveys, UCC financing statements, filings, security agreements, control agreements, title insurance event at least three (3) days prior to the Closing Date) all documentation and other matters ancillary to, or required in connection with, the Financing and Debt Refinancing (and delivering stock certificates for certificated securities and (with transfer powers executed in blank) of the Company and its domestic Subsidiaries to the extent required on the Closing Date by the terms of any financing arrangements) (it being understood and agreed that all solvency or similar certificates shall be executed and delivered by officers of Parent); (I) cause officers of the Company and its Subsidiaries to participate in the negotiation of the Definitive Debt Financing Agreements and the Debt Refinancing and (J) to the extent information reasonably requested in writing at least ten Business Days prior to the Closing, deliver at least three (10) Business Days prior to the Closing all documentation and other information with respect to the Company and its Subsidiaries that are Date by parties acting as lead arrangers, agents or underwriters, as applicable, required by regulatory authorities any Governmental Entity in connection with the Financing under applicable “know-your-know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT U.S. Patriot Act; (ix) providing information reasonably requested by Parent (to the extent reasonably available to the Company or a subsidiary of the Company) to assist Parent in obtaining appraisals (including appraisals compliant with the Financial Institutions Reform, Recovery and Enforcement Act of 1989) required to be prepared with respect to properties of the Company and its subsidiaries under applicable Law, and in preparing borrowing base certificates; (x) assisting with the preparation of a Company perfection certificate; (xi) facilitating the pledging of collateral for the Financing; (xi) assisting in the completion of a customary field examination and appraisal (including, but not limited to, inventory and pharmacy appraisals); and (xii) delivering notices of prepayment and/or redemption within the time periods required by the Company Credit Agreement and/or the Company Notes, as the case may be, and using reasonable best efforts to obtain customary payoff letters and lien terminations in respect of the Company Credit Agreement and instructions of discharge in respect of the Company Indentures, in each case, to the extent, and in the manner contemplated by, this Section 7.14 and Section 7.15 hereof, and giving any other necessary notices to allow for the payoff, discharge and termination of all indebtedness required by this Agreement to be repaid and terminated (subject to the provisions of this Section 7.14 and Section 7.15). The Company hereby consents to the use of the trademarks, service marks and logos of the Company and its subsidiaries in connection with the arrangement of the Financing if such trademarks, service marks and logos are used solely in a manner that is not intended to or reasonably likely to harm or disparage the Company or any of its subsidiaries or the reputation or goodwill of the Company or any of its subsidiaries or any of their logos and on such other customary terms and conditions as the Company shall reasonably impose. Notwithstanding the foregoing, nothing herein shall require such cooperation to the extent it would (i) unreasonably disrupt the ordinary conduct of the business or operations of the Company or its subsidiaries, (ii) require the Company or its subsidiaries to agree to pay any fees, reimburse any expenses or otherwise incur any actual or potential liability or give any indemnities, pledge any collateral or make any prepayment of indebtedness prior to the Effective Time unless Parent reimburses or is required to reimburse or indemnify the Company or its subsidiaries pursuant to this Agreement or otherwise agrees to do so, (iii) require the Company or its subsidiaries to take any action that would reasonably be expected, in the reasonable judgment of the Company after consultation with its legal counsel, to conflict with, or result in any violation or breach of, any applicable (A) Laws or (B) obligations of confidentiality (not created in contemplation hereof) binding on the Company or its subsidiaries (provided that in the event that the Company or its subsidiaries do not provide information in reliance on the exclusion in this clause (B), the Company and its subsidiaries shall provide notice to Parent promptly that such information is being withheld (but solely if providing such notice would not violate such obligation of confidentiality)) (iv) require the Company or its subsidiaries to (A) subject to the requirements of Section 7.14(a)(v) and Section 7.15, pass resolutions or consents, approve or authorize the execution of, or execute, any document, agreement, certificate or instrument or take any other corporate action with respect to the Financing or (B) provide or cause its legal counsel to provide any legal opinions that are not required in connection with the transactions contemplated by Section 7.15 or (v) require the Company to prepare separate financial statements for any of its subsidiaries, financial statements pursuant to Rules 3-10 other than consistent with past practice (other than assisting with preparation of a footnote in Parent’s financial statements) or 3-16 of Regulation S-X or any new compensation information or (vi) require the Company or any subsidiary thereof to incur additional indebtedness (including guarantees), such that the Company is unable to satisfy any applicable debt incurrence requirement at Closing in the merger covenant in the Company Indentures. Parent acknowledges and agrees that any access or information contemplated to be provided by the Company or any of its subsidiaries pursuant to this Section 7.14 shall, to the extent such information constitutes material non-public information of the Company, only be provided to other Persons, including any Financing Sources, if such other Person affirmatively agrees to maintain the confidentiality of such information pursuant to a customary confidentiality agreement and to comply with all federal and state securities laws and regulations applicable to such information.
(b) To the extent the Company Credit Agreement has not previously been discharged or terminated on or prior to the second (2nd) Business Day prior to the Closing Date, the Company shall use its reasonable best efforts to cause the agent under each Company Credit Agreement to deliver to Parent a copy of a draft payoff letter (subject to delivery of funds as arranged by Parent) with respect to each Company Credit Agreement (each, a “Payoff Letter” and collectively, the “Payoff Letters”), in customary form, which Payoff Letters shall (i) indicate the total amount required to be paid to fully satisfy all principal, interest, prepayment premiums, penalties, breakage costs and any other monetary obligations then due and payable under the relevant Company Credit Agreement as of the anticipated Closing Date (and the daily accrual thereafter) (such amount payable with respect to any Payoff Letter and Company Credit Agreement, the “Payoff Amount”), (ii) state that upon receipt of the Payoff Amount under each such Payoff Letter, the related Company Credit Agreement and all related loan documents shall be terminated (but excluding any contingent obligations, including, without limitation, indemnification obligations, that in any such case are not then due and payable and that by their terms are to survive the termination of any Company Credit Agreement and the related loan documents), and (iii) provide that all Liens and all guarantees in connection therewith relating to the assets and properties of the Company or any of its subsidiaries securing such obligations shall be released and terminated upon the payment of each Payoff Amount on the Closing Date (subject to delivery of funds as arranged by Parent and the filing of appropriate UCC-3 termination statements and other termination filings). Except as set forth in Section 7.15(d), the Company shall be unconditionally obligated to provide to the agent under each Company Credit Agreement the Payoff Amount required under each Payoff Letter substantially simultaneously with the Closing.
(c) Parent shall, promptly upon written request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs, fees and expenses (including attorneys’ fees and expenses) to the extent such costs, fees and expenses are incurred by the Company, its subsidiaries or their respective Representatives in connection with any such party complying with the obligations under this Section 7.14, and Parent shall indemnify and hold harmless the Company, its subsidiaries and their respective Representatives from and against any and all losses, damages, claims, interest, awards, judgments, penalties, costs or expenses suffered or incurred by them to the extent such losses, damages, claims, interest, awards, judgments, penalties, costs or expenses arose out of the actions taken by the Company, its subsidiaries or their respective Representatives pursuant to this Section 7.14 (other than information provided by the Company, its subsidiaries or Representatives in writing for express use therein), except in the event such losses, damages, claims, interest, awards, judgments, penalties, costs or expenses are determined by a final non-appealable judgment of a court of competent jurisdiction to have arisen out of or resulted from the gross negligence or willful misconduct of the Company, any of its subsidiaries or any of their respective Representatives.
