Cooperation as to Certain Indebtedness. AbbVie or one or more of its Subsidiaries may (i) commence any of the following: (A) one or more offers to purchase any or all of the outstanding debt issued under the Indentures for cash (the “Offers to Purchase”); or (B) one or more offers to exchange any or all of the outstanding debt issued under the Indentures for securities issued by AbbVie or any of its Affiliates (the “Offers to Exchange”); and (ii) solicit the consent of the holders of debt issued under the Indentures regarding certain proposed amendments to the applicable Indenture (the “Consent Solicitations” and, together with the Offers to Purchase and Offers to Exchange, if any, the “Allergan Note Offers and Consent Solicitations”); provided that the closing of any such transaction shall not be consummated until the Completion and any such transaction shall be funded using consideration provided by AbbVie. Any Allergan Note Offers and Consent Solicitations shall be made on such terms and conditions (including price to be paid and conditionality) as are proposed by AbbVie and which are permitted by the terms of the applicable Indenture and applicable Laws, including SEC rules and regulations. AbbVie shall consult with Allergan regarding the material terms and conditions of any Allergan Note Offers and Consent Solicitations, including the timing and commencement of any Allergan Note Offers and Consent Solicitations and any tender deadlines. AbbVie shall have provided Allergan with the necessary offer to purchase, offer to exchange, consent solicitation statement, letter of transmittal, press release, if any, in connection therewith, and each other document relevant to the transaction that will be distributed by AbbVie in the applicable Allergan Note Offers and Consent Solicitations (collectively, the “Debt Offer Documents”) a reasonable period of time in advance of commencing the applicable Allergan Note Offers and Consent Solicitations to allow Allergan and its counsel to review and comment on such Debt Offer Documents, and AbbVie shall give reasonable and good faith consideration to any comments made or input provided by Allergan and its legal counsel. Subject to the receipt of the requisite holder consents, in connection with any or all of the Consent Solicitations, Allergan shall execute a supplemental indenture to the applicable Indenture in accordance with the terms thereof amending the terms and provisions of such Indenture as described in the applicable Debt Offer Documents in a form as reasonably requested by AbbVie (each, an “Allergan Supplemental Indenture”); provided that the amendments effected by such supplemental indenture shall not become operative until the Completion. Subject to the second paragraph of Section 7.9(a) above, until the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9 Allergan shall use its reasonable best efforts, and shall cause each of its Subsidiaries to use its reasonable best efforts, and shall use its reasonable best efforts to cause its and their respective Representatives to use their reasonable best efforts, to provide all reasonable and customary cooperation as may be reasonably requested by AbbVie in writing to assist AbbVie in connection with any Allergan Note Offers and Consent Solicitations (including upon AbbVie’s written request, using reasonable best efforts to cause Allergan’s independent accountants to provide customary consents for use of their reports to the extent required in connection with any Allergan Note Offers and Consent Solicitations). The dealer manager, solicitation agent, information agent, depositary or other agent retained in connection with any Allergan Note Offers and Consent Solicitations will be selected and retained by AbbVie, and their fees and out-of-pocket expenses will be paid directly by AbbVie. If, at any time prior to the completion of the Allergan Note Offers and Consent Solicitations, Allergan or any of its Subsidiaries, on the one hand, or AbbVie or any of its Subsidiaries, on the other hand, discovers any information that should be set forth in an amendment or supplement to the Debt Offer Documents, so that the Debt Offer Documents shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of circumstances under which they are made, not misleading, such party that discovers such information shall use reasonable best efforts to promptly notify the other Party, and an appropriate amendment or supplement prepared by AbbVie describing such information shall be disseminated to the holders of the applicable notes, debentures or other debt securities of Allergan or its Subsidiaries outstanding under the applicable Indenture. The consummation of any or all of the Allergan Note Offers and Consent Solicitations shall not be a condition to Completion.
Appears in 4 contracts
Samples: Transaction Agreement, Transaction Agreement (Allergan PLC), Transaction Agreement (AbbVie Inc.)
Cooperation as to Certain Indebtedness. AbbVie If requested by Parent, the Company shall use its reasonable best efforts to assist Parent or one or more of its Subsidiaries may in (i) commence commencing any of the following: following (as requested by Parent): (A) one or more offers to purchase any or all of the outstanding debt issued under the Indentures Indenture for cash (the “Offers to Purchase”); or (B) one or more offers to exchange any or all of the outstanding debt issued under the Indentures Indenture for securities issued by AbbVie Parent or any of its Affiliates (the “Offers to Exchange”); and (ii) solicit soliciting the consent of the holders of debt issued under the Indentures Indenture regarding certain proposed amendments to the applicable Indenture (the “Consent Solicitations” and, together with the Offers to Purchase and Offers to Exchange, if any, the “Allergan Company Note Offers and Consent Solicitations”); provided that the closing (or effectiveness) of any such transaction shall not be consummated until the Completion and any such transaction shall be funded using consideration provided by AbbVieParent. Any Allergan Company Note Offers and Consent Solicitations shall be made on such terms and conditions (including price to be paid and conditionality) as are proposed by AbbVie Parent and which are permitted by the terms of the applicable Indenture and applicable Laws, including SEC rules and regulations. AbbVie Parent shall consult with Allergan the Company regarding the material terms and conditions of any Allergan Company Note Offers and Consent Solicitations, including the timing and commencement of any Allergan Company Note Offers and Consent Solicitations and any tender deadlines. AbbVie Parent shall have provided Allergan the Company with the necessary offer to purchase, offer to exchange, consent solicitation statement, letter of transmittal, press release, if any, in connection therewith, and each other document relevant to the transaction that will be distributed by AbbVie Parent in the applicable Allergan Company Note Offers and Consent Solicitations (collectively, the “Debt Offer Documents”) a reasonable period of time in advance of commencing the applicable Allergan the Company Note Offers and Consent Solicitations to allow Allergan the Company and its counsel to review and comment on such Debt Offer Documents, and AbbVie Parent shall give reasonable and good faith consideration to any comments made or input provided by Allergan the Company and its legal counsel. Subject to the receipt of the requisite holder consents, in connection with any or all of the Consent Solicitations, Allergan the Company shall execute a supplemental indenture to the applicable Indenture in accordance with the terms thereof amending the terms and provisions of such the Indenture as described in the applicable Debt Offer Documents in a form as reasonably requested by AbbVie Parent (each, an the “Allergan Company Supplemental Indenture”); provided that the amendments effected by such supplemental indenture shall not become operative until the Completion. Subject to the second paragraph of Section 7.9(a7.8(a) above, until the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9 Allergan Section 9, the Company shall use its reasonable best efforts, and shall cause each of its Subsidiaries to use its reasonable best efforts, and shall use its reasonable best efforts to cause its and their respective Representatives to use their reasonable best efforts, to provide all reasonable and customary cooperation as may be reasonably requested by AbbVie Parent in writing to assist AbbVie Parent in connection with any Allergan Company Note Offers and Consent Solicitations (including upon AbbVieParent’s written request, using reasonable best efforts to cause Allerganthe Company’s independent accountants to provide customary consents for use of their reports to the extent required in connection with any Allergan Company Note Offers and Consent Solicitations). The dealer manager, solicitation agent, information agent, depositary or other agent retained in connection with any Allergan Company Note Offers and Consent Solicitations will be selected and retained by AbbVieParent, and their fees and out-of-pocket expenses will be paid directly by AbbVieParent. If, at any time prior to the completion of the Allergan Company Note Offers and Consent Solicitations, Allergan the Company or any of its Subsidiaries, on the one hand, or AbbVie Parent or any of its Subsidiaries, on the other hand, discovers any information that should be set forth in an amendment or supplement to the Debt Offer Documents, so that the Debt Offer Documents shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of circumstances under which they are made, not misleading, such party that discovers such information shall use reasonable best efforts to promptly notify the other Party, and an appropriate amendment or supplement prepared by AbbVie Parent describing such information shall be disseminated to the holders of the applicable notes, debentures or other debt securities of Allergan the Company or its Subsidiaries outstanding under the applicable Indenture. The consummation of any or all of the Allergan Company Note Offers and Consent Solicitations shall not be a condition to Completion.
Appears in 2 contracts
Samples: Transaction Agreement (Amgen Inc), Transaction Agreement (Horizon Therapeutics Public LTD Co)
Cooperation as to Certain Indebtedness. AbbVie Parent or one or more of its Subsidiaries may (ia) commence any of the following: (Ai) one or more offers to purchase any or all of the outstanding debt issued under the Indentures for cash (the “Offers to Purchase”); or (Bii) one or more offers to exchange any or all of the outstanding debt issued under the Indentures for securities issued by AbbVie Parent (or any of its Affiliates Affiliates) (the “Offers to Exchange”); and (iib) solicit the consent of the holders of debt issued under the Indentures regarding certain proposed amendments to the applicable Indenture (the “Consent Solicitations” and, together with the Offers to Purchase and Offers to Exchange, if any, the “Allergan Company Note Offers and Consent Solicitations”); provided that the closing of any such transaction shall not be consummated until the Completion Closing and any such transaction shall be funded using consideration provided by AbbVieParent. Any Allergan Company Note Offers and Consent Solicitations shall be made on such terms and conditions (including price to be paid and conditionality) as are proposed by AbbVie Parent and which are permitted by the terms of the applicable Indenture and applicable Laws, including SEC rules and regulations. AbbVie Parent shall consult with Allergan the Company regarding the material terms and conditions of any Allergan Company Note Offers and Consent Solicitations, including the timing and commencement of any Allergan Company Note Offers and Consent Solicitations and any tender deadlines. AbbVie Parent shall have provided Allergan the Company with the necessary offer to purchase, offer to exchange, consent solicitation statement, letter of transmittal, press release, if any, in connection therewith, and each other document relevant to the transaction that will be distributed by AbbVie the Parent in the applicable Allergan Company Note Offers and Consent Solicitations (collectively, the “Debt Offer Documents”) a reasonable period of time in advance of commencing the applicable Allergan Company Note Offers and Consent Solicitations to allow Allergan the Company and its counsel to review and comment on such Debt Offer Documents, and AbbVie Parent shall give reasonable and good faith consideration to any comments made or input provided by Allergan the Company and its legal counsel. Subject to the receipt of the requisite holder consents, in connection with any or all of the Consent Solicitations, Allergan the Company shall execute a supplemental indenture to the applicable Indenture in accordance with the terms thereof amending the terms and provisions of such Indenture as described in the applicable Debt Offer Documents in a form as reasonably requested by AbbVie Parent (each, an a “Allergan Company Supplemental Indenture”); provided that the amendments effected by such supplemental indenture shall not become operative effective until the CompletionClosing. Subject to the second paragraph of Section 7.9(a) above, until the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9 Allergan shall use its reasonable best effortsThe Company shall, and shall cause each of its Subsidiaries to use its reasonable best effortsto, and shall use its commercially reasonable best efforts to cause its and their respective Representatives to use their reasonable best effortsto, to provide all reasonable and customary cooperation as may be reasonably requested by AbbVie Parent in writing to assist AbbVie Parent in connection with any Allergan Company Note Offers and Consent Solicitations (including including, but not limited to, upon AbbVieParent’s written request, using commercially reasonable best efforts to cause Allerganthe Company’s independent accountants to provide customary consents for use of their reports to the extent required in connection with any Allergan Company Note Offers and Consent Solicitations) (provided that such requested cooperation does not unreasonably interfere with the ongoing business or operations of the Company and its Subsidiaries); provided that neither the Company nor counsel for the Company shall be required to furnish any certificates, legal opinions or negative assurance letters in connection with any Company Note Offers and Consent Solicitations (other than, in connection with the execution of any Company Supplemental Indenture relating to the Consent Solicitations, with respect to which the Company shall (x) deliver customary officer’s certificates (a “Company Indenture Officers’ Certificate”) and (y) use commercially reasonable efforts to cause counsel for the Company to deliver customary legal opinions to the trustee under the applicable Indenture in the form required by Section 10.3 of the applicable Indenture (a “Company Opinion of Counsel”), if the trustee under the applicable Indenture that the Company Supplemental Indenture amended requires an opinion of counsel to the Company thereunder, to the extent such certificates and opinions would not conflict with applicable Laws and would be accurate in light of the facts and circumstances at the time delivered) or execute any other instruments or agreements in connection therewith other than the Company Supplemental Indenture described in the immediately preceding sentence. The dealer manager, solicitation agent, information agent, depositary or other agent retained in connection with any Allergan Company Note Offers and Consent Solicitations will be selected and by Parent, retained by AbbVieParent, and their fees and out-of-pocket expenses will be paid directly by AbbVieParent. If, at any time prior to the completion of the Allergan Company Note Offers and Consent Solicitations, Allergan the Company or any of its Subsidiaries, on the one hand, or AbbVie Parent or any of its Subsidiaries, on the other hand, discovers any information that should be set forth in an amendment or supplement to the Debt Offer Documents, so that the Debt Offer Documents shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of circumstances under which they are made, not misleading, such party that discovers such information shall use commercially reasonable best efforts to promptly notify the other Partyparty, and an appropriate amendment or supplement prepared by AbbVie Parent describing such information shall be disseminated to the holders of the applicable notes, debentures or other debt securities of Allergan or its Subsidiaries the Company outstanding under the applicable Indenture. The consummation of any or all of the Allergan Company Note Offers and Consent Solicitations shall not be a condition to CompletionClosing.