Appears in 2 contracts
Samples: Merger Agreement (Albertsons Companies, LLC), Merger Agreement (Rite Aid Corp)
Company Financing Cooperation. (a) The Company shall, and shall cause its the Company Subsidiaries to, and shall use commercially reasonable efforts to cause its and their the Company Representatives to, in each case, use commercially reasonable best efforts to, at Parent’s expense, to provide such to Parent and Sub all customary cooperation reasonably requested by Parent or Merger Sub in connection with the Financing and Debt Refinancing (includingany bank financing which will be incurred by Parent, without limitation, assumptions, guarantees, amendments, supplements, modifications, refinancings, replacements, repayments, terminations Merger Sub or prepayments any of existing financing arrangements) as Parent may reasonably determine necessary or advisable their subsidiaries in connection with this Agreement or the completion Transactions, including without limitation bank financing incurred to finance all or a portion of the payoff of the Company Credit Agreement or the Company Receivables Financing Agreement, and the redemption and discharge of the Company Notes (collectively, such bank financing, the “Debt Refinancing. Such cooperation shall include Financing”), including using commercially reasonable best efforts to to:
(Ai) participate (and cause management of Compucom Systems with appropriate seniority and expertise to participate) in a reasonable number of meetings, calls, rating agency and other presentations, drafting sessions, roadshows and due diligence sessions and sessions with rating agencies and assist Parent in connection with obtaining ratings as contemplated by the Financing and Debt Refinancing, Financing;
(Bii) assist Parent with Parent’s efforts to obtain ratings in respect of Parent and public ratings in respect of any debt issued or borrowed as part of any financing arrangements, or assumed or intended to remain outstanding following the consummation of the Mergers, from Fitch Ratings, Inc., Standard & Poor’s Financial Services LLC and Xxxxx’x Investor Services, Inc., (C) provide reasonable and timely assistance Debt Financing Sources with the preparation by Parent of materials for customary rating agency presentations, offering memoranda, prospectuses, bank information memoranda memoranda, lender presentations and similar documents required in connection with such financing arrangements, and materials for rating agency presentations for any financing arrangements, the Debt Financing;
(Diii) (1) furnish Parent the historical solely with respect to financial information of and data derived from the Company specified in paragraph 7 in Exhibit C of Company’s (to the Debt Commitment Letter as in effect on the date hereof (the “Required Information”extent available) and (2) furnish CompuCom Systems’ historical books and records, assist Parent with the preparation of pro forma financial information and pro forma financial statements of Parent and its potential financing sources as promptly as reasonably practicable such historical information as may be reasonably necessary for the Required Information to remain Compliant Subsidiaries, including Compucom Systems and such other pertinent historical financial and other customary information (including assistance in Parent’s preparing projectionsits Subsidiaries, financial statements, forecasts and other forward-looking information) to the extent necessary or reasonably requested required by Parent or the Debt Financing Sources, it being agreed that the Company and the Company Subsidiaries will not be required to actually prepare any such pro forma financial information or pro forma financial statements or provide any information or assistance relating to (A) the proposed debt and equity capitalization or any assumed interest rates, dividends (if any) and fees and expenses relating to such debt or equity capitalization, (B) any post-Closing or pro forma cost savings, synergies, capitalization, ownership or other pro forma adjustments desired to be incorporated into any information used in connection with the preparation by Debt Financing, or (C) any financial information related to Parent or any of customary information to be used for the Financing; (E) cause its independent registered public accounting firm (1) to cooperate with Parent in connection with Subsidiaries or any financing arrangements, including, adjustments that are not directly related to the extent applicable, by providing customary “comfort letters” (including customary “negative assurances”) and (2) to provide customary assistance with the due diligence activities of Parent and the financing sources and the preparation by Parent of any customary pro forma financial statements, and customary consents to the inclusion of audit reports in any relevant marketing materials, registration statements and related government filings; (F) attempt to ensure that any financing arrangements benefit from the existing lending relationships acquisition of the Company by Parent;
(iv) execute and its Subsidiaries; deliver as of the Closing (Gbut not prior to the Closing) obtain such consentsany pledge and security documents, approvals and authorizations from third parties required in connection with the Financing and Debt Refinancing which currency or interest hedging arrangements, other definitive financing documents, or other certificates or documents as may be reasonably requested by Parent or the Debt Financing Sources and otherwise reasonably facilitate the pledging of collateral and the granting of security interests in respect of the Debt Financing, it being understood that such documents will not take effect until the Effective Time;
(v) (A) as soon as reasonably available, furnish Parent; , Merger Sub and the Debt Financing Sources, from time to time at the request thereof, with all historical financial statements, financial data, audit reports and other information regarding the Company (Hto the extent available) assist with and Compucom Systems and its Subsidiaries and such other financial and other information regarding the preparation of customary definitive financing documentation Company (to the extent available) and Compucom Systems and its Subsidiaries as may be reasonably requested by Parent, including pledge and security documents, guarantees, instruments, copies of any existing surveys, UCC financing statements, filings, security agreements, control agreements, title insurance and other matters ancillary toMerger Sub, or the Debt Financing Sources to the extent that such information is required in connection withwith the Debt Financing and (B) as promptly as practicable, inform Parent if the chief executive officer, chief financial officer, treasurer or controller of the Company or any member of the Company’s board of directors shall have knowledge of any facts as a result of which a restatement of any financial statements of Compucom Systems to comply with GAAP is probable or under consideration;
(vi) upon reasonable request of Parent, assist Parent to obtain customary and reasonable consents, landlord waivers and estoppels, non-disturbance agreements, environmental assessments, surveys and title insurance commitments;
(vii) at the request of Parent, (A) deliver notices of prepayment (which may be delivered at Parent’s request (in consultation with the Company) in advance of the Closing Date) within the time periods reasonably requested by Parent (in consultation with the Company) and take any actions at or prior to the Effective Time reasonably requested by Parent to facilitate the prepayment of all outstanding amounts under the Company Credit Agreement, the Company Receivables Financing Agreement, the Company Notes, and Debt Refinancing (and delivering stock certificates for certificated securities and (with transfer powers executed in blank) any other Indebtedness of the Company and its domestic the Company Subsidiaries to and, for the extent required on avoidance of doubt, any other obligations of the Closing Date by Company and the terms of any Company Subsidiaries owing under floorplan, payables, or other inventory financing arrangements) arrangements (it being understood and agreed that all solvency or similar certificates any prepayment is (and shall be) contingent upon the occurrence of the Closing and no actions shall be executed and delivered by officers required which would obligate the Company or the Company Subsidiaries to complete such prepayment prior to the occurrence of Parentthe Closing); (IB) cause officers arrange for delivery of the Company Credit Agreement Payoff Letter, the Company Receivables Financing Agreement Payoff Letter, the Company Notes Discharge Statement, the Company Notes Redemption and Discharge Documentation, and other customary payoff letters, lien terminations and releases, and instruments and acknowledgements of discharge in respect of any Indebtedness of the Company and the Company Subsidiaries and, for the avoidance of doubt, in respect of any other obligations of the Company and its Subsidiaries owing under floorplan, payables, or other inventory financing arrangements, to participate in be delivered to Parent; (C) take all other reasonable actions to facilitate (x) the negotiation payoff and termination of the Definitive Debt Financing Agreements Company Credit Agreement and the Debt Refinancing Company Receivables Financing Agreement, (y) the Company Notes Discharge, and (Jz) to the extent requested payoff, discharge and termination in writing full at least ten Business Days prior to the Closing, deliver at least three Business Days prior to the Closing of all documentation amounts outstanding under any other Indebtedness of the Company and the Company Subsidiaries and, for the avoidance of doubt, any other information with respect to obligations of the Company and its Subsidiairies owing under floorplan, payables, or other inventory financing arrangements; and (D) unwind or novate or assist Parent in connection with the unwinding or novation of any outstanding interest rate or other swaps or xxxxxx at the Effective Time designated by Parent (notice of which may be delivered at Parent’s request in advance of the Closing Date so long as permitted by the underlying swap or hedge documentation to be contingent upon the occurrence of the Closing and no actions shall be required which would obligate the Company or the Company Subsidiaries that are to complete such unwind or novation prior to the occurrence of the Closing Date);
(viii) if requested thereby, provide customary authorization letters to the Debt Financing Sources authorizing the distribution of bank information memoranda, lender presentations and similar documents required by regulatory authorities under applicable “know-your-customer” rules and regulations, including in connection with the USA PATRIOT Act.Debt Financing (the
Appears in 1 contract
Samples: Merger Agreement (Office Depot Inc)
Company Financing Cooperation. The (a) Prior to the Closing, the Company shallshall use its reasonable best efforts, and shall cause its Subsidiaries to, and shall use commercially reasonable efforts to cause its and Representatives to use their Representatives toreasonable best efforts, use commercially reasonable efforts to, at Parent’s expense, to provide such customary cooperation reasonably requested by Parent in connection with the Financing arrangement and Debt Refinancing (including, without limitation, assumptions, guarantees, amendments, supplements, modifications, refinancings, replacements, repayments, terminations or prepayments of existing financing arrangements) as Parent may reasonably determine necessary or advisable in connection with the completion of the Financing and Debt Refinancing. Such cooperation shall include using commercially reasonable efforts to (A) participate in a reasonable number of meetings, calls, rating agency and other presentations, drafting sessions, roadshows and due diligence sessions in connection with the Financing and Debt Refinancing, (B) assist Parent with Parent’s efforts to obtain ratings in respect of Parent and public ratings in respect of any debt issued or borrowed as part of any financing arrangements, or assumed or intended to remain outstanding following the consummation of the Mergers, from Fitch Ratings, Inc., Standard & Poor’s Financial Services LLC and Xxxxx’x Investor Services, Inc., (C) provide reasonable and timely assistance with the preparation by Parent of materials for presentations, offering memoranda, prospectuses, bank information memoranda and similar documents required in connection with such financing arrangements, and materials for rating agency presentations for any financing arrangements, (D) (1) furnish Parent the historical financial information of the Company specified in paragraph 7 in Exhibit C implementation of the Debt Commitment Letter as in effect on the date hereof (the “Required Information”) and (2) furnish Parent and its potential financing sources as promptly as reasonably practicable such historical information as may be reasonably necessary for the Required Information to remain Compliant and such other pertinent historical financial and other customary information (including assistance in Parent’s preparing projectionsFinancing, financial statements, forecasts and other forward-looking information) to the extent reasonably requested by Parent in connection writing, which shall consist of using reasonable best efforts to do the following:
(i) subject to the Confidentiality Agreement, as promptly as reasonably practicable (A) furnish Parent with the preparation by Parent Required Financial Information, and (B) in the event the Debt Financing includes an offering of customary debt securities, all other financial information and data of the Company and its subsidiaries, including monthly management accounts, as available, required to be used for support the Financing; (E) cause its independent registered public accounting firm (1) accountants of the Company to cooperate with Parent in connection with any financing arrangements, including, to the extent applicable, by providing provide customary “comfort letterscomfort” (including customary “negative assurances”assurance” comfort) in connection with such Debt Financing and (2C) inform Pxxxxx if the chief executive officer, chief financial officer, treasurer, controller or comparable officer of the Company shall have knowledge of any facts as a result of which a restatement of any financial statements (or portion thereof) included in the Required Financial Information is reasonably probable or required in order for such financial statements (or portion thereof) to provide comply with GAAP;
(ii) cause members of senior management of the Company to participate in a reasonable number of customary assistance with the meetings, presentations, road shows, due diligence activities sessions, drafting sessions and sessions with rating agencies, at reasonable and mutually agreed times and with reasonable advance notice, and in each case which shall be telephonic or held by videoconference unless otherwise agreed to by the Company;
(iii) in the event the Debt Financing includes an offering of debt securities, assist Parent and the financing sources Debt Financing Entities in their preparation of the Offering Documents and review and comment on Parent’s draft of a business description and a “Management’s Discussion and Analysis” of the preparation by Parent financial statements to be included in such Offering Documents;
(iv) in the event the Debt Financing includes an offering of debt securities, request and facilitate its independent auditors to (A) provide, consistent with customary practice, customary accountant’s comfort letters (including “negative assurance” comfort and change period comfort), together with drafts of such comfort letters that such independent auditors are prepared to deliver upon the “pricing” of any customary pro forma financial statements, and customary consents to the inclusion of audit reports in any relevant marketing materials, registration statements and related government filings; (F) attempt to ensure that any financing arrangements benefit from the existing lending relationships of the Company and its Subsidiaries; (G) obtain such consents, approvals and authorizations from third parties required debt securities being issued in connection with the Financing Debt Financing, and Debt Refinancing which may be reasonably requested by Parent; (H) assist consents from the Company’s independent auditors with the preparation of customary definitive financing documentation as may be reasonably requested by Parent, including pledge and security documents, guarantees, instruments, copies of any existing surveys, UCC financing statements, filings, security agreements, control agreements, title insurance and other matters ancillary to, or required in connection with, the Financing and Debt Refinancing (and delivering stock certificates for certificated securities and (with transfer powers executed in blank) of respect to financial information regarding the Company and its domestic Subsidiaries to the extent required on the Closing Date by the terms of any financing arrangements) audit reports issued thereon (it being understood that any such comfort will be in relation to GAAP and agreed that all solvency or similar certificates in accordance with GAAS) and (B) attend a reasonable and customary number of accounting due diligence sessions and drafting sessions, which sessions shall be executed telephonic or held by videoconference and delivered by officers held at reasonable and mutually agreed times and with reasonable advance notice;
(v) assist Parent in its preparation of, and facilitate execution and delivery as of Parent); but not prior to the Closing (Iand subject to clause (b) cause officers below) of the Definitive Agreements and the schedules and exhibits thereto, it being understood that the effectiveness of such documents shall be conditioned upon the occurrence of the Closing;
(vi) use reasonable best efforts to deliver any original stock certificates and appropriate instruments of transfer of wholly owned Subsidiaries of the Company that are reasonably available to the Company and its Subsidiaries to participate in constitute collateral for the negotiation Debt Financing; it being understood that the effectiveness of such pledges shall be conditioned upon the occurrence of the Definitive Debt Financing Agreements Closing;
(vii) furnish Parent and the Debt Refinancing and Financing Entities at least three Business Days prior to the Closing Date (J) solely to the extent requested by Parent in writing at least ten Business Days prior to the Closing Date) with all documentation and other information related to the Company reasonably requested by the Debt Financing Entities due to requirements of Governmental Entities with respect to the Debt Financing under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, as amended and the requirements of 31 C.F.R. § 1010.230;
(viii) solely with respect to financial information and data derived from the Company’s historical books and records and already prepared or collected by the Company in the ordinary course of business, provide reasonable and customary assistance to Parent with the preparation of pro forma financial information and pro forma financial statements to the extent reasonably requested by Parent or the Debt Financing Entities and customary to be included in any marketing materials or Offering Documents or of the type required by the Debt Commitment Letter (provided that the Company shall not be responsible for the preparation of any pro forma financial statements or pro forma adjustments thereto and, for the avoidance of doubt, shall not be obligated to provide any Excluded Information and provided further that the Company’s assistance to Parent with the preparation of pro-forma financial information and pro-forma financial statements shall not require the Company or any member of management to review approve or validate any financial information of Parent);
(ix) subject to clause (b) below, facilitate the taking, no earlier than the Closing, of customary corporate approvals, reasonably requested by Parent to permit the consummation of the Debt Financing (provided, that no such action shall be required of the Company Board);
(x) to the extent the satisfaction of such condition requires the cooperation of, or is within the control of, the Company and not the Parent, provide reasonable cooperation in satisfying the conditions precedent set forth in the Debt Commitment Letter as in effect as of the date hereof or any definitive agreement relating to the Debt Financing including any purchase or underwriting agreement, in each case as reasonably requested by the Debt Financing Entities (provided that any such conditions precedent related to a Definitive Agreement are not more onerous or impose any additional requirements than the conditions precedent set forth in the Debt Commitment Letter); and
(xi) provide reasonable and customary updates to materials provided in the due diligence process and reasonable access, at mutually agreed times and places and on a reasonable and customary number of occasions to the Company’s books and records and relevant personnel to the extent necessary to facilitate issuance of 10b-5 opinions by counsel to Parent and Merger Sub in connection with the issuance of high yield bonds customary for debt financing of the type consistent with the Debt Financing, at mutually agreed times and places.