Appears in 2 contracts
Samples: Merger Agreement (Celgene Corp /De/), Merger Agreement (Bristol Myers Squibb Co)
Cooperation as to Certain Indebtedness. AbbVie or one or more of (a) Prior to the Closing, the Company will, and will cause its Subsidiaries may to, at the written request of Parent, (i) commence any deliver notices of prepayment and/or notices for termination of commitments within the following: (A) one or more offers to purchase any or all of time periods required by the outstanding debt issued under the Indentures for cash (the “Offers to Purchase”); or (B) one or more offers to exchange any or all of the outstanding debt issued under the Indentures for securities issued by AbbVie or any of its Affiliates (the “Offers to Exchange”); Existing Credit Facilities and (ii) solicit obtain and deliver to Parent at least two (2) Business Days prior to the consent Closing (x) customary payoff letters providing for the termination of the holders Existing Credit Facilities and the termination and release of debt issued under all guarantees thereof and Liens related thereto and setting forth the Indentures regarding certain proposed amendments payoff amount in connection with such termination and release, (y) customary release documentation that is necessary for the release of all Liens securing the Existing Credit Facilities and (z) if applicable, instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of the Existing Credit Facilities and all guarantees thereof and Liens related thereto; provided that any such notice or payoff letter will be expressly conditioned on the Closing, in each case to facilitate Parent’s prepayment and termination of the Existing Credit Facilities.
(b) Prior to the applicable Closing, the Company will, and will cause its Subsidiaries to, take any actions reasonably requested by Parent to facilitate the redemption, satisfaction and/or discharge of the Existing Notes by the Surviving Corporation at or after the Effective Time pursuant to the Existing Indenture (the “Consent Solicitations” and, together with the Offers to Purchase and Offers to Exchange, if any, the “Allergan Note Offers and Consent SolicitationsRedemption”); provided that the closing of , including (i) delivering any such transaction shall not be consummated until the Completion notices, certificates and any such transaction shall be funded using consideration provided by AbbVie. Any Allergan Note Offers and Consent Solicitations shall be made on such terms and conditions (including price opinions with respect to be paid and conditionality) as are proposed by AbbVie and which are permitted by the terms redemption, satisfaction and/or discharge of the applicable Indenture and applicable Laws, including SEC rules and regulations. AbbVie shall consult with Allergan regarding the material terms and conditions of any Allergan Note Offers and Consent Solicitations, including the timing and commencement of any Allergan Note Offers and Consent Solicitations and any tender deadlines. AbbVie shall have provided Allergan with the necessary offer to purchase, offer to exchange, consent solicitation statement, letter of transmittal, press release, if any, in connection therewith, and each other document relevant to the transaction that will be distributed by AbbVie in the applicable Allergan Note Offers and Consent Solicitations (collectively, the “Debt Offer Documents”) a reasonable period of time in advance of commencing the applicable Allergan Note Offers and Consent Solicitations to allow Allergan and its counsel to review and comment on such Debt Offer Documents, and AbbVie shall give reasonable and good faith consideration to any comments made or input provided by Allergan and its legal counsel. Subject to the receipt of the requisite holder consents, in connection with any or all of the Consent Solicitations, Allergan shall execute a supplemental indenture to the applicable Indenture in accordance with the terms thereof amending the terms and provisions of such Indenture as described in the applicable Debt Offer Documents in a form as reasonably requested by AbbVie (each, an “Allergan Supplemental Indenture”); provided that the amendments effected by such supplemental indenture shall not become operative until the Completion. Subject to the second paragraph of Section 7.9(a) above, until the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9 Allergan shall use its reasonable best efforts, and shall cause each of its Subsidiaries to use its reasonable best efforts, and shall use its reasonable best efforts to cause its and their respective Representatives to use their reasonable best efforts, to provide all reasonable and customary cooperation Existing Notes as may be reasonably requested required by AbbVie the Existing Indenture within the time periods specified therein (it being understood that in writing no event will the Company be required to assist AbbVie in connection with deliver any Allergan Note Offers notices to redeem, repurchase, satisfy or discharge any Existing Notes prior to the Effective Time unless such notice is conditioned on the occurrence of the Effective Time) and Consent Solicitations (including upon AbbVie’s written request, ii) using reasonable best efforts to cause Allergan’s independent accountants the trustee under the Existing Indenture to provide customary consents for use of their reports to limit notice periods as permitted by the extent Indenture, execute any documents and take any actions that may be required in connection with any Allergan Note Offers and Consent Solicitations). The dealer manager, solicitation agent, information agent, depositary or other agent retained in connection with any Allergan Note Offers and Consent Solicitations will be selected and retained by AbbVie, and their fees and out-of-pocket expenses will be paid directly by AbbVie. If, at any time prior to the completion of the Allergan Note Offers and Consent Solicitations, Allergan or any of its Subsidiaries, on the one hand, or AbbVie or any of its Subsidiaries, on the other hand, discovers any information that should be set forth in an amendment or supplement to the Debt Offer Documents, so that the Debt Offer Documents shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary Effective Time in order to make facilitate or consummate the statements therein, in light of circumstances under which they are made, not misleading, such party that discovers such information shall use reasonable best efforts to promptly notify the other Party, and an appropriate amendment or supplement prepared by AbbVie describing such information shall be disseminated Redemption pursuant to the holders provisions of the applicable notes, debentures or other debt securities of Allergan or its Subsidiaries outstanding under the applicable Existing Indenture. The consummation of any or all of the Allergan Note Offers and Consent Solicitations shall not be a condition to Completion.
Appears in 2 contracts
Samples: Merger Agreement (Home Depot, Inc.), Merger Agreement (HD Supply Holdings, Inc.)
Cooperation as to Certain Indebtedness. AbbVie If requested by Parent, the Company shall use its reasonable best efforts to assist Parent or one or more of its Subsidiaries may in
(i) commence commencing any of the following: following (as requested by Xxxxxx): (A) one or more offers to purchase any or all of the outstanding debt issued under the Indentures Indenture for cash (the “Offers to Purchase”); or (B) one or more offers to exchange any or all of the outstanding debt issued under the Indentures Indenture for securities issued by AbbVie Parent or any of its Affiliates (the “Offers to Exchange”); and (ii) solicit soliciting the consent of the holders of debt issued under the Indentures Indenture regarding certain proposed amendments to the applicable Indenture (the “Consent Solicitations” and, together with the Offers to Purchase and Offers to Exchange, if any, the “Allergan Company Note Offers and Consent Solicitations”); provided that the closing (or effectiveness) of any such transaction shall not be consummated until the Completion and any such transaction shall be funded using consideration provided by AbbVieParent. Any Allergan Company Note Offers and Consent Solicitations shall be made on such terms and conditions (including price to be paid and conditionality) as are proposed by AbbVie Parent and which are permitted by the terms of the applicable Indenture and applicable Laws, including SEC rules and regulations. AbbVie Parent shall consult with Allergan the Company regarding the material terms and conditions of any Allergan Company Note Offers and Consent Solicitations, including the timing and commencement of any Allergan Company Note Offers and Consent Solicitations and any tender deadlines. AbbVie Parent shall have provided Allergan the Company with the necessary offer to purchase, offer to exchange, consent solicitation statement, letter of transmittal, press release, if any, in connection therewith, and each other document relevant to the transaction that will be distributed by AbbVie Parent in the applicable Allergan Company Note Offers and Consent Solicitations (collectively, the “Debt Offer Documents”) a reasonable period of time in advance of commencing the applicable Allergan the Company Note Offers and Consent Solicitations to allow Allergan the Company and its counsel to review and comment on such Debt Offer Documents, and AbbVie Parent shall give reasonable and good faith consideration to any comments made or input provided by Allergan the Company and its legal counsel. Subject to the receipt of the requisite holder consents, in connection with any or all of the Consent Solicitations, Allergan the Company shall execute a supplemental indenture to the applicable Indenture in accordance with the terms thereof amending the terms and provisions of such the Indenture as described in the applicable Debt Offer Documents in a form as reasonably requested by AbbVie Parent (each, an the “Allergan Company Supplemental Indenture”); provided that the amendments effected by such supplemental indenture shall not become operative until the Completion. Subject to the second paragraph of Section 7.9(a7.8(a) above, until the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9 Allergan Section 9, the Company shall use its reasonable best efforts, and shall cause each of its Subsidiaries to use its reasonable best efforts, and shall use its reasonable best efforts to cause its and their respective Representatives to use their reasonable best efforts, to provide all reasonable and customary cooperation as may be reasonably requested by AbbVie Parent in writing to assist AbbVie Parent in connection with any Allergan Company Note Offers and Consent Solicitations (including upon AbbVieXxxxxx’s written request, using reasonable best efforts to cause Allerganthe Company’s independent accountants to provide customary consents for use of their reports to the extent required in connection with any Allergan Company Note Offers and Consent Solicitations). The dealer manager, solicitation agent, information agent, depositary or other agent retained in connection with any Allergan Company Note Offers and Consent Solicitations will be selected and retained by AbbVieParent, and their fees and out-of-pocket expenses will be paid directly by AbbVieParent. If, at any time prior to the completion of the Allergan Company Note Offers and Consent Solicitations, Allergan the Company or any of its Subsidiaries, on the one hand, or AbbVie Parent or any of its Subsidiaries, on the other hand, discovers any information that should be set forth in an amendment or supplement to the Debt Offer Documents, so that the Debt Offer Documents shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of circumstances under which they are made, not misleading, such party that discovers such information shall use reasonable best efforts to promptly notify the other Party, and an appropriate amendment or supplement prepared by AbbVie Parent describing such information shall be disseminated to the holders of the applicable notes, debentures or other debt securities of Allergan the Company or its Subsidiaries outstanding under the applicable Indenture. The consummation of any or all of the Allergan Company Note Offers and Consent Solicitations shall not be a condition to Completion.