(b) The foregoing notwithstanding, neither the Company nor any of its Representatives shall be required to take or permit the taking of any action pursuant to this Section 5.15 that could: (i) require the Company or any persons who are officers or directors of such entities to pass resolutions or consents to approve or authorize the execution of the Debt Financing or enter into, execute or deliver at least three Business Days any certificate, document, opinion, instrument or agreement or agree to any change or modification of any existing certificate, document, opinion, instrument or agreement (except any authorization letters delivered pursuant to Section 5.16(a)(ii), customary management representation letters required by the Company’s auditors in connection with the delivery of “comfort letters” as set forth in Section 5.16(a)(iv)), in each case, unless (A) such person will continue as an officer, director or equivalent of such entities following the Closing and (B) the effectiveness of such resolutions, consents, certificates, documents, instruments, agreements, changes or modifications is contingent upon the occurrence of the Closing, (ii) cause any representation or warranty in this Agreement to be breached by the Company, (iii) require the Company to pay any commitment or other similar fee or incur any other expense, liability or obligation in connection with the Debt Financing prior to the Closing or otherwise incur any obligation under any agreement, certificate, document or instrument (except to the extent the effectiveness of any such fee, expense, liability or obligation is subject to and conditioned upon the occurrence of the Closing), (iv) reasonably be expected to cause any director, officer, employee or stockholder of the Company to incur any personal liability, (v) reasonably be expected to conflict with the organizational documents of the Company or any Laws, (vi) reasonably be expected to result in a material violation or breach of, or a default (with or without notice, lapse of time, or both) under, any Company Material Contract, (vii) require the Company or any of its respective Representatives to provide access to or disclose information that the Company determines would result in a loss of attorney-client privilege, work-product doctrine or other similar legal privilege or protection of the Company, provided, that, unless prohibited by applicable Law, the Company shall (x) notify Parent that the provision of such access or the disclosure of such information is being so withheld and (y) use commercially reasonable efforts to provide such access or make such disclosure in a manner that does not result in a loss of attorney-client privilege, work-product doctrine or other similar legal privilege or protection of the Company, as applicable, (viii) require the Company or any of its Representatives to prepare or deliver any Excluded Information, (ix) require the Company to qualify for, or apply for any listing of debt securities or obtain prospectus clearance in any European Economic Area jurisdiction related to the Debt Financing prior to the Closing or (x) unreasonably interfere with the ongoing operations of the Company. Nothing contained in this Section 5.15 or otherwise in this Agreement shall require the Company, prior to the Closing, to be an issuer or other obligor with respect to the Debt Financing. Parent shall, promptly upon written request by the Company, reimburse the Company for all documentation reasonable and documented out-of-pocket costs incurred by it or its Representatives in connection with such cooperation and shall reimburse, indemnify and hold harmless the Company and its respective Representatives from and against any and all liabilities and losses suffered or incurred by them in connection with the arrangement of the Debt Financing or the transactions contemplated by this Section 5.15, any action taken by them at the request of Parent or its Representatives pursuant to this Section 5.15 and any information used in connection therewith (other than liabilities or losses resulting solely from information provided by the Company), in each case, other than to the extent any of the foregoing was suffered or incurred as a result of the bad faith, gross negligence or willful misconduct of, or material breach of this Agreement by, the Company or any of its Representatives, as determined in a final and non-appealable judgment by a court of competent jurisdiction.
(c) The Company shall use reasonable best efforts to periodically update any Required Financial Information provided to Parent as may be necessary so that such Required Financial Information is (i) Compliant and (ii) meets the applicable requirements set forth in the definition of “Required Financial Information”. Parent agrees to provide the Company drafts of all Offering Documents and all marketing materials for the Debt Financing with a reasonable time to review such documents and materials, and subject to Parent’s compliance with such obligation, the Company agrees to use reasonable best efforts to review all such Offering Documents and marketing materials and identify for Parent any information contained therein that it reasonably believes constitutes material non-public information with respect to the Company or their respective securities. If the Company identifies any such information (“Identified MNPI”), and such information is customarily included in offering documents or marketing materials for debt financing of the type consistent with the Debt Financing, is reasonably requested by Parent to be included in the Offering Documents or marketing materials for the Debt Financing and does not include information as to which the Company reasonably objects (any such Identified MNPI, “Acceptable MNPI”), then the Company shall file a Current Report on Form 8-K containing such material non-public information. Parent shall remove all such Identified MNPI that is not Acceptable MNPI from such Offering Documents and marketing materials. Parent further agrees to give due consideration to the reasonable additions, deletions or changes suggested to such Offering Documents by the Company to the extent the Company’s review has identified any inaccuracies or misstatements regarding the Company.
(d) All non-public or otherwise confidential information regarding the Company or any of its Subsidiaries affiliates obtained by Parent or its Representatives pursuant to this Section 5.15 shall be kept confidential in accordance with the Confidentiality Agreement. The Company hereby consents to the use of its logos in connection with the Debt Financing; provided that such trademarks and logos are required by regulatory authorities used solely in a manner that is not intended to or reasonably likely to harm or disparage the Company or the reputation or goodwill of the Company.
(e) Notwithstanding anything to the contrary in this Agreement, the condition set forth in Section 5.16, as it applies to the Company’s obligations under applicable “know-your-customer” rules this Section 5.16, shall be deemed satisfied unless (i) the Company has failed to satisfy its obligations in any material respect under this Section 5.16, (ii) Parent has notified the Company of such failure in writing a reasonably sufficient amount of time prior to the Closing to afford the Company with a reasonable opportunity to cure such failure and regulations, including (iii) such failure has been a proximate cause of Parent and Mxxxxx Sub’s failure to receive the USA PATRIOT Actproceeds of the Debt Financing.
Appears in 1 contract
Samples: Merger Agreement (Iteris, Inc.)
Company Financing Cooperation. (a) The Company shallshall use its reasonable best efforts to, and shall cause its Subsidiaries to, and shall use commercially reasonable efforts to cause its and their respective Representatives to, to use commercially their reasonable best efforts to, at Parent’s expense, provide such all cooperation in connection with the arrangement of the Debt Financing as may be reasonably requested by Parent that is reasonably necessary and customary for financings of the type contemplated in connection with the arrangement of the Debt Financing contemplated by the Debt Commitment Letter, including:
(i) providing customary information to Parent in connection with the Financing and Debt Refinancing (including, without limitation, assumptions, guarantees, amendments, supplements, modifications, refinancings, replacements, repayments, terminations or prepayments preparation of existing financing arrangements) as Parent may reasonably determine necessary or advisable in connection with the completion of the Financing and Debt Refinancing. Such cooperation shall include using commercially reasonable efforts to (A) participate in a reasonable number of meetings, calls, rating agency and other presentations, drafting sessions, roadshows and due diligence sessions in connection with the Financing and Debt Refinancing, (B) assist Parent with Parent’s efforts to obtain ratings in respect of Parent and public ratings in respect of any debt issued or borrowed as part of any financing arrangements, or assumed or intended to remain outstanding following customary pro forma financial statements reflecting the consummation of the Mergers, from Fitch Ratings, Inc., Standard & Poor’s Financial Services LLC and Xxxxx’x Investor Services, Inc., (C) provide reasonable and timely assistance with the preparation Transactions by Parent to the extent reasonably requested by Pxxxxx and available to the Company;
(ii) causing the taking of materials for presentations, offering memoranda, prospectuses, bank information memoranda and similar documents required in connection with such financing arrangements, and materials for rating agency presentations for any financing arrangements, (D) (1) furnish corporate actions reasonably requested by Parent to permit the historical financial information of the Company specified in paragraph 7 in Exhibit C consummation of the Debt Financing on the Closing Date;
(iii) furnishing, at least three (3) Business Days prior to the Closing, such documentation and information as is requested in writing by the Parent at least ten (10) Business Days prior to the Closing to the extent required under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and 31 C.F.R. §1010.230, in order to satisfy the conditions set forth in the Exhibit C to the Debt Commitment Letter Letters as in effect on the date hereof hereof;
(iv) executing and delivering any credit agreements, pledge and security documents, other definitive financing documents or other requested certificates or documents (including a solvency certificate in the “Required Information”form required by the Debt Commitment Letter; provided that the Company shall assume and be entitled to rely on the accuracy of Parent’s representations in Section 5.08 and shall only be required to use reasonable best efforts to deliver such certificate to the extent such representations in Section 5.08 are true and correct in all material respects) and (2y) furnish Parent facilitating the obtaining of guarantees and its potential financing sources as promptly as reasonably practicable such historical information as may be reasonably necessary for the Required Information to remain Compliant and such other pertinent historical financial pledging of collateral and other customary information (including assistance in Parent’s preparing projections, financial statements, forecasts and other forward-looking information) matters ancillary to the extent reasonably requested by Parent in connection with the preparation by Parent of customary information to be used for the Debt Financing; (E) cause its independent registered public accounting firm (1) to cooperate with Parent in connection with any financing arrangements, including, to the extent applicable, by providing customary “comfort letters” (including customary “negative assurances”) and (2) to provide customary assistance with the due diligence activities of Parent and the financing sources and the preparation by Parent of any customary pro forma financial statements, and customary consents to the inclusion of audit reports in any relevant marketing materials, registration statements and related government filings; (F) attempt to ensure that any financing arrangements benefit from the existing lending relationships of the Company and its Subsidiaries; (G) obtain such consents, approvals and authorizations from third parties required in connection with the Financing and Debt Refinancing which may be reasonably requested by Parent; (H) assist with the preparation of customary definitive financing documentation as may be reasonably requested by Parent, including pledge in each case, provided that any obligations contained in such documents shall be effective no earlier than as of the Closing; and
(v) furnishing Parent and security the Debt Financing Sources with the Required Information, it being understood that the Company shall not be obligated to furnish any Excluded Information in connection with the foregoing.