Appears in 1 contract
Samples: Transaction Agreement
Cooperation as to Certain Indebtedness. AbbVie Parent or one or more of its Subsidiaries may (ia) commence any of the following: (A) one or more offers to purchase any or all of the outstanding debt issued under the Indentures for cash (the “Offers to Purchase”); or (B) make one or more offers to exchange any or all of the outstanding debt issued under the Company Indentures for securities issued by AbbVie Parent OP or any of its Affiliates the Partnership Surviving Entity (or their Affiliates) (the “Offers to Exchange”); and and/or (iib) solicit the consent of the holders of debt issued under the Company Indentures regarding certain proposed amendments to the applicable Indenture Company Indentures (the “Consent Solicitations” and, together with the Offers to Purchase and Offers to Exchange, if any, the “Allergan Company Note Offers and Consent Solicitations”); provided that the closing of any such transaction shall not be consummated until the Completion Closing and any such transaction shall be funded using consideration provided by AbbVieParent. Any Allergan Company Note Offers and Consent Solicitations shall be made on such terms and conditions (including price to be paid and conditionality) as are proposed by AbbVie Parent and which are permitted by the terms of the applicable Indenture Company Indentures and applicable Laws, including SEC rules and regulations. AbbVie Parent shall consult with Allergan the Company regarding the material terms and conditions of any Allergan Note Offers and Consent Solicitations, including the timing and commencement of any Allergan Company Note Offers and Consent Solicitations and any tender deadlines. AbbVie Parent shall have provided Allergan provide the Company with the necessary offer to purchase, offer to exchange, consent solicitation statement, letter of transmittal, press release, if any, in connection therewith, and each other document relevant to the transaction that will be distributed by AbbVie Parent in the applicable Allergan Company Note Offers and Consent Solicitations (collectively, the “Debt Offer Documents”) a reasonable period of time in advance of commencing the applicable Allergan Company Note Offers and Consent Solicitations to allow Allergan the Company and its counsel to review and comment on such Debt Offer Documents, and AbbVie Parent shall give reasonable and good faith consideration to any comments made or input provided by Allergan the Company and its legal counsel. Subject to the receipt of the requisite holder consents, in connection with any or all of the Consent Solicitations, Allergan the Company shall, and shall use commercially reasonable efforts to cause the trustee under the applicable Company Indenture to, execute a supplemental indenture to the applicable Company Indenture in accordance with the terms thereof amending the terms and provisions of such Company Indenture as described in the applicable Debt Offer Documents in a form as reasonably requested by AbbVie Parent (each, an a “Allergan Company Supplemental Indenture”); provided that the amendments effected by such supplemental indenture shall not become operative until the Completionprior to Closing. Subject to the second paragraph of Section 7.9(a) above, until the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9 Allergan shall use its reasonable best effortsThe Company shall, and shall cause each of its Subsidiaries to use its reasonable best effortsto, and shall use its reasonable best efforts to cause its and their respective Representatives to use their reasonable best effortsto, to provide all reasonable and customary cooperation and information customary for transactions of the type contemplated by the Company Note Offers and Consent Solicitations, and consistent with the cooperation to be provided by the Company, the Company Subsidiaries and the respective officers and employees of the Company and the Company Subsidiaries as set forth in Section 8.23(a) with respect to the Financing, as may be reasonably requested by AbbVie Parent in writing to assist AbbVie Parent in connection with any Allergan Company Note Offers and Consent Solicitations (including including, but not limited to, providing such reasonably requested information to the information agent or other agent for the Company Note Offers and Consent Solicitations in order for it to provide bondholder identification reports, and upon AbbVieParent’s written request, using reasonable best efforts to cause Allerganthe Company’s independent accountants to provide customary consents for use of their reports to the extent required in connection with any Allergan Company Note Offers and Consent Solicitations); provided that neither the Company nor counsel for the Company shall be required to furnish any certificates, legal opinions or negative assurance letters in connection with any Company Note Offers and Consent Solicitations other than, in connection with the execution of any Company Supplemental Indenture relating to the Consent Solicitations, with respect to which the Company shall (x) deliver customary officers’ certificates and (y) customary legal opinions to the trustee under the applicable Company Indenture in the form required by the applicable Company Indenture, in each case, to the extent such certificates and opinions would not conflict with applicable Laws. The Any dealer manager, solicitation agent, information agent, depositary or other agent retained in connection with any Allergan Company Note Offers and Consent Solicitations will be selected and by Parent, retained by AbbVieParent, and their fees and out-of-pocket expenses will be paid directly by AbbVieParent. If, at any time prior to the completion of the Allergan Company Note Offers and Consent Solicitations, Allergan the Company or any of its Subsidiaries, on the one hand, or AbbVie Parent or any of its Subsidiaries, on the other hand, discovers any information that should be set forth in an amendment or supplement to the Debt Offer Documents, so that the Debt Offer Documents shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of circumstances under which they are made, not misleading, such party that discovers such information shall use reasonable best efforts to promptly notify the other Partyparty, and an appropriate amendment or supplement prepared by AbbVie Parent describing such information shall be disseminated to the holders of the applicable notes, debentures or other debt securities of Allergan or its Subsidiaries the Company outstanding under the applicable Company Indenture. The consummation of any or all of the Allergan Company Note Offers and Consent Solicitations shall not be a condition to CompletionClosing.
Appears in 1 contract
Samples: Master Transaction Agreement (MGM Growth Properties Operating Partnership LP)
Cooperation as to Certain Indebtedness. AbbVie The Company shall deliver all notices (which notices may be subject to the consummation of the Merger) and take all other actions required to facilitate the termination of commitments in respect of the Credit Agreement, the repayment in full of all obligations in respect of Indebtedness for borrowed money outstanding thereunder and the release of guarantees in connection therewith on the Closing Date (such terminations, repayments and releases, the “Existing Credit Facility Termination”). In furtherance and not in limitation of the foregoing, the Company shall, use reasonable best efforts to deliver to Parent (A) at least ten (10) Business Days prior to the Closing Date a draft payoff letter and (B) on the Closing Date, an executed payoff letter with respect to the Credit Agreement (the “Payoff Letter”) in form and substance customary for transactions of this type, from the applicable agent on behalf of the Persons to whom the Indebtedness for borrowed money under the Credit Agreement is owed, which Payoff Letter shall, among other things, include the payoff amount and provide that any liens granted by the Company or one any Company Subsidiaries in connection therewith, shall, upon the payment of the amount set forth in the applicable Payoff Letter at or more prior to the Closing, be released and terminated. Notwithstanding the foregoing, in no event shall this Section 5.14 require the Company or any of its the Company’s Subsidiaries may to cause the Existing Credit Facility Termination unless (x) the Closing shall occur substantially concurrently and (y) Parent shall have (i) commence any provided or caused to be provided to the Company funds in an amount sufficient to pay in full all Obligations (as defined in the Credit Agreement) under the Loan Documents (as defined in the Credit Agreement), other than indemnities and other contingent obligations not then due and payable and as to which no claim has been made, as of the following: anticipated Closing Date (Aand the daily accrual thereafter) one or more offers to purchase any or all of the outstanding debt issued under the Indentures for cash (the “Offers to Purchase”); or (B) one or more offers to exchange any or all of the outstanding debt issued under the Indentures for securities issued by AbbVie or any of its Affiliates (the “Offers to Exchange”); and (ii) solicit provided or caused to be provided to the Company funds in an amount sufficient to cash collateralize all L/C Exposure (as defined in the Credit Agreement) in accordance with the terms of the Credit Agreement or has made other arrangements satisfactory to Lenders (as defined in the Credit Agreement) and the Issuing Bank (as defined in the Credit Agreement). The Company shall, and shall cause each of the Company Subsidiaries to, upon written request from Parent, use commercially reasonable efforts to modify or amend (the “Notes Amendments”), with the consent of the holders of debt issued under the Indentures regarding certain proposed amendments Senior Unsecured Notes, the note purchase agreements governing the Senior Unsecured Notes to expressly permit conditional notices of redemption or prepayment with respect to any redemption or prepayment of any Senior Unsecured Notes in connection with the Closing (or to reduce the notice period required in connection with any such redemption or prepayment); it being understood that in no event shall this sentence require the Company or any of its Subsidiaries to incur any liability or pay any amounts (in each case, other than fees or expenses of legal counsel to the applicable Indenture Company or other incidental expenses in connection with the Notes Amendments) or otherwise amend the terms of the Senior Unsecured Notes in a manner adverse to the Company or any of its Subsidiaries. If the Notes Amendments are not obtained by August 1, 2019 (the “Consent Solicitations” andNotes Amendments Trigger Date”), together with then at the Offers to Purchase and Offers to Exchange, if anywritten request of Parent, the “Allergan Note Offers and Consent Solicitations”); provided that the closing of any such transaction shall not be consummated until the Completion and any such transaction shall be funded using consideration provided by AbbVie. Any Allergan Note Offers and Consent Solicitations shall be made on such terms and conditions (including price Company shall, pursuant to be paid and conditionality) as are proposed by AbbVie and which are permitted by the terms of the applicable Indenture note purchase agreement, issue one or more notices of optional redemption or prepayment with respect to the Senior Unsecured Notes in a manner consistent with the note purchase agreements governing such Senior Unsecured Notes such that the Senior Unsecured Notes shall be repaid on or prior to the Closing Date (together with all interest, prepayment premiums or “make- whole” amounts and applicable Lawsother amounts due upon the repayment of the principal of such Senior Unsecured Notes) and take all other actions required by such note purchase agreements to cause the Senior Unsecured Notes to be repaid on or prior to the Closing Date (or, including SEC rules and regulations. AbbVie shall consult with Allergan regarding in each case, if such repayment on or prior to the material terms and conditions of any Allergan Note Offers and Consent Solicitations, including Closing Date is not practicable given the timing of the Notes Amendments Trigger Date and commencement the Company’s receipt of any Allergan Note Offers and Consent Solicitations and any tender deadlines. AbbVie shall have provided Allergan with the necessary offer to purchase, offer to exchange, consent solicitation statement, letter such written request of transmittal, press release, if any, in connection therewith, and each other document relevant Parent relative to the transaction that will be distributed by AbbVie in timing of the applicable Allergan Note Offers and Consent Solicitations (collectivelyClosing Date, then as soon as practicable after the Closing Date). Prior to the Closing Date, the “Debt Offer Documents”) a reasonable period of time in advance of commencing Company shall use its request from the applicable Allergan Note Offers and Consent Solicitations to allow Allergan and its counsel to review and comment on such Debt Offer Documents, and AbbVie shall give reasonable and good faith consideration to any comments made or input provided by Allergan and its legal counsel. Subject to the receipt of the requisite holder consents, in connection with any or all of the Consent Solicitations, Allergan shall execute a supplemental indenture to the applicable Indenture beneficiary thereof in accordance with the terms thereof amending the terms and provisions an acknowledgment of such Indenture as described in the applicable Debt Offer Documents in a form as reasonably requested by AbbVie termination (each, an “Allergan Supplemental Indenture”); provided that the amendments effected by such supplemental indenture shall not become operative until the Completion. Subject or similar document) with respect to the second paragraph Completion Guaranty Agreement, dated as of Section 7.9(a) aboveJanuary 15, until 1999, between the earlier Company and The Unified Government of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9 Allergan shall use its reasonable best effortsWyandotte County/Kansas City, and shall cause each of its Subsidiaries to use its reasonable best efforts, and shall use its reasonable best efforts to cause its and their respective Representatives to use their reasonable best efforts, to provide all reasonable and customary cooperation as may be reasonably requested by AbbVie in writing to assist AbbVie in connection with any Allergan Note Offers and Consent Solicitations (including upon AbbVie’s written request, using reasonable best efforts to cause Allergan’s independent accountants to provide customary consents for use of their reports to the extent required in connection with any Allergan Note Offers and Consent Solicitations). The dealer manager, solicitation agent, information agent, depositary or other agent retained in connection with any Allergan Note Offers and Consent Solicitations will be selected and retained by AbbVie, and their fees and out-of-pocket expenses will be paid directly by AbbVie. If, at any time prior to the completion of the Allergan Note Offers and Consent Solicitations, Allergan or any of its Subsidiaries, on the one hand, or AbbVie or any of its Subsidiaries, on the other hand, discovers any information that should be set forth in an amendment or supplement to the Debt Offer Documents, so that the Debt Offer Documents shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of circumstances under which they are made, not misleading, such party that discovers such information shall use reasonable best efforts to promptly notify the other Party, and an appropriate amendment or supplement prepared by AbbVie describing such information shall be disseminated to the holders of the applicable notes, debentures or other debt securities of Allergan or its Subsidiaries outstanding under the applicable Indenture. The consummation of any or all of the Allergan Note Offers and Consent Solicitations shall not be a condition to CompletionKansas.