(b) Notwithstanding the foregoing, nothing in this Section 8.10 shall require the Company or any of its Subsidiaries to:
(i) take any action in respect of the Debt Financing to the extent that such action would cause any condition to Closing set forth in Article 9 to fail to be satisfied by the End Date or otherwise result in a breach of this Agreement by the Company;
(ii) take any action in respect of the Debt Financing that would conflict with or violate the Company’s or any if its Subsidiary’s organizational documents, guaranteesto the extent such organizational documents were made available to Parent prior to the date hereof, instrumentsor any Applicable Law, copies or result in the material contravention of, or material violation or breach of, or material default under, any material Contract to which the Company or any of its subsidiaries is a party with any existing surveysPerson that is not an Affiliate to the extent such Contracts were made available to Parent prior to the date hereof;
(iii) take any action to the extent such action would (A) materially interfere with the business or operations of the Company or its Subsidiaries or (B) cause significant competitive harm to the Company or its Subsidiaries if the Transactions are not consummated;
(iv) execute and deliver any letter, UCC financing statementsagreement, filingsdocument or certificate in connection with the Debt Financing or take any corporation action that is not contingent on, security agreements, control agreements, title insurance and other matters ancillary or that would be effective prior to, the occurrence of the Closing;
(v) pay any commitment fee or required other fee or payment to obtain consent or incur any liability with respect to or cause or permit any Lien to be placed on any of their respective assets in connection with, with the Debt Financing and Debt Refinancing prior to the Closing Date;
(and delivering stock certificates for certificated securities and (with transfer powers executed in blankvi) of provide access to or disclose information where the Company determines that such access or disclosure would reasonably be expected to jeopardize the attorney-client privilege so long as the Company and its domestic Subsidiaries shall have used reasonable efforts to disclose such information in a way that would not waive such privilege;
(vii) subject any of the Company’s or its Subsidiaries, respective directors, managers, officers or employees to any actual or potential personal liability;
(viii) cause the directors of the Company (other than directors who will continue to be directors on and after the Closing Date) to adopt resolutions approving the agreements, documents and instruments pursuant to which the Financing is obtained;
(ix) waive or amend any terms of this Agreement or any other material Contract to which the Company or its Subsidiaries is party with any Person that is not an Affiliate to the extent required on such Contracts were made available to Parent prior to the Closing Date by date hereof; or
(x) take any action that would subject it to actual or potential liability, to bear any cost or expense or to make any other payment or agree to provide any indemnity in connection with the terms of Commitment Letters, the definitive documents related to the Financing, the Financing or any financing arrangements) (it being understood information utilized in connection therewith except such liabilities, costs, expenses, payments and agreed that all solvency or similar certificates shall be executed and delivered by officers of Parent); indemnity expenses which (I) cause officers are subject to reimbursement pursuant to Section 8.10(c) and/or (II) which are contingent on the occurrence of the Closing Date.
(c) Parent shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented third-party out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiaries in connection with the cooperation of the Company and its Subsidiaries to participate contemplated by this Section 8.10. Parent shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all losses, damages, claims or costs and reasonable and documented out-of-pocket expenses incurred in connection therewith actually suffered or incurred by any of them in connection the negotiation cooperation of the Definitive Debt Financing Agreements and the Debt Refinancing and (J) to the extent requested in writing at least ten Business Days prior to the Closing, deliver at least three Business Days prior to the Closing all documentation and other information with respect to the Company and its Subsidiaries contemplated by this Section 8.10, except to the extent such losses, damages, claims, costs or expenses result from the gross negligence, bad faith or willful misconduct of the Company, any of its Subsidiaries or their respective Representatives or Affiliates, and the foregoing obligations shall survive termination of this Agreement.
(d) The Company hereby consents, on behalf of itself and its Subsidiaries, to the use of the Company’s and its Subsidiaries’ logos in connection with the Debt Financing; provided that such logos are required used in a manner that is not intended to or reasonably likely to harm or disparage the Company’s or its Subsidiaries’ reputation or goodwill.
(e) All material non-public information provided by regulatory authorities under applicable “know-your-customer” rules the Company or any of its Subsidiaries or any of their Representatives pursuant to this Section 8.10 shall be kept confidential in accordance with the Confidentiality Agreement, except that, notwithstanding Section 8.06, Parent and regulationsMerger Sub shall be permitted to disclose such information to the Debt Financing Sources, other potential sources of capital, rating agencies and prospective lenders during syndication of the Debt Financing or any permitted replacement, amended, modified or alternative financing subject to the potential sources of capital, ratings agencies and prospective lenders and investors entering into customary confidentiality undertakings with respect to such information (including the USA PATRIOT Actthrough a notice and undertaking in a form customarily used in confidential information memoranda for senior credit facilities).
Appears in 1 contract
Company Financing Cooperation. (a) The Company shallshall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange the Financing and transactions related to the Financing, including using reasonable best efforts to (i) negotiate and enter into definitive agreements with respect thereto, (ii) satisfy (or obtain a waiver of) on a timely basis all conditions to obtaining the Financing, and (iii) consummate the Financing at or prior to the Closing Date.
(b) The Company shall cause use its Subsidiaries reasonable best efforts to, and shall use commercially reasonable efforts to cause its and their Representatives to, use commercially reasonable efforts to, at Parent’s expenseon a timely basis, provide such all customary cooperation that is reasonably requested by Parent to assist in connection with obtaining the Financing and Debt Refinancing (includingFinancing. The Company shall use its reasonable best efforts to obtain an amendment to the credit facilities set forth on Section 7.15(b) of the Company Disclosure Schedule so that, without limitationafter giving effect to the Merger, assumptionsthere exists no default or event of default with respect to such credit facilities; provided, guarantees, amendments, supplements, modifications, refinancings, replacements, repayments, terminations or prepayments of existing financing arrangements) as Parent may reasonably determine necessary or advisable that any such amendment would be conducted in connection coordination with the completion syndication of the Financing and Debt RefinancingFinancing. Such Without limiting the generality of the foregoing, such cooperation shall in any event include using commercially reasonable best efforts to with respect to: (Ai) participate participating in a reasonable number of meetings, calls, rating agency meetings and other presentations, drafting sessions, roadshows and providing and participating in reasonable and customary due diligence sessions diligence, in connection each case at mutually agreeable times and places and with reasonable advance notice, (ii) furnishing the Financing and Debt Refinancing, (B) assist Parent with Parent’s efforts to obtain ratings in respect of Parent and public ratings in respect of any debt issued or borrowed as part of any financing arrangements, or assumed or intended to remain outstanding following the consummation of the Mergers, from Fitch Ratings, Inc., Standard & Poor’s Financial Services LLC and Xxxxx’x Investor Services, Inc., (C) provide reasonable and timely assistance with the preparation by Parent of materials for presentations, offering memoranda, prospectuses, bank information memoranda and similar documents required in connection Sources with such financing arrangements, financial and materials for rating agency presentations for any financing arrangements, (D) (1) furnish Parent the historical financial information of the Company specified in paragraph 7 in Exhibit C of the Debt Commitment Letter as in effect on the date hereof (the “Required Information”) and (2) furnish Parent and its potential financing sources as promptly as reasonably practicable such historical other pertinent information as may be reasonably necessary for the Required Information requested to remain Compliant and such other pertinent historical financial and other customary information (including assistance in Parent’s preparing projections, financial statements, forecasts and other forward-looking information) to the extent reasonably requested by Parent in connection with the preparation by Parent of customary information to be used for consummate the Financing; (E) cause its independent registered public accounting firm (1) to cooperate with Parent in connection with any financing arrangements, including, to the extent applicable, by providing customary “comfort letters” (including customary “negative assurances”) and (2) to provide customary assistance with the due diligence activities of Parent and the financing sources and the preparation by Parent of any customary pro forma financial statements, and customary consents to the inclusion of audit reports in any relevant marketing materials, registration statements and related government filings; (F) attempt to ensure that any financing arrangements benefit from the existing lending relationships of information regarding the Company and its Subsidiaries; (G) obtain such consents, approvals subsidiaries reasonably necessary to assist Parent and authorizations from third parties Ultimate Parent in preparing financial statements and financial data of the type required in connection with by Regulation S-X and Regulation S-K under the Financing Securities Act and Debt Refinancing which may be reasonably requested by Parent; (H) assist with applicable to a registration statement under the preparation of customary definitive financing documentation as may be reasonably requested by ParentSecurities Act on Form F-3 and/or Form F-10, including pledge delivery of (A) audited consolidated balance sheets and security documentsrelated audited statements of income, guarantees, instruments, copies of any existing surveys, UCC financing statements, filings, security agreements, control agreements, title insurance stockholders’ equity and other matters ancillary to, or required in connection with, the Financing and Debt Refinancing (and delivering stock certificates for certificated securities and (with transfer powers executed in blank) cash flows of the Company and its domestic Subsidiaries for each of the three fiscal years most recently ended at least sixty (60) days prior to the extent required on the Closing Date by the terms of any financing arrangements) (it being understood and agreed that all solvency or similar certificates no such audited annual financial statements shall be executed required under this clause (A) in respect of any fiscal year ended less than sixty (60) days prior to the Closing Date) and delivered by officers (B) unaudited consolidated balance sheets and related unaudited statements of Parentincome, stockholders’ equity and cash flows of the Company for each subsequent fiscal quarter ended at least forty (40) days prior to the Closing Date (it being understood and agreed that no such unaudited quarterly financial statements shall be required under this clause (B) in respect of any fiscal quarter ended less than forty (40) days prior to the Closing Date) (the financial statements described in sub-clauses (A) and (B) of this clause (ii); , the “Required Financial Statements”), (Iiii) cause officers of furnishing information regarding the Company and its Subsidiaries subsidiaries reasonably necessary to participate assist Parent and Ultimate Parent in the negotiation preparation of pro forma financial information and financial statements to the extent required by applicable Law or reasonably required by the Financing Sources to be included in any bank information memoranda, confidential information memoranda or other similar marketing documents, (iv) assisting the Financing Sources in the preparation of (I) offering or syndication documents for any portion of the Definitive Debt Financing Agreements and the Debt Refinancing and (JII) materials for rating agency presentations and providing customary authorization letters related thereto, in each case described in sub-clauses (I) and (II) to the extent, and solely to the extent, such documents or materials contain information concerning the Company and its subsidiaries, the Merger or the transactions contemplated hereby, (v) using reasonable best efforts to cause the Company’s independent registered public accounting firm to cooperate with Parent, Ultimate Parent and any Financing Sources, including by participating in accounting due diligence sessions upon reasonable notice, and to obtain consents of, and facilitate the delivery of, customary accountants’ comfort letters (including “negative assurance” comfort) (including by providing customary management letters and requesting consent for use of (and using reasonable best efforts to obtain such consent) their reports in any materials relating to the Financing and in connection with any filings required to be made by Ultimate Parent or Parent relating to the Financing) from such accounting firm, (vi) reasonably cooperating with the marketing efforts for any portion of the Financing and (vii) furnishing Ultimate Parent, Parent and any Financing Sources at least five (5) days prior to the Closing Date with documentation and other information reasonably necessary in order for the Financing Sources to comply with applicable Law or as required by any Governmental Entity with respect to any Financing under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, in each case, to the extent that such documentation and information has been reasonably requested in writing at least ten Business Days prior to the Closing, deliver at least three Business Days (10) days prior to the Closing Date; provided, however, that nothing in this Section 7.15 shall require such cooperation to the extent it would (A) unreasonably disrupt or interfere with the business or operations of the Company or any of its subsidiaries or the conduct thereof, (B) require the Company or any of its subsidiaries to pay any fees, incur or reimburse any costs or expenses, or make any payment in connection with the Financing, prior to the Effective Time (except to the extent Parent promptly reimburses (in the case of ordinary course out-of-pocket costs and expenses) or provides the funding (in all documentation and other information cases) to the Company or such subsidiary therefor), or incur any liability in connection with the Financing that is effective prior to the occurrence of the Effective Time, (C) other than with respect to the second sentence of Section 7.15(b), require the Company or any of its subsidiaries to enter into any instrument, document, certificate, or agreement (other than the authorization letters and management letters referred to above) or agree to any change or modification to any instrument or agreement at or prior to the Effective Time or that would be effective if the Effective Time does not occur, (D) other than with respect to the second sentence of Section 7.15(b), require the Company to issue or deliver, or cause its legal counsel to issue or deliver, any opinions at or prior to the Effective Time or that would be effective if the Effective Time does not occur, (E) require Persons who are directors of the Company or any of its subsidiaries prior to the Effective Time, in their capacity as such, to pass resolutions or consents to approve or authorize the execution of the Financing, (F) provide access to or disclose information that the Company or any of its subsidiaries reasonably determines would jeopardize any attorney-client privilege of the Company or any of its subsidiaries; provided, that the Company shall use its reasonable best efforts to minimize the effects of such restriction or to provide a reasonable alternative to such access, (G) require the Company to prepare any pro forma financial statements or pro forma adjustments giving effect to the Merger or the other transactions contemplated herein, but rather, any information provided by the Company shall relate solely to the financial information and data derived from the Company’s and its subsidiaries’ historical books and records, or (H) require the Company to prepare separate financial statements for any subsidiary of the Company, prepare any “guarantor/non-guarantor” footnote to any financial statements of the Company and its Subsidiaries subsidiaries or change any fiscal period. Without limiting the foregoing proviso, Parent and Ultimate Parent agree to reimburse the Company and its subsidiaries for all of their reasonable and documented out-of-pocket costs, fees and expenses (including reasonable fees and disbursements of counsel) in connection with the Financing promptly following the issuance or incurrence thereof (but excluding any costs, fees and expenses of preparing the Required Financial Statements, which shall not be reimbursed). Parent shall indemnify and hold harmless the Company from and against any and all liabilities, obligations, losses, damages, claims, costs, expenses, awards, judgments and penalties of any type actually suffered or incurred by any of them in connection with any action taken, or cooperation provided, by the Company or its subsidiaries or any of their respective Representatives at the request of Parent pursuant to this Section 7.15; in each case, except to the extent that any such obligations, losses, damages, claims, costs, expenses, awards, judgments and penalties, fees, costs or other liabilities are suffered or incurred as a result of the Company’s gross negligence, bad faith, willful misconduct, material breach of this Agreement or arising out of a material misstatement in or failure to state a material fact pertinent to the information provided by or on behalf of the Company pursuant to this Section 7.15(b), as applicable, as determined in a final, non-appealable judgment by court of competent jurisdiction.
(c) The Company hereby consents to the use of its and its subsidiaries’ logos by Ultimate Parent, Parent, their respective licensees and any Financing Source in connection with the Financing, provided, that such logos are used solely in a customary manner that is not intended to or reasonably likely to harm or disparage the Company or any of its subsidiaries or the reputation or goodwill of the Company or any of its subsidiaries and on such other customary terms and conditions as the Company shall reasonably impose. Parent, Ultimate Parent and Merger Sub acknowledge and agree that the obtaining of the Financing or any alternative financing is not a condition to the Closing and reaffirm their obligation to consummate the transactions contemplated by this Agreement irrespective and independently of the availability of the Financing or any alternative financing, subject to fulfillment or waiver of the conditions set forth in Article VIII. Notwithstanding anything to the contrary provided herein or in the Confidentiality Agreement, Parent and Ultimate Parent shall be permitted, in connection with the syndication of the Financing, to share all information subject to such agreement with any Financing Sources and their Representatives, subject to customary confidentiality undertakings by such Financing Sources with respect thereto.