Appears in 1 contract
Cooperation as to Certain Indebtedness. AbbVie or one or more (a) The Company shall, and shall cause each of its Subsidiaries Subsidiaries, and each of its and their respective directors, officers, agents, control persons, employees, and Representatives to, use reasonable best efforts to commence (or, at Liberty’s election in its sole discretion, to cooperate reasonably with and assist Liberty and its directors, officers, agents, control persons, employees and Representatives in commencing) promptly following the date hereof (or on such other date as Liberty may (ireasonably request) commence any a solicitation of a consent and amendment to each of the following: Senior Credit Agreements on terms and conditions requested by Liberty (A) one or more offers to purchase any or all of the outstanding debt issued under the Indentures for cash (the each, a “Offers to Purchase”); or (B) one or more offers to exchange any or all of the outstanding debt issued under the Indentures for securities issued by AbbVie or any of its Affiliates (the “Offers to Exchange”); Credit Agreement Consent and (ii) solicit the consent of the holders of debt issued under the Indentures regarding certain proposed amendments to the applicable Indenture (the “Consent SolicitationsAmendment” and, together with the Offers to Purchase and Offers to Exchange, if any, the “Allergan Note Offers and Consent Solicitations”); provided that the closing of any such transaction shall not be consummated until the Completion and any such transaction shall be funded using consideration provided by AbbVie. Any Allergan Note Offers and Consent Solicitations shall be made on such terms and conditions (including price to be paid and conditionality) as are proposed by AbbVie and which are permitted by the terms of the applicable Indenture and applicable Laws, including SEC rules and regulations. AbbVie shall consult with Allergan regarding the material terms and conditions of any Allergan Note Offers and Consent Solicitations, including the timing and commencement of any Allergan Note Offers and Consent Solicitations and any tender deadlines. AbbVie shall have provided Allergan with the necessary offer to purchase, offer to exchange, consent solicitation statement, letter of transmittal, press release, if any, in connection therewith, and each other document relevant to the transaction that will be distributed by AbbVie in the applicable Allergan Note Offers and Consent Solicitations (collectively, the “Debt Offer Documents”) a reasonable period of time in advance of commencing the applicable Allergan Note Offers Credit Agreement Consent and Consent Solicitations to allow Allergan and its counsel to review and comment on such Debt Offer Documents, and AbbVie shall give reasonable and good faith consideration to any comments made or input provided by Allergan and its legal counsel. Subject to the receipt of the requisite holder consents, in connection with any or all of the Consent Solicitations, Allergan shall execute a supplemental indenture to the applicable Indenture in accordance with the terms thereof amending the terms and provisions of such Indenture as described in the applicable Debt Offer Documents in a form as reasonably requested by AbbVie (each, an “Allergan Supplemental IndentureAmendments”); provided that the amendments effected by such supplemental indenture shall not become operative until the Completion. Subject to the second paragraph of Section 7.9(a.
(b) above, until the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9 Allergan shall use its reasonable best effortsThe Company shall, and shall cause each of its Subsidiaries to and its and their respective directors, officers, agents, control persons, employees and Representatives to, use its reasonable best effortsefforts to commence (or, at Liberty’s election in its sole discretion, to cooperate reasonably with and assist Liberty and its respective Representatives in commencing) promptly following the date hereof (or on such other date as Liberty may reasonably request) the process of making a consent solicitation with respect to each of the 2021 Notes and the 0000 Xxxxxxxxx to obtain from the requisite holders of the 2021 Notes the agreements, consents and amendments on terms and conditions requested by Liberty (the “2021 Notes Consent Solicitation”) and further agrees that JPMorgan Securities Inc. or one of its affiliates may serve as sole lead solicitation agent for the 2021 Notes Consent Solicitation.
(c) The Company shall, and shall cause each of its Subsidiaries and its and their respective directors, officers, agents, control persons, employees, and Representatives to, use reasonable best efforts to commence (or, at Liberty’s election in its sole discretion, to cooperate reasonably with and assist Liberty and its Representatives in commencing) promptly following the date hereof (or on such other date as Liberty may reasonably request) the process of making a consent solicitation with respect to the 2025 Notes and the 0000 Xxxxxxxxx to obtain from the requisite holders of the 2025 Notes the agreements, consents and amendments on terms and conditions requested by Liberty (the “2025 Notes Consent Solicitation” and, together with the 2021 Notes Consent Solicitation, each a “Notes Consent Solicitation” and collectively, the “Notes Consent Solicitations”) and further agrees that JPMorgan Securities Inc. or one of its affiliates may serve as sole lead solicitation agent for the 2025 Notes Consent Solicitation.
(d) If, prior to the Auto Conversion Effective Time, Liberty determines in its sole discretion that any of the Credit Agreement Consent and Amendments will not be obtained and become effective, or any of the Notes Consent Solicitations will not be successful and the transactions solicited for consent therein will not become effective, in each case on or prior to the Auto Conversion Effective Time, the Company shall, and shall cause each of its Subsidiaries, and each of its and their respective Representatives to, use its reasonable best efforts to cause cooperate reasonably with and assist Liberty and its respective Representatives in connection with such further actions as the parties shall determine to take in connection with the Senior Credit Agreements, the 2021 Notes and 2021 Indenture and/or the 2025 Notes and 2025 Indenture.
(e) The Company shall not consummate the Bridge Financing on terms and conditions other than those described in the Bridge Commitment Letter. The Company shall not amend, modify, terminate, assign or agree to any waiver under the Bridge Commitment Letter (including to add lenders, arrangers, agents, bookrunners, managers and other financing sources) without the prior written consent of Liberty. Upon any such amendment, supplement or modification of the Bridge Commitment Letter in accordance with this Section 5.17, the term “Bridge Commitment Letter” shall mean the Bridge Commitment Letter as so amended, supplemented or modified. The Company shall provide Liberty with prompt notice of (1) any material breach or default by any party to any Bridge Commitment Letter or the definitive agreements with respect to the Bridge Financing (such agreements, the “Definitive Agreements”) which the Company becomes aware and (2) the receipt of any written notice or other written communication from any Lender with respect to any breach, default, termination or repudiation by any party to the Bridge Commitment Letter or the Definitive Agreements of any provision thereof. The Company shall keep Liberty reasonably informed on a reasonably current basis of the status of its efforts to consummate the Bridge Financing, including providing drafts of the Definitive Agreements negotiated in connection therewith, and providing Liberty with the opportunity to participate in discussions relating to such negotiations and provide input on the terms of such Definitive Agreements. Except as provided in Section 5.17(f), in no event shall the Company be deemed or construed to require Liberty to (I) pay any fees (whether to secure a waiver of any conditions contained therein or otherwise) or (II) commence, participate in, pursue or defend any legal proceeding against or involving the Lenders. Liberty and LI LLC and their respective directors, officers, agents, control person, employees and Representatives to use their reasonable best efforts, to provide all reasonable shall cooperate reasonably and customary cooperation as may be reasonably requested by AbbVie assist the Company in writing to assist AbbVie in connection with any Allergan Note Offers satisfying the terms and Consent Solicitations (including upon AbbVie’s written request, using reasonable best efforts to cause Allergan’s independent accountants to provide customary consents for use of their reports to the extent required in connection with any Allergan Note Offers and Consent Solicitations). The dealer manager, solicitation agent, information agent, depositary or other agent retained in connection with any Allergan Note Offers and Consent Solicitations will be selected and retained by AbbVie, and their fees and out-of-pocket expenses will be paid directly by AbbVie. If, at any time prior to the completion of the Allergan Note Offers and Consent Solicitations, Allergan or any of its Subsidiaries, on the one hand, or AbbVie or any of its Subsidiaries, on the other hand, discovers any information that should be set forth in an amendment or supplement to the Debt Offer Documents, so that the Debt Offer Documents shall not contain any untrue statement of a material fact or omit to state any material fact required conditions to be stated therein or necessary satisfied by the Company in order the Bridge Commitment Letter, including but not limited to make the statements therein, in light of circumstances under which they are made, not misleading, such party that discovers such information shall use reasonable best efforts (a) providing and (subject to promptly notify the other Party, and an appropriate amendment or supplement prepared by AbbVie describing such information shall be disseminated to the holders of the applicable notes, debentures or other debt securities of Allergan or its Subsidiaries outstanding under the applicable Indenture. The consummation of any or all of the Allergan Note Offers and Consent Solicitations shall not be a condition to Completion.customary non-
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Liberty Interactive Corp)
Cooperation as to Certain Indebtedness. AbbVie or one or more (a) At Parent’s direction, the Company shall, and shall cause each of its Subsidiaries Subsidiaries, and each of its and their respective directors, officers, agents, employees and Representatives to, use reasonable best efforts to commence promptly following the date hereof (or on such other date as Parent may (ireasonably request) commence any a solicitation of the following: (A) one or more offers to purchase any or all of the outstanding debt issued under the Indentures for cash a consent and amendment (the “Offers to PurchaseCredit Agreement Consent and Amendment”); or (B) one or more offers to exchange any or all of the outstanding debt issued under the Indentures for securities issued by AbbVie or any of its Affiliates (the “Offers to Exchange”); and (ii) solicit the consent of the holders of debt issued under the Indentures regarding certain proposed amendments to the applicable Indenture (Credit Agreement to be effective on the “Consent Solicitations” andEffective Time, together with the Offers to Purchase and Offers to Exchange, if any, the “Allergan Note Offers and Consent Solicitations”); provided that the closing of any such transaction shall not be consummated until the Completion and any such transaction shall be funded using consideration provided by AbbVie. Any Allergan Note Offers and Consent Solicitations shall be made on such terms and conditions (including price to be paid and conditionality) as are proposed requested by AbbVie and Parent, which are permitted shall include an agreement by the terms of requisite lenders thereunder that the applicable Indenture and applicable Lawstransactions contemplated by this Agreement, including SEC rules and regulations. AbbVie the Merger, will not result in a Change of Control (as defined in the Credit Agreement); provided that (i) Parent shall consult with Allergan the Company regarding the material terms and conditions of any Allergan Note Offers the Credit Agreement Consent and Consent SolicitationsAmendment, including the timing and commencement of any Allergan Note Offers the Credit Agreement Consent and Consent Solicitations Amendment and any tender deadlines. AbbVie shall have provided Allergan with the necessary offer to purchase, offer to exchange, consent solicitation statement, letter of transmittal, press release, if any, in connection therewith, and each other document relevant (ii) the closing of the Credit Agreement Consent and Amendment shall be expressly conditioned on the occurrence of the Effective Time.
(b) If, prior to the transaction Effective Time, Parent determines in its sole discretion that the Credit Agreement Consent and Amendment will not be distributed by AbbVie in obtained and become effective on the applicable Allergan Note Offers and Consent Solicitations (collectivelyEffective Time, the “Debt Offer Documents”) a reasonable period of time in advance of commencing the applicable Allergan Note Offers and Consent Solicitations to allow Allergan and its counsel to review and comment on such Debt Offer Documents, and AbbVie shall give reasonable and good faith consideration to any comments made or input provided by Allergan and its legal counsel. Subject to the receipt of the requisite holder consents, in connection with any or all of the Consent Solicitations, Allergan shall execute a supplemental indenture to the applicable Indenture in accordance with the terms thereof amending the terms and provisions of such Indenture as described in the applicable Debt Offer Documents in a form as reasonably requested by AbbVie (each, an “Allergan Supplemental Indenture”); provided that the amendments effected by such supplemental indenture shall not become operative until the Completion. Subject to the second paragraph of Section 7.9(a) above, until the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9 Allergan shall use its reasonable best effortsCompany shall, and shall cause each of its Subsidiaries to Subsidiaries, and each of its and their respective directors, officers, agents, employees and Representatives to, use its their reasonable best effortsefforts to:
(i) on or prior to the Effective Time, (A) repay in full (or in the case of any letters of credit issued thereunder, provide cash collateral in an amount not less than the amount required under the Credit Agreement) all Obligations (as defined in the Credit Agreement) then outstanding, (B) cause the release of any and all Liens (as defined in the Credit Agreement) created or granted under any Credit Document (as defined in the Credit Agreement) or otherwise in favor of the administrative agent, collateral agent or any holder of the Guaranteed Obligations (as defined in the Credit Agreement) as security for such Guaranteed Obligation, and (C) terminate the Credit Agreement, each other Credit Document and each Swap Contract (as defined in the Credit Agreement) (other than Swap Contracts as to which arrangements reasonably satisfactory to Parent have been made with the swap counterparty) (such repayments and terminations, the “Credit Agreement Terminations”), including obtaining a customary payoff letter in form and substance reasonably satisfactory to Parent from the agent under the Credit Agreement (the “Payoff Letter”); it being understood that (1) Parent and the Company shall use its their reasonable best efforts to effect the Credit Agreement Termination using funds available pursuant to the Senior Secured Credit Financing; provided, that, to the extent the Senior Secured Credit Financing is not available as a source of funding, Parent shall cause the funds required to effect the Credit Agreement Termination to be made available at the closing; and (2) none of the receipt of the Payoff Letter, the consummation of the Credit Agreement Termination, or of any other financing termination or the release of any Lien, shall be a condition to any of the obligations of Parent or Merger Sub hereunder; and
(ii) at Parent’s election, cooperate reasonably with and assist Parent, and each of its Subsidiaries, and each of its and their respective Representatives directors, officers, agents, employees and Representatives, in connection with new financing arrangements satisfactory to use their Parent (the “Senior Secured Credit Financing”), including (A) participating in a reasonable best effortsnumber of meetings, to provide presentations, due diligence sessions, drafting sessions, road shows and sessions with ratings agencies on reasonable advance notice, (B) furnishing all reasonable customary financial and customary cooperation other information regarding the Company and its Subsidiaries as may be reasonably requested by AbbVie in writing to assist AbbVie in connection with any Allergan Note Offers and Consent Solicitations Parent (including upon AbbViepro forma financial statements) as promptly as reasonably practicable, (C) assisting in a reasonable manner with the preparation of materials for rating agency presentations, offering documents, private placement memoranda, information memoranda and packages and similar documents for the Senior Secured Credit Financing and executing customary authorization and management representation letters (including, in the case of a public side version of an information memorandum, a representation to the arranger of the Senior Secured Credit Financing that such public side version does not include material nonpublic information about the Company and its Subsidiaries), in each case, to the extent reasonably necessary for the consummation of the Senior Secured Credit Financing, (D) taking all corporate actions reasonably requested by Parent that are necessary or customary to permit the consummation of the Senior Secured Credit Financing, (E) cooperating reasonably in respect of the preparation of and, if applicable, executing and delivering any underwriting or placement agreements, pledge and security documents, hedging agreements (if required) and other definitive financing documents relating to the Senior Secured Credit Financing, (F) using its reasonable best efforts to obtain, in each case, to the extent necessary for the consummation of the Senior Secured Credit Financing, customary accountants’ comfort letters, consents, surveys and appraisals, engineering reports, environmental and other inspections, title insurance and other documentation and items relating to the Senior Secured Credit Financing and collateral arrangements, as reasonably requested by Parent, (G) executing and delivering any customary and reasonable officer’s written requestcertificates, customary closing documents, or other certificates or documents with respect to the Senior Secured Credit Financing, in each case, as may be reasonably requested by Parent, in each case, to the extent necessary for the consummation of the Senior Secured Credit Financing, (H) using reasonable best efforts to cause Allerganfacilitate the pledging of collateral for the Senior Secured Credit Financing, including taking commercially reasonable actions necessary to permit the sources of the Senior Secured Credit Financing to evaluate the Company’s independent accountants and its Subsidiaries’ real property and current assets, cash management and accounting systems, policies and procedures for the purpose of establishing collateral arrangements in connection with the Senior Secured Credit Financing and (I) assisting Parent in obtaining ratings in connection with the Senior Secured Credit Financing; provided that (1) in no event shall the receipt or availability of any funds or financing pursuant to provide customary the Senior Secured Credit Financing by or to Parent or any of its Affiliates or any other financing transaction be a condition to any of Parent’s or Merger Sub’s obligations hereunder and (2) none of the Company or any of its Subsidiaries shall be required to execute any definitive documentation pertaining to the Senior Secured Credit Facility until the Effective Time has occurred.
(c) The Company and its directors, officers, agents, employees and Representatives shall be given a reasonable opportunity to review and comment on any financing documents and any materials that are to be presented during any meetings conducted in connection with the Senior Secured Credit Financing. Parent and Merger Sub acknowledge and agree that the Company and each of its Subsidiaries and each of its and their respective directors, officers, agents, employees and Representatives shall not have any responsibility for, or incur any liability to any Person in connection with, the arrangement of the Senior Secured Credit Financing other than with respect to the Financing Fees, which shall be payable by the Company as incurred and reimbursable to the Company as set forth in Section 5.16(f).
(d) The Company hereby consents for to the use of their reports its logos in connection with the Senior Secured Credit Financing; provided that such logos are used solely in a manner that would not reasonably be expected to harm the Company or any of its Subsidiaries or the reputation or goodwill of the Company or any of its Subsidiaries.
(e) Parent will indemnify and hold harmless the directors, officers, personnel and advisors of the Company and its Subsidiaries against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred in connection with the activities contemplated by this Section 5.16, including the Credit Agreement Consent and Amendment, the Credit Agreement Terminations, the Payoff Letter and the Senior Secured Credit Financing, or any assistance or activities in connection therewith, except (i) to the extent required in connection with arising from the willful misconduct, gross negligence, fraud or intentional misrepresentation of the Company or its Subsidiaries and any Allergan Note Offers of their respective directors, officers, personnel and Consent Solicitations). The dealer manager, solicitation agent, information agent, depositary or other agent retained in connection with any Allergan Note Offers and Consent Solicitations will be selected and retained by AbbVieadvisors, and their fees and out-of-pocket expenses will be paid directly (ii) for Financing Fees incurred by AbbVie. If, at any time prior to the completion of the Allergan Note Offers and Consent Solicitations, Allergan Company or any of its Subsidiaries, on which shall be reimbursed only in the one handcircumstances described in Section 5.16(f).
(f) The Company will pay all fees and expenses of the Company and its Subsidiaries in connection with the Credit Agreement Consent and Amendment, the Credit Agreement Terminations, the Payoff Letter, the Senior Secured Credit Financing and any other matters contemplated by this Section 5.16 (including fees and expenses of legal counsel and advisors and any applicable indemnification obligations of the Company) (collectively, the “Financing Fees”) when such fees and expenses are due and payable; provided, however, that in the event this Agreement is terminated prior to the Effective Time pursuant to:
(i) Section 7.1(a), 7.1(b)(i), or AbbVie or any 7.1(b)(ii) then Parent shall reimburse the Company fifty percent (50%) of its Subsidiaries, on the other hand, discovers any information that should be set forth in an amendment or supplement to the Debt Offer Documents, so that the Debt Offer Documents shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of circumstances under which they are made, not misleading, such party that discovers such information shall use reasonable best efforts to promptly notify the other PartyFinancing Fees;
(ii) Section 7.1(b)(iii) (if, and an appropriate amendment only if, the Company has not made a Company Adverse Recommendation Change prior to such termination pursuant to Section 7.1(b)(iii)) or supplement prepared by AbbVie describing such information 7.1(c)(ii), then Parent shall be disseminated to reimburse the holders Company one hundred percent (100%) of the applicable notesFinancing Fees; or
(iii) Section 7.1(b)(iii) (if, debentures and only if, the Company has made a Company Adverse Recommendation change prior to such termination pursuant Section 7.1(b)(iii)), 7.1(c)(i), 7.1(d)(i) or other debt securities of Allergan or its Subsidiaries outstanding under the applicable Indenture. The consummation of any or all of the Allergan Note Offers and Consent Solicitations 7.1(d)(ii), then Parent shall not be a condition required to Completionreimburse the Company any portion of the Financing Fees.
Appears in 1 contract
Cooperation as to Certain Indebtedness. AbbVie (a) Broadcom or one or more of its Subsidiaries may, or may direct the Company to (in which case the Company shall), (i) commence any of the following: (A) one or more offers to purchase any or all notes issued by the Company or any Company Subsidiary (including, if the acquisition of Nautilus has been consummated, Nautilus and its Subsidiaries) (the outstanding debt issued under the Indentures “Company Notes”) for cash (the “Offers to Purchase”); or ) and/or (B) one or more offers to exchange any or all of the outstanding debt issued under the Indentures Company Notes for securities issued by AbbVie Broadcom (or any of its Affiliates affiliates) (the “Offers to Exchange”), in each case on terms and conditions determined by Broadcom in its sole and absolute discretion; provided that the consummation of any such Offers to Purchase or Offers to Exchange shall only become effective substantially concurrently with the Closing and shall be funded at such time using consideration provided by Broadcom or its affiliates; or (ii) commence one or more consent solicitations to solicit the consent of the holders of debt issued under the Indentures any Company Notes regarding certain proposed amendments to the applicable Indenture indentures governing any Company Notes as requested by Broadcom (the “Consent Solicitations” and, together with the Offers to Purchase and Offers to Exchange, if any, the “Allergan Company Note Offers and Consent Solicitations”); provided that the closing of any such transaction shall not be consummated until the Completion and any such transaction shall be funded using consideration provided by AbbVie. Any Allergan Company Note Offers and Consent Solicitations shall be made on such terms and conditions (including price to be paid and conditionality) as are proposed by AbbVie Broadcom in its sole and which are permitted by absolute discretion; provided that, in any event, Broadcom and the Company hereby agree that (x) any such Company Note Offers and Consent Solicitations shall comply with applicable Law and the terms of any indenture governing Company Notes, (y) the applicable Indenture and applicable Laws, including SEC rules and regulations. AbbVie shall consult with Allergan regarding the material terms and conditions of any Allergan Note Offers and Consent Solicitations, including the timing and commencement of any Allergan Company Note Offers and Consent Solicitations and any tender deadlines. AbbVie shall have provided Allergan provide that the closing thereof or the effectiveness of the substantive provisions thereof, as the case may be, shall be contingent upon, or shall only become operative, substantially concurrently with the necessary offer to purchase, offer to exchange, consent solicitation statement, letter of transmittal, press release, if any, in connection therewithClosing, and each other document relevant (z) assuming the requisite consents have been received with respect to the transaction that will be distributed by AbbVie in the applicable Allergan Note Offers and Consent Solicitations (collectivelyCompany Notes, the “Debt Offer Documents”) a reasonable period of time in advance of commencing the applicable Allergan Note Offers and Consent Solicitations to allow Allergan and its counsel to review and comment on such Debt Offer Documents, and AbbVie shall give reasonable and good faith consideration to any comments made or input provided by Allergan and its legal counsel. Subject to the receipt of the requisite holder consents, in connection with any or all of the Consent Solicitations, Allergan Company shall execute (or cause to be executed) a supplemental indenture to the applicable Indenture in accordance with indenture governing the Company Notes reflecting the terms thereof amending the terms and provisions of such Indenture as described in the applicable Debt Offer Documents in a form as reasonably requested by AbbVie (each, an “Allergan Supplemental Indenture”); provided that the amendments effected by such supplemental indenture shall not become operative until the Completion. Subject to the second paragraph of Section 7.9(a) above, until the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9 Allergan shall use its reasonable best efforts, and shall cause each of its Subsidiaries to use its reasonable best efforts, Consent Solicitation and shall use its commercially reasonable best efforts to cause its and their respective Representatives the trustee under such indenture to use their reasonable best effortsenter into such supplemental indenture; provided, to provide all reasonable and customary cooperation as may be reasonably requested by AbbVie in writing to assist AbbVie in connection that the substantive provisions thereof shall only become operative substantially concurrently with any Allergan Note Offers and Consent Solicitations (including upon AbbVie’s written request, using reasonable best efforts to cause Allergan’s independent accountants to provide customary consents for use of their reports to the extent required in connection with any Allergan Note Offers and Consent Solicitations)Closing. The dealer manager, solicitation agent, information agent, depositary or other agent retained in connection with any Allergan Note Offers and Consent Solicitations will be selected and retained by AbbVie, and their fees and out-of-pocket expenses will be paid directly by AbbVie. If, If at any time prior to the completion of the Allergan Company Note Offers and Consent Solicitations, Allergan or any of its Subsidiaries, on the one hand, or AbbVie or any of its Subsidiaries, on the other hand, discovers any information should be discovered by the Company or Broadcom that either the Company or Broadcom reasonably believes should be set forth in an amendment or supplement to the Debt Offer Documentsdocumentation relating thereto, so that the Debt Offer Documents such documentation shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of circumstances under which they are made, not misleading, such party the Party that discovers such information shall use reasonable best efforts to promptly notify the other Party, and an appropriate amendment or supplement prepared by AbbVie Broadcom (or at the direction of Broadcom, the Company) describing such information shall be disseminated to the holders of the applicable notesCompany Notes (which amendment or supplement and dissemination may, debentures at the reasonable direction of Broadcom, take the form of the furnishing or other debt securities filing of Allergan a Current Report on Form 8-K). Concurrent with the Closing, and in accordance with the terms of any Offer to Purchase or its Subsidiaries outstanding under Offer to Exchange, the Company shall accept for purchase or exchange and purchase or exchange the applicable Indenture. The consummation of Company Notes properly tendered and not properly withdrawn in any Offer to Purchase or all of the Allergan Note Offers and Consent Solicitations shall not be a condition to Completion.Offer
Appears in 1 contract
Samples: Agreement and Plan of Merger (Broadcom Cayman L.P.)
Cooperation as to Certain Indebtedness. AbbVie or one or more of its Subsidiaries may (ia) commence any of the following: (A) one or more offers to purchase any or all of the outstanding debt issued under the Indentures for cash (the “Offers to Purchase”); or (B) one or more offers to exchange any or all of the outstanding debt issued under the Indentures for securities issued by AbbVie or any of its Affiliates (the “Offers to Exchange”); and (ii) solicit the consent of the holders of debt issued under the Indentures regarding certain proposed amendments to the applicable Indenture (the “Consent Solicitations” and, together with the Offers to Purchase and Offers to Exchange, if any, the “Allergan Note Offers and Consent Solicitations”); provided that the closing of any such transaction shall not be consummated until the Completion and any such transaction shall be funded using consideration provided by AbbVie. Any Allergan Note Offers and Consent Solicitations shall be made on such terms and conditions (including price to be paid and conditionality) as are proposed by AbbVie and which are permitted by the terms of the applicable Indenture and applicable Laws, including SEC rules and regulations. AbbVie shall consult with Allergan regarding the material terms and conditions of any Allergan Note Offers and Consent Solicitations, including the timing and commencement of any Allergan Note Offers and Consent Solicitations and any tender deadlines. AbbVie shall have provided Allergan with the necessary offer to purchase, offer to exchange, consent solicitation statement, letter of transmittal, press release, if any, in connection therewith, and each other document relevant to the transaction that will be distributed by AbbVie in the applicable Allergan Note Offers and Consent Solicitations (collectively, the “Debt Offer Documents”) a reasonable period of time in advance of commencing the applicable Allergan Note Offers and Consent Solicitations to allow Allergan and its counsel to review and comment on such Debt Offer Documents, and AbbVie shall give reasonable and good faith consideration to any comments made or input provided by Allergan and its legal counsel. Subject to the receipt of the requisite holder consents, in connection with any or all of the Consent Solicitations, Allergan shall execute a supplemental indenture to the applicable Indenture in accordance with the terms thereof amending the terms and provisions of such Indenture as described in the applicable Debt Offer Documents in a form as reasonably requested by AbbVie (each, an “Allergan Supplemental Indenture”); provided that the amendments effected by such supplemental indenture shall not become operative until the Completion. Subject to the second paragraph of Section 7.9(a) above, until the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9 Allergan shall use its reasonable best effortsThe Company shall, and shall cause each of its Subsidiaries to use its reasonable best efforts, and shall use its reasonable best efforts to cause its and their respective Representatives to, provide customary and commercially reasonable cooperation to use their reasonable best effortsthe extent reasonably requested by Parent in connection with such financing arrangements (including assumptions, guarantees, amendments, supplements, modifications, refinancings, replacements, repayments, terminations or prepayments of the Company Debt Agreements) as Parent may reasonably determine necessary or advisable in connection with the consummation of the Merger or the other Transactions; provided that no authorizations, arrangements, assumptions, guarantees, amendments, supplements, modifications, refinancings, replacements, repayments, terminations, prepayments or other transactions, filings, recordings, documents or certificates entered into or delivered pursuant to provide this Section 5.14 shall be effective prior to the Closing, other than any customary notices required to be given in advance of such time in order for any such financing arrangements or documents to be effective at or immediately prior to the Closing, but solely to the extent such notices are expressly conditioned on the occurrence of the Closing and subject to revocation in the event the Closing does not occur as originally contemplated by such notice (to the extent such conditionality or revocability is not prohibited by the terms governing the delivery of such notice, including the documentation governing the Company Debt Agreements). Parent shall promptly, upon request by the Company, and at Parent’s sole cost and expense reimburse the Company for all reasonable and customary cooperation as may be reasonably requested by AbbVie in writing to assist AbbVie in connection with any Allergan Note Offers and Consent Solicitations (including upon AbbVie’s written request, using reasonable best efforts to cause Allergan’s independent accountants to provide customary consents for use of their reports to the extent required in connection with any Allergan Note Offers and Consent Solicitations). The dealer manager, solicitation agent, information agent, depositary or other agent retained in connection with any Allergan Note Offers and Consent Solicitations will be selected and retained by AbbVie, and their fees and documented out-of-pocket costs and expenses will be paid directly (including reasonable and documented out-of-pocket attorneys’ fees) incurred by AbbVie. If, at any time prior to the completion of the Allergan Note Offers and Consent Solicitations, Allergan Company or any of its SubsidiariesSubsidiaries in connection with fulfilling its obligations under this Section 5.14 and indemnify and hold harmless the Company, on its Subsidiaries and its or their respective affiliates, and their respective directors, managers, officers, and other Representatives, against any and all liabilities incurred by them in connection with the one handfinancing arrangements under this Section 5.14, except to the extent such liabilities have actually and directly arisen from the willful misconduct or AbbVie gross negligence of the Company or its Subsidiaries as determined in a final, non-appealable judgment of a court of competent jurisdiction.
(b) Notwithstanding anything to the contrary in this Section 5.14, neither the Company nor any of its Subsidiaries shall be required to (i) agree to pay any commitment or other similar fee, bear any cost or expense, incur any other liability or give any indemnities or guarantees to any third party or otherwise to take any similar action in connection with any financing arrangements under this Section 5.14 prior to the Closing, (ii) take any actions to the extent such actions would, in such party’s reasonable judgment, cause (w) any representation or warranty made by such party hereunder to be inaccurate or breached, (x) the failure of any closing condition set forth in Article VI to be satisfied or any material delay in the satisfaction of any such condition, (y) any unreasonable interference with the businesses of the Company or any of its Subsidiaries or any ongoing operations of the Company or its Subsidiaries, on in each case, as applicable, or (z) any other breach of this Agreement, (iii) enter into (or terminate, extend, amend, replace or otherwise modify or alter) any financing arrangement pursuant to this Section 5.14 that is not conditioned upon the consummation of the Merger or that may be effective before Closing, (iv) adopt resolutions or implement other handauthorizations approving any financing arrangement pursuant to this Section 5.14 or pledge any collateral with respect to such financing arrangement or otherwise encumber its assets prior to Closing, discovers (v) disclose any information that should be set forth in an amendment or supplement pursuant to this Section 5.14 to the Debt Offer Documentsextent that such disclosure would be reasonably likely to (A) risk the loss of or waive any attorney-client, so work-product or legal privilege (provided that the Debt Offer Documents Company shall use commercially reasonable efforts to allow for such disclosure to the maximum extent possible in a manner that does not contain result in a loss or waiver of attorney-client or other legal privilege or protection), (B) risk the loss or disclosure of any untrue statement trade secret, (C) be in violation of applicable Law (provided that the Company shall use commercially reasonable efforts to allow for such disclosure to the maximum extent possible in a material fact manner that does not result in such violation of applicable Law), or omit (D) contravene the provisions of any then-effective Contract to state which the Company or any material fact of its Subsidiaries is a party (provided that the Company shall use commercially reasonable efforts to allow for such disclosure to the maximum extent possible in a manner that does not result in such contravention or, to the extent necessary to allow for such disclosure, obtain the required consent to be stated therein or necessary provide such disclosure, except that the Company shall have no obligation to pay any fee to a third party in order to make the statements thereinobtain any such required consent), (vi) result in light of circumstances under which they are made, not misleading, such party that discovers such information shall use reasonable best efforts to promptly notify the other Party, and an appropriate amendment any officer or supplement prepared by AbbVie describing such information shall be disseminated to the holders director of the applicable notes, debentures or other debt securities of Allergan Company or its Subsidiaries outstanding incurring any personal liability with respect to any financing arrangement under this Section 5.14, or (vii) require the applicable Indenture. Company or its Subsidiaries or any of their respective Representatives to prepare or provide (and Parent shall be solely responsible for) pro forma information, including pro forma cost savings, synergies, capitalization or other pro forma adjustments desired to be included in any pro forma information in connection with any financing.
(c) The parties hereto acknowledge and agree that the consummation of any or all of the Allergan Note Offers and Consent Solicitations shall financing arrangements under this Section 5.14 is not be a condition to CompletionClosing.
Appears in 1 contract
Samples: Merger Agreement (Consolidated Communications Holdings, Inc.)