(d) In the event Ultimate Parent and Parent desire to undertake a Third Party Investment to be effective on or prior to Closing, binding commitments for such Third Party Investment must be in place no later than ninety (90) days after the date hereof (which date may be extended for thirty (30) days with the consent of the Company (which may not be unreasonably withheld, conditioned or delayed), which consent shall not be required where such Third Party Investor would not reasonably be expected to delay any Required Regulatory Approval) and prior to such date Ultimate Parent shall provide written notice to the Company which such notice shall contain the identity of each Third Party Investor, the amount that such Third Party Investor will invest in the Third Party Investment and all of the other material terms and conditions of such Third Party Investment. Third Party Investors shall not be permitted to have direct or indirect beneficial ownership of the Company (on, prior to or immediately following the Closing) (i) that exceeds 19.9% in the aggregate or (ii) that would prevent Parent from meeting the requirements of Section 1504(a)(2) of the Code with respect to its ownership of the Surviving Corporation (taking into account any agreement relating to the rights of the Third Party Investors to nominate or appoint directors to the board of directors of the Surviving Corporation). No Third Party Investor will, at any time from the date hereof until the earlier of the Effective Time and the termination of this Agreement in accordance with Article IX, impair the incentives granted by regulatory authorities under applicable “know-your-customer” rules FERC to subsidiaries of the Company as a result of the Company’s independence from Market Participants. In connection with any Third Party Investment, Ultimate Parent and regulationsParent shall keep the Company reasonably informed with respect to the status of such Third Party Investment, shall consult with the Company and, upon the written request of the Company or its Representatives, regarding the terms of such Third Party Investment and shall consider in good faith any advice or comments provided by the Company or its Representatives with respect to such Third Party Investment. Notwithstanding the foregoing in this Section 7.15(d), Ultimate Parent, Parent and Merger Sub shall not undertake any Third Party Investment that would reasonably be expected to materially delay, materially impede or otherwise prevent the consummation of the transactions contemplated by this Agreement, including as a result of any Consents of any Governmental Entity necessary to consummate the USA PATRIOT Acttransactions contemplated by this Agreement. Ultimate Parent shall use reasonable efforts to cause such Third Party Investor to provide reasonable cooperation and assistance as necessary or advisable in connection with obtaining any Consents of any Governmental Entity to consummate the transactions contemplated by this Agreement (including any Third Party Investment).
(e) Notwithstanding anything to the contrary contained herein (including, without limitation, Section 9.2(f)), the Company (on behalf of itself and its Affiliates and each officer, director, employee, equityholder, member, manager, partner, advisor, attorney, agent and representative thereof) (i) hereby waives any claims or rights against any Financing Source relating to or arising out of this Agreement, the Financing, the Commitment Letters and the transactions contemplated hereby and thereby, whether at law or in equity and whether in tort, contract or otherwise, (ii) hereby agrees not to commence or support any suit, action or proceeding against any Financing Source in connection with this Agreement, the Financing, the Commitment Letters and the transactions contemplated hereby and thereby, whether at law or in equity and whether in tort, contract or otherwise and (iii) hereby acknowledges and agrees that no Financing Source shall have any liability for any claims or damages to the Company (or such other Persons) in connection with this Agreement, the Financing, the Commitment Letters and the transactions contemplated hereby or thereby.
Appears in 1 contract
Company Financing Cooperation. The (a) Prior to the Closing, the Company shallshall use its reasonable best efforts, and shall cause its Subsidiaries to, and shall use commercially reasonable efforts to cause its and Representatives to use their Representatives toreasonable best efforts, use commercially reasonable efforts to, at Parent’s expense, to provide such customary cooperation reasonably requested by Parent in connection with the Financing arrangement and Debt Refinancing (including, without limitation, assumptions, guarantees, amendments, supplements, modifications, refinancings, replacements, repayments, terminations or prepayments of existing financing arrangements) as Parent may reasonably determine necessary or advisable in connection with the completion of the Financing and Debt Refinancing. Such cooperation shall include using commercially reasonable efforts to (A) participate in a reasonable number of meetings, calls, rating agency and other presentations, drafting sessions, roadshows and due diligence sessions in connection with the Financing and Debt Refinancing, (B) assist Parent with Parent’s efforts to obtain ratings in respect of Parent and public ratings in respect of any debt issued or borrowed as part of any financing arrangements, or assumed or intended to remain outstanding following the consummation of the Mergers, from Fitch Ratings, Inc., Standard & Poor’s Financial Services LLC and Xxxxx’x Investor Services, Inc., (C) provide reasonable and timely assistance with the preparation by Parent of materials for presentations, offering memoranda, prospectuses, bank information memoranda and similar documents required in connection with such financing arrangements, and materials for rating agency presentations for any financing arrangements, (D) (1) furnish Parent the historical financial information of the Company specified in paragraph 7 in Exhibit C implementation of the Debt Commitment Letter as in effect on the date hereof (the “Required Information”) and (2) furnish Parent and its potential financing sources as promptly as reasonably practicable such historical information as may be reasonably necessary for the Required Information to remain Compliant and such other pertinent historical financial and other customary information (including assistance in Parent’s preparing projectionsFinancing, financial statements, forecasts and other forward-looking information) to the extent reasonably requested by Parent in connection writing, which shall consist of using reasonable best efforts to do the following:
(i) subject to the Confidentiality Agreement, as promptly as reasonably practicable (A) furnish Parent with the preparation by Parent Required Financial Information, and (B) in the event the Debt Financing includes an offering of customary debt securities, all other financial information and data of the Company and its subsidiaries, including monthly management accounts, as available, required to be used for support the Financing; (E) cause its independent registered public accounting firm (1) accountants of the Company to cooperate with Parent in connection with any financing arrangements, including, to the extent applicable, by providing provide customary “comfort letterscomfort” (including customary “negative assurances”assurance” comfort) in connection with such Debt Financing and (2C) inform Parent if the chief executive officer, chief financial officer, treasurer, controller or comparable officer of the Company shall have knowledge of any facts as a result of which a restatement of any financial statements (or portion thereof) included in the Required Financial Information is reasonably probable or required in order for such financial statements (or portion thereof) to provide comply with GAAP;
(ii) cause members of senior management of the Company to participate in a reasonable number of customary assistance with the meetings, presentations, road shows, due diligence activities sessions, drafting sessions and sessions with rating agencies, at reasonable and mutually agreed times and with reasonable advance notice, and in each case which shall be telephonic or held by videoconference unless otherwise agreed to by the Company;
(iii) in the event the Debt Financing includes an offering of debt securities, assist Parent and the financing sources Debt Financing Entities in their preparation of the Offering Documents and review and comment on Parent’s draft of a business description and a “Management’s Discussion and Analysis” of the preparation by Parent financial statements to be included in such Offering Documents;
(iv) in the event the Debt Financing includes an offering of debt securities, request and facilitate its independent auditors to (A) provide, consistent with customary practice, customary accountant’s comfort letters (including “negative assurance” comfort and change period comfort), together with drafts of such comfort letters that such independent auditors are prepared to deliver upon the “pricing” of any customary pro forma financial statements, and customary consents to the inclusion of audit reports in any relevant marketing materials, registration statements and related government filings; (F) attempt to ensure that any financing arrangements benefit from the existing lending relationships of the Company and its Subsidiaries; (G) obtain such consents, approvals and authorizations from third parties required debt securities being issued in connection with the Financing Debt Financing, and Debt Refinancing which may be reasonably requested by Parent; (H) assist consents from the Company’s independent auditors with the preparation of customary definitive financing documentation as may be reasonably requested by Parent, including pledge and security documents, guarantees, instruments, copies of any existing surveys, UCC financing statements, filings, security agreements, control agreements, title insurance and other matters ancillary to, or required in connection with, the Financing and Debt Refinancing (and delivering stock certificates for certificated securities and (with transfer powers executed in blank) of respect to financial information regarding the Company and its domestic Subsidiaries to the extent required on the Closing Date by the terms of any financing arrangements) audit reports issued thereon (it being understood that any such comfort will be in relation to GAAP and agreed that all solvency or similar certificates in accordance with GAAS) and (B) attend a reasonable and customary number of accounting due diligence sessions and drafting sessions, which sessions shall be executed telephonic or held by videoconference and delivered by officers held at reasonable and mutually agreed times and with reasonable advance notice;
(v) assist Parent in its preparation of, and facilitate execution and delivery as of Parent); but not prior to the Closing (Iand subject to clause (b) cause officers below) of the Definitive Agreements and the schedules and exhibits thereto, it being understood that the effectiveness of such documents shall be conditioned upon the occurrence of the Closing;