Cooperation as to Certain Indebtedness. AbbVie (a) Parent or one or more of its Subsidiaries may (i) commence any of the following: (A) one or more offers to purchase any or all of the outstanding debt issued under the Indentures Company Notes for cash (the “Offers to Purchase”); or (B) one or more offers to exchange any or all of the outstanding debt issued under the Indentures Company Notes for securities issued by AbbVie Parent (or any of its Affiliates Affiliates) (the “Offers to Exchange”); and (ii) solicit the consent of the holders of debt issued under the Indentures Company Notes regarding certain proposed amendments to the applicable Indenture indenture governing such Company Notes (the “Consent Solicitations” and, together with the Offers to Purchase and Offers to Exchange, if any, the “Allergan Company Note Offers and Consent Solicitations”); provided that the closing of any such transaction shall not be consummated until the Completion Closing and any such transaction shall be funded using consideration provided by AbbVieParent. Any Allergan Company Note Offers and Consent Solicitations shall be made on such terms and conditions (including price to be paid and conditionality) as are proposed by AbbVie Parent and which are permitted by the terms of such Company Notes, the applicable Indenture indenture governing such Company Notes (each, an “Indenture”) and applicable Laws, including SEC rules and regulations. AbbVie Parent shall consult with Allergan the Company regarding the material terms and conditions of any Allergan Company Note Offers and Consent Solicitations, including the timing and commencement of any Allergan Company Note Offers and Consent Solicitations and any tender deadlines. AbbVie Parent shall not be permitted to commence any Company Note Offers and Consent Solicitations until Parent shall have provided Allergan the Company with the necessary offer to purchase, offer to exchange, consent solicitation statement, letter of transmittal, press release, if any, in connection therewith, and each other document relevant to the transaction that will be distributed by AbbVie the Parent to holders of the Company Notes in the applicable Allergan Company Note Offers and Consent Solicitations (collectively, the “Debt Offer Documents”) a reasonable period of time in advance of commencing the applicable Allergan Company Note Offers and Consent Solicitations to allow Allergan the Company and its counsel to review and comment on such Debt Offer Documents, . The closing of the Company Note Offers and AbbVie Consent Solicitations shall give reasonable and good faith consideration to any comments made or input provided by Allergan and its legal counselbe expressly conditioned on the occurrence of the Closing. Subject to the receipt of the requisite holder consents, in connection with any or all of the Consent Solicitations, Allergan the Company shall execute a supplemental indenture to the applicable Indenture in accordance with the terms thereof amending the terms and provisions of such Indenture as described in the applicable Debt Offer Documents in a form as reasonably requested by AbbVie (eachParent, an “Allergan Supplemental Indenture”); provided that the amendments effected by such which supplemental indenture shall not become operative effective until Closing; provided, however, that in no event shall the CompletionCompany or any of its Subsidiaries have any obligation to authorize, adopt or execute any amendments or other agreement that would become effective prior to Closing. Subject to Section 8.04(e) and Section 8.04(f), at Parent’s expense, the second paragraph of Section 7.9(a) above, until the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9 Allergan shall use its reasonable best effortsCompany shall, and shall cause each of its Subsidiaries to use its reasonable best effortsto, and shall use its reasonable best efforts to cause its and their respective Representatives to to, use their reasonable best efforts, efforts to provide all reasonable and customary cooperation as may be reasonably requested by AbbVie in writing Parent to assist AbbVie Parent in connection with any Allergan Company Note Offers and Consent Solicitations (including upon AbbVie’s written requestbut not limited to requesting, and using reasonable best efforts to cause Allergancause, the Company’s independent accountants to provide customary consents for use of their reports to the extent required in connection with any Allergan Company Note Offers and Consent Solicitations); provided that prior to the Closing, neither the Company nor counsel for the Company shall be required to furnish any certificates, legal opinions or negative assurance letters in connection with any Company Note Offers and Consent Solicitations (other than, in connection with the execution of the supplemental indentures relating to the Consent Solicitations, the Company delivering and using reasonable best efforts to cause counsel for the Company to deliver, customary officer’s certificates and customary legal opinions, respectively, to the trustee under the applicable Indenture, to the extent such certificates and opinions would not conflict with applicable Laws and would be accurate in light of the facts and circumstances at the time delivered) or execute any other instruments or agreements in connection therewith other than the supplemental indenture described in the immediately preceding sentence. The dealer manager, solicitation agent, information agent, depositary or other agent retained in connection with any Allergan Company Note Offers and Consent Solicitations will be selected and retained by AbbVie, Parent after consultation with the Company and their fees and out-of-pocket expenses will be paid directly by AbbVie. If, at any time prior to the completion of the Allergan Note Offers and Consent Solicitations, Allergan or any of its Subsidiaries, on the one hand, or AbbVie or any of its Subsidiaries, on the other hand, discovers any information that should be set forth in an amendment or supplement to the Debt Offer Documents, so that the Debt Offer Documents shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of circumstances under which they are made, not misleading, such party that discovers such information shall use reasonable best efforts to promptly notify the other Party, and an appropriate amendment or supplement prepared by AbbVie describing such information shall be disseminated to the holders of the applicable notes, debentures or other debt securities of Allergan or its Subsidiaries outstanding under the applicable IndentureParent. The consummation of any or all of the Allergan Company Note Offers and Consent Solicitations shall not be a condition to CompletionClosing.
(b) Subject to Section 8.04(e) and Section 8.04(f), if requested by Parent in writing, the Company shall, to the extent permitted by the applicable Company Notes and the related Indenture, issue on the Closing Date a notice of optional redemption for all of the outstanding aggregate principal amount of any or all of the Company Notes (other than the 1996 Notes), pursuant to the redemption provisions of the Indenture (the redemption of any or all series of Company Notes (other than the 1996 Notes), the “Redemption”); provided that the Company shall not be obligated to issue a notice of optional redemption pursuant to this Section 8.11(b) until (i) all of the conditions set forth in Section 9.01, Section 9.02 and Section 9.03 have been satisfied or waived by the applicable Persons and (ii) the Closing will occur immediately following the delivery of such notice; and provided further that in connection with the delivery of any such notice of Redemption, the Company shall deliver and shall use reasonable best efforts to cause counsel for the Company to deliver, customary officer’s certificates and customary legal opinions, respectively, to the trustee under the applicable Indenture, to the extent such certificates and opinions are required thereby, would not conflict with applicable Laws and would be accurate in light of the facts and circumstances at the time delivered.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Becton Dickinson & Co)
Cooperation as to Certain Indebtedness. AbbVie (a) Parent or one or more of its Subsidiaries may (i) commence any of the following: (A) one or more offers to purchase any or and all of the outstanding debt issued under the Indentures Company Notes for cash (the “Offers to Purchase”); or (B) one or more offers to exchange any or and all of the outstanding debt issued under the Indentures Company Notes for securities issued by AbbVie Parent (or any of its Affiliates Affiliates) (the “Offers to Exchange”), in each case on terms and conditions determined by Parent in its sole and absolute discretion; provided the consummation of any such transaction shall not become effective until immediately prior to Closing and shall be funded using consideration provided by Parent; and (ii) solicit the consent of the holders of debt issued under the Indentures Company Notes regarding certain proposed amendments to the applicable Indenture indenture governing such Company Notes as requested by Parent (the “Consent Solicitations” and, together with the Offers to Purchase and Offers to Exchange, if any, the “Allergan Company Note Offers and Consent Solicitations”); provided that the closing of any such transaction shall not be consummated until the Completion and any such transaction shall be funded using consideration provided by AbbVie. Any Allergan Company Note Offers and Consent Solicitations shall be made on such terms and conditions (including price to be paid and conditionality) as are proposed by AbbVie Parent in its sole and which are permitted by absolute discretion; provided that, in any event, Parent and the Company hereby agree that (x) any such Company Note Offers and Consent Solicitations shall comply with applicable law and the terms of any indenture governing the applicable Indenture and applicable LawsCompany Notes, including SEC rules and regulations. AbbVie shall consult with Allergan regarding (y) the material terms and conditions of any Allergan Note Offers and Consent Solicitations, including the timing and commencement of any Allergan Note Offers and Consent Solicitations and any tender deadlines. AbbVie shall have provided Allergan with the necessary offer to purchase, offer to exchange, consent solicitation statement, letter of transmittal, press release, if any, in connection therewith, and each other document relevant to the transaction that will be distributed by AbbVie in the applicable Allergan Company Note Offers and Consent Solicitations (collectivelyother than a Consent Solicitation seeking the elimination, waiver or amendment of the change of control provisions undertaken independently of an Offer to Purchase or Offer to Exchange) shall provide that the closing thereof or the effectiveness of the substantive provisions thereof, as the case may be, shall be contingent upon, or not become operative until immediately prior to, the “Debt Offer Documents”) a reasonable period of time in advance of commencing the applicable Allergan Note Offers and Consent Solicitations to allow Allergan and its counsel to review and comment on such Debt Offer DocumentsClosing, and AbbVie shall give reasonable and good faith consideration to (z) promptly upon expiration of any comments made or input provided by Allergan and its legal counsel. Subject Consent Solicitation, assuming the requisite consents have been received with respect to the receipt of Company Notes, the requisite holder consents, in connection with any or all of the Consent Solicitations, Allergan Company shall execute (or cause to be executed) a supplemental indenture to the applicable Indenture indenture governing the Company Notes reflecting the terms of such Consent Solicitation and shall use commercially reasonable efforts to cause the trustee under such indenture to enter into such supplemental indenture; provided that (other than a Consent Solicitation seeking the elimination, waiver or amendment of the change of control provisions undertaken independently of an Offer to Purchase or Offer to Exchange) the substantive provisions thereof will not become operative until immediately prior to the Closing. Concurrent with the Closing, and in accordance with the terms thereof amending of any Offer to Purchase or Offer to Exchange, the terms Company shall accept for purchase or exchange and provisions purchase or exchange the Company Notes properly tendered and not properly withdrawn in any Offer to Purchase or Offer to Exchange using consideration provided by or at the direction of such Indenture as described Parent. Concurrent with the expiration of any Consent Solicitation in the applicable Debt Offer Documents in a form as reasonably requested by AbbVie (eachwhich requisite consents have been achieved, an “Allergan Supplemental Indenture”); provided that the amendments effected by such supplemental indenture shall not become operative until the Completion. Subject to the second paragraph of Section 7.9(a) above, until the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9 Allergan the terms of such Consent Solicitation, the Company shall use its reasonable best efforts, pay any consent fee to the holder of each Company Note approving the amendments to the indenture contemplated by such Consent Solicitation using consideration provided by or at the direction of Parent. Parent hereby covenants and shall cause each of its Subsidiaries to use its reasonable best efforts, and shall use its reasonable best efforts to cause its and their respective Representatives to use their reasonable best efforts, agrees to provide (or cause to be provided) immediately available funds to the Company for the full payment of the above amounts at the applicable times. At Parent’s expense, the Company shall provide all reasonable and customary cooperation as may be reasonably requested by AbbVie in writing to assist AbbVie in connection with any Allergan Note Offers Parent and Consent Solicitations (including upon AbbVie’s written request, using reasonable best efforts to cause Allergan’s independent accountants to provide customary consents for use of their reports to the extent its Affiliates that is necessary or reasonably required in connection with any Allergan Company Note Offers and Consent Solicitations). The dealer manager, solicitation agent, information agent, depositary or other agent retained in connection with any Allergan Note Offers and Consent Solicitations will be selected and retained by AbbVie, and their fees and out-of-pocket expenses will be paid directly by AbbVie. If, at any time prior to the completion of the Allergan Note Offers and Consent Solicitations, Allergan or any of its Subsidiaries, on the one hand, or AbbVie or any of its Subsidiaries, on the other hand, discovers any information that should be set forth in an amendment or supplement to the Debt Offer Documents, so that the Debt Offer Documents shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of circumstances under which they are made, not misleading, such party that discovers such information shall use reasonable best efforts to promptly notify the other Party, and an appropriate amendment or supplement prepared by AbbVie describing such information shall be disseminated to the holders of the applicable notes, debentures or other debt securities of Allergan or its Subsidiaries outstanding under the applicable Indenture. The consummation of any or all of the Allergan Note Offers and Consent Solicitations shall not be a condition to Completion.