(vi) use reasonable best efforts to deliver any original stock certificates and appropriate instruments of transfer of wholly owned Subsidiaries of the Company that are reasonably available to the Company and its Subsidiaries to participate in constitute collateral for the negotiation Debt Financing; it being understood that the effectiveness of such pledges shall be conditioned upon the occurrence of the Definitive Debt Financing Agreements Closing;
(vii) furnish Parent and the Debt Refinancing and Financing Entities at least three Business Days prior to the Closing Date (J) solely to the extent requested by Parent in writing at least ten Business Days prior to the Closing Date) with all documentation and other information related to the Company reasonably requested by the Debt Financing Entities due to requirements of Governmental Entities with respect to the Debt Financing under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, as amended and the requirements of 31 C.F.R. § 1010.230;
(viii) solely with respect to financial information and data derived from the Company’s historical books and records and already prepared or collected by the Company in the ordinary course of business, provide reasonable and customary assistance to Parent with the preparation of pro forma financial information and pro forma financial statements to the extent reasonably requested by Parent or the Debt Financing Entities and customary to be included in any marketing materials or Offering Documents or of the type required by the Debt Commitment Letter (provided that the Company shall not be responsible for the preparation of any pro forma financial statements or pro forma adjustments thereto and, for the avoidance of doubt, shall not be obligated to provide any Excluded Information and provided further that the Company’s assistance to Parent with the preparation of pro-forma financial information and pro-forma financial statements shall not require the Company or any member of management to review approve or validate any financial information of Parent);
(ix) subject to clause (b) below, facilitate the taking, no earlier than the Closing, of customary corporate approvals, reasonably requested by Parent to permit the consummation of the Debt Financing (provided, that no such action shall be required of the Company Board);
(x) to the extent the satisfaction of such condition requires the cooperation of, or is within the control of, the Company and not the Parent, provide reasonable cooperation in satisfying the conditions precedent set forth in the Debt Commitment Letter as in effect as of the date hereof or any definitive agreement relating to the Debt Financing including any purchase or underwriting agreement, in each case as reasonably requested by the Debt Financing Entities (provided that any such conditions precedent related to a Definitive Agreement are not more onerous or impose any additional requirements than the conditions precedent set forth in the Debt Commitment Letter); and
(xi) provide reasonable and customary updates to materials provided in the due diligence process and reasonable access, at mutually agreed times and places and on a reasonable and customary number of occasions to the Company’s books and records and relevant personnel to the extent necessary to facilitate issuance of 10b-5 opinions by counsel to Parent and Merger Sub in connection with the issuance of high yield bonds customary for debt financing of the type consistent with the Debt Financing, at mutually agreed times and places.
(b) The foregoing notwithstanding, neither the Company nor any of its Representatives shall be required to take or permit the taking of any action pursuant to this Section 5.15 that could: (i) require the Company or any persons who are officers or directors of such entities to pass resolutions or consents to approve or authorize the execution of the Debt Financing or enter into, execute or deliver at least three Business Days any certificate, document, opinion, instrument or agreement or agree to any change or modification of any existing certificate, document, opinion, instrument or agreement (except any authorization letters delivered pursuant to Section 5.16(a)(ii), customary management representation letters required by the Company’s auditors in connection with the delivery of “comfort letters” as set forth in Section 5.16(a)(iv)), in each case, unless (A) such person will continue as an officer, director or equivalent of such entities following the Closing and (B) the effectiveness of such resolutions, consents, certificates, documents, instruments, agreements, changes or modifications is contingent upon the occurrence of the Closing, (ii) cause any representation or warranty in this Agreement to be breached by the Company, (iii) require the Company to pay any commitment or other similar fee or incur any other expense, liability or obligation in connection with the Debt Financing prior to the Closing or otherwise incur any obligation under any agreement, certificate, document or instrument (except to the extent the effectiveness of any such fee, expense, liability or obligation is subject to and conditioned upon the occurrence of the Closing), (iv) reasonably be expected to cause any director, officer, employee or stockholder of the Company to incur any personal liability, (v) reasonably be expected to conflict with the organizational documents of the Company or any Laws, (vi) reasonably be expected to result in a material violation or breach of, or a default (with or without notice, lapse of time, or both) under, any Company Material Contract, (vii) require the Company or any of its respective Representatives to provide access to or disclose information that the Company determines would result in a loss of attorney-client privilege, work-product doctrine or other similar legal privilege or protection of the Company, provided, that, unless prohibited by applicable Law, the Company shall (x) notify Parent that the provision of such access or the disclosure of such information is being so withheld and (y) use commercially reasonable efforts to provide such access or make such disclosure in a manner that does not result in a loss of attorney-client privilege, work-product doctrine or other similar legal privilege or protection of the Company, as applicable, (viii) require the Company or any of its Representatives to prepare or deliver any Excluded Information, (ix) require the Company to qualify for, or apply for any listing of debt securities or obtain prospectus clearance in any European Economic Area jurisdiction related to the Debt Financing prior to the Closing or (x) unreasonably interfere with the ongoing operations of the Company. Nothing contained in this Section 5.15 or otherwise in this Agreement shall require the Company, prior to the Closing, to be an issuer or other obligor with respect to the Debt Financing. Parent shall, promptly upon written request by the Company, reimburse the Company for all documentation reasonable and documented out-of-pocket costs incurred by it or its Representatives in connection with such cooperation and shall reimburse, indemnify and hold harmless the Company and its respective Representatives from and against any and all liabilities and losses suffered or incurred by them in connection with the arrangement of the Debt Financing or the transactions contemplated by this Section 5.15, any action taken by them at the request of Parent or its Representatives pursuant to this Section 5.15 and any information used in connection therewith (other than liabilities or losses resulting solely from information provided by the Company), in each case, other than to the extent any of the foregoing was suffered or incurred as a result of the bad faith, gross negligence or willful misconduct of, or material breach of this Agreement by, the Company or any of its Representatives, as determined in a final and non-appealable judgment by a court of competent jurisdiction.
(c) The Company shall use reasonable best efforts to periodically update any Required Financial Information provided to Parent as may be necessary so that such Required Financial Information is (i) Compliant and (ii) meets the applicable requirements set forth in the definition of “Required Financial Information”. Parent agrees to provide the Company drafts of all Offering Documents and all marketing materials for the Debt Financing with a reasonable time to review such documents and materials, and subject to Parent’s compliance with such obligation, the Company agrees to use reasonable best efforts to review all such Offering Documents and marketing materials and identify for Parent any information contained therein that it reasonably believes constitutes material non-public information with respect to the Company or their respective securities. If the Company identifies any such information (“Identified MNPI”), and such information is customarily included in offering documents or marketing materials for debt financing of the type consistent with the Debt Financing, is reasonably requested by Parent to be included in the Offering Documents or marketing materials for the Debt Financing and does not include information as to which the Company reasonably objects (any such Identified MNPI, “Acceptable MNPI”), then the Company shall file a Current Report on Form 8-K containing such material non-public information. Parent shall remove all such Identified MNPI that is not Acceptable MNPI from such Offering Documents and marketing materials. Parent further agrees to give due consideration to the reasonable additions, deletions or changes suggested to such Offering Documents by the Company to the extent the Company’s review has identified any inaccuracies or misstatements regarding the Company.
(d) All non-public or otherwise confidential information regarding the Company or any of its Subsidiaries affiliates obtained by Parent or its Representatives pursuant to this Section 5.15 shall be kept confidential in accordance with the Confidentiality Agreement. The Company hereby consents to the use of its logos in connection with the Debt Financing; provided that such trademarks and logos are required by regulatory authorities used solely in a manner that is not intended to or reasonably likely to harm or disparage the Company or the reputation or goodwill of the Company.
(e) Notwithstanding anything to the contrary in this Agreement, the condition set forth in Section 5.16, as it applies to the Company’s obligations under applicable “know-your-customer” rules this Section 5.16, shall be deemed satisfied unless (i) the Company has failed to satisfy its obligations in any material respect under this Section 5.16, (ii) Parent has notified the Company of such failure in writing a reasonably sufficient amount of time prior to the Closing to afford the Company with a reasonable opportunity to cure such failure and regulations, including (iii) such failure has been a proximate cause of Parent and Merger Sub’s failure to receive the USA PATRIOT Actproceeds of the Debt Financing.
Appears in 1 contract
Samples: Merger Agreement (Iteris, Inc.)