Appears in 1 contract
Samples: Merger Agreement (Lions Gate Entertainment Corp /Cn/)
Cooperation as to Certain Indebtedness. AbbVie (a) Parent or one or more of its Subsidiaries may (ia) commence any of the following: (A) and conduct one or more offers to purchase purchase, including any offer required to be made in connection with any “Change of Control” or equivalent term (each as defined in the applicable Indenture governing each series of Existing Company Notes), tender offers or exchange offers with respect to any or all of the outstanding debt issued under aggregate principal amount of the Indentures for cash Existing Company Notes identified by Parent to the Company prior to, on or after the date hereof on terms that are acceptable to Parent (the “Offers to Purchase”); or ) and/or (B) one or more offers to exchange any or all of the outstanding debt issued under the Indentures for securities issued by AbbVie or any of its Affiliates (the “Offers to Exchange”); and (iib) solicit the consent of the holders of debt issued under the Indentures regarding certain proposed amendments to the applicable Indenture (the “Consent Solicitations” and, together with the Offers to Purchase and Offers to ExchangePurchase, if any, the “Allergan Company Note Offers and Consent Solicitations”); provided that the closing of any such transaction Offers to Purchase shall not occur, and the amendments in connection with any such Consent Solicitations shall not become operative (although any supplemental indentures entered into in connection with any such Consent Solicitations may become effective upon execution), prior to the Closing; provided, further, that the consummation of any Company Note Offers and Consent Solicitations shall not be consummated until a condition to the Completion and any such transaction shall be funded using consideration provided by AbbVieClosing. Any Allergan Company Note Offers and Consent Solicitations shall be made on such terms and conditions (including price to be paid and conditionality) as are proposed by AbbVie Parent and which are permitted by the terms of the applicable Indenture and applicable Laws, including applicable SEC rules and regulations. AbbVie shall Parent will reasonably consult with Allergan the Company regarding the material terms and conditions of any Allergan Company Note Offers and Consent Solicitations, including the timing and commencement of any Allergan Company Note Offers and Consent Solicitations and any relevant tender or consent deadlines. AbbVie Parent shall not be permitted to commence any applicable Company Note Offers and Consent Solicitations until Parent shall have provided Allergan the Company with the necessary related offer to purchase, offer to exchange, consent solicitation statement, letter of transmittal, if any, or press release, if any, in connection therewith, and each other material document relevant to the transaction that will be distributed by AbbVie the Parent in the applicable Allergan Company Note Offers and Consent Solicitations (collectively, the “Debt Offer Documents”) a reasonable period of time in advance of Parent commencing the applicable Allergan Note Offers and Offer to Purchase or Consent Solicitations Solicitation to allow Allergan the Company and its counsel to review and comment on such Debt Offer Documents, and AbbVie Parent shall give reasonable and good faith consideration to any comments made or input provided by Allergan the Company and its legal counsel. Subject to the receipt of the requisite holder consents, in connection with any or all of the Consent Solicitations, Allergan the Company shall execute a one or more supplemental indenture indentures to the applicable Indenture in accordance with the terms thereof amending the terms and provisions of such Indenture as described in the applicable Debt Offer Documents in a form as reasonably requested by AbbVie Parent (each, an a “Allergan Company Supplemental Indenture”); provided that the amendments effected by , which such supplemental indenture indentures shall become effective upon the execution thereof but shall not become operative until the CompletionTeton Merger Effective Time, and the Company shall use reasonable best efforts to cause the trustee under each such Indenture to enter into such supplemental indentures. Subject to Section 6.16(d), the second paragraph of Section 7.9(a) above, until the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9 Allergan shall use its reasonable best effortsCompany shall, and shall cause each of its Subsidiaries to use its reasonable best effortsto, and shall use its reasonable best efforts to cause its and their respective Representatives to use their reasonable best effortsto, to provide all reasonable and customary cooperation as may be reasonably requested by AbbVie Parent in writing to assist AbbVie Parent in connection with any Allergan Note Offers and Consent Solicitations (including upon AbbVie’s written request, using reasonable best efforts to cause Allergan’s independent accountants to provide customary consents for use of their reports to the extent required in connection with any Allergan Company Note Offers and Consent Solicitations); provided that neither the Company nor counsel for the Company shall be required to furnish any certificates, legal opinions or negative assurance letters in connection with any Company Note Offers and Consent Solicitation (other than in connection with the execution of any Company Supplemental Indenture relating to the Consent Solicitations, with respect to which the Company shall deliver customary officer’s certificates (the “Company Indenture Officers’ Certificates”) and counsel to the Company shall provide customary legal opinions, in each case, to the trustee under each applicable Indenture and solely to the extent such certificates or legal opinions, as applicable, would not conflict with applicable Laws and would be accurate in light of the facts and circumstances at the time delivered) or execute any other instruments or agreements in connection therewith other than any Company Supplemental Indenture described in the immediately preceding sentence. The dealer manager, solicitation agent, information agent, depositary or other agent retained in connection with any Allergan Company Note Offers and Consent Solicitations will be selected and by Parent, retained by AbbVieParent, and their fees and out-of-pocket expenses will be paid directly by AbbVieParent. If, at any time prior to the completion of the Allergan Company Note Offers and Consent Solicitations, Allergan the Company or any of its Subsidiaries, on the one hand, or AbbVie Parent or any of its Subsidiaries, on the other hand, discovers any information that should be set forth in an amendment or supplement to the Debt Offer Documents, so that the Debt Offer Documents shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of circumstances under which they are made, not misleading, such party that discovers such information shall use reasonable best efforts to promptly notify the other Partyparty, and an appropriate amendment or supplement prepared by AbbVie Parent describing such information shall be disseminated to the holders of the applicable notes, debentures or other debt securities of Allergan or its Subsidiaries the Company outstanding under the applicable Indenture.
(b) If requested by Parent, in lieu of or in addition to Parent commencing or closing any Company Note Offer and Consent Solicitation for any series of Existing Company Notes, the Company shall use its reasonable best efforts, to the extent permitted by such series of Existing Company Notes and the applicable Indenture, to (A) issue a notice of redemption (“Company Redemption Notice”) for all or portion of the outstanding aggregate principal amount of such series of Existing Company Notes, pursuant to the redemption provisions of the applicable Indenture, which notice of redemption shall be expressly conditioned on the occurrence of the Closing and (B) take any other actions reasonably requested by Parent to facilitate the redemption and satisfaction and discharge of any series of Existing Company Notes at the Teton Merger Effective Time pursuant to the redemption and satisfaction and discharge provisions of the applicable Indenture and the other provisions of the Indenture applicable thereto, provided that, for the avoidance of doubt, no such Redemption (as defined below) shall be effective prior to the Teton Merger Effective Time and provided further that neither the Company nor counsel for the Company shall be required to furnish any certificates, legal opinions or negative assurance letters in connection with any Redemption (except that the Company shall deliver customary officers’ certificates (each, a “Company Redemption Officers’ Certificate”) and (solely to the extent the trustee under the applicable Indenture requires an opinion of counsel to the Company) counsel to the Company shall provide customary legal opinions, in each case, to the trustee under each applicable Indenture and solely to the extent such certificates or legal opinions, as applicable, would not conflict with applicable Laws and would be accurate in light of the facts and circumstances at the time delivered). If a notice of conditional redemption or satisfaction and discharge is given, Parent shall ensure that at the Teton Merger Effective Time, so long as the applicable conditions of such redemption or satisfaction and discharge are satisfied, the Company has all funds necessary in connection with any such redemption or satisfaction and discharge. The consummation redemption or satisfaction and discharge of any series of Existing Company Notes pursuant to this clause (b) are referred to collectively as the “Redemption” of such series of Existing Company Notes.
(c) Subject to Section 6.16(d), the Company shall, and shall cause its Subsidiaries to, deliver, in each case, prior to the Closing Date (and as more specifically stated below), all notices and to take all other actions reasonably requested by Parent to facilitate (A) the repayment in full on the Closing Date (or in the case of any letters of credit, cash collateralization, to the extent Parent shall not have entered into an alternative arrangement with the issuing bank) of all amounts and other obligations then outstanding under and (B) the termination (to the extent provided therein and pursuant to the terms thereof) on the Closing Date of (such repayments and terminations, the “Existing Credit Facilities Termination”) the Credit Agreement, including by providing to the Parent a payoff letter from the agent under the Credit Agreement, in form and substance reasonably satisfactory to Parent, which payoff letter shall, among other things, (i) indicate the total amount required to be paid to fully satisfy all principal, interest, prepayment premiums, penalties and any other monetary obligations then due and payable under the Credit Agreement (the “Payoff Amount”), (ii) provide that upon receipt of the Allergan Payoff Amount under the payoff letter, such indebtedness and all related loan documents (or similar agreements) shall be terminated and (iii) provide that all security interests (if any) granted to secure the obligations under the Credit Agreement and guarantees by Subsidiaries of the Company under the Credit Agreement shall be released and terminated upon receipt of the Payoff Amount. Parent shall provide all funds required to effect the Existing Credit Facilities Termination; provided that the Existing Credit Facilities Termination and any notices related thereto shall be expressly conditioned on the Closing.
(d) Notwithstanding the foregoing or anything to the contrary set forth in Section 6.15 or this Section 6.16, neither the Company nor any of its Affiliates shall be required to (i) take or permit the taking of any action pursuant to Section 6.15 or this Section 6.16 that (A) would require the Company, its Affiliates or any Persons who are directors or officers of the Company or its Affiliates or any of their respective Representatives to pass resolutions or consents to approve or authorize the execution of the Debt Financing, any Company Note Offers and Consent Solicitations shall or any Redemption or execute or deliver any certificate, document, instrument, opinion, negative assurance letter or agreement or agree to any change or modification of any existing certificate, document, instrument, opinion, negative assurance letter or agreement (other than (w) authorization letters contemplated by Section 6.15(e)(ii), (x) to the extent required by Section 6.16(a), applicable Company Supplemental Indentures and related Company Indenture Officers’ Certificates and customary legal opinions in connection therewith, (y) to the extent required by Section 6.16(b), applicable Company Redemption Notices, notices of satisfaction and discharge and Company Redemption Officers’ Certificates and legal opinions in connection therewith and (z) to the extent required by Section 6.16(c), the applicable payoff letter and related notices) that is, in each case, effective prior to the Teton Merger Effective Time, (B) would cause any representation or warranty in this Agreement to be breached by the Company or any of its Affiliates, (C) would require the Company or any of its Affiliates to (1) pay any commitment or other similar fee or (2) incur any other expense, liability or obligation in connection with the Debt Financing, any Company Note Offers and Consent Solicitations or any Redemption prior to the Teton Merger Effective Time, in each case of this clause (2) that would not be reimbursed or indemnified in full by Parent in accordance with the last sentence of this Section 6.16(d), (D) would cause any director, officer, employee or stockholder of the Company or any of its Subsidiaries to incur any personal liability, or (E) would result in a condition violation or breach of, conflict with, or a default (with or without notice, lapse of time, or both) under any Material Contract to Completionwhich the Company or any of its Subsidiaries is a party, the organizational documents of the Company or its Subsidiaries or any applicable Law; (ii) provide any access, or make available any document, correspondence or information, if doing so would, in the reasonable judgment of the Company’s legal counsel, jeopardize or cause a risk of loss or waiver of the attorney-client, attorney work product or other similar privilege of the Company or any of its Subsidiaries; provided, that in such instance the Company shall inform Parent of the general nature of the information being withheld and, on Parent’s request, reasonably cooperate with the other party to provide such information, in whole or in part, in a manner that would not result in any of the outcome described in this clause (ii); (iii) without otherwise limiting the obligations of the Company pursuant to Section 6.15 to assist Parent in Parent’s preparation of any materials that include any Excluded Information, prepare any Excluded Information or (iv) take or permit the taking of any action pursuant to Section 6.15 or this Section 6.16 that would unreasonably interfere with the ongoing business or operations of the Company and its Subsidiaries. Nothing contained in Section 6.15 or this Section 6.16 or otherwise shall require the Company or any of its Affiliates, prior to the Closing, to be an issuer or other obligor with respect to the Debt Financing or to commence any Company Note Offers and Consent Solicitations. Parent and Teton Merger Sub shall, on a joint and several basis, promptly upon request by the Company, reimburse the Company or any of its Affiliates for all reasonable and documented out-of-pocket costs and expenses (including reasonable and documented attorneys’ fees) incurred by them or their respective Representatives in connection with such cooperation pursuant to Section 6.2(d), Section 6.15 and this Section 6.16 (whether or not the Teton Merger is consummated or this Agreement is terminated) and shall (on a joint and several basis) indemnify and hold harmless the Company and its Affiliates and their respective Representatives from and against any and all losses, claims, damages, liabilities, reasonable out-of-pocket costs, reasonable and documented out-of-pocket attorneys’ fees, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of any thereof) suffered or incurred by them in connection with the arrangement of the Debt Financing, the Company Note Offers and Consent Solicitations or any Redemption, any action taken by them at the request of Parent or its representatives pursuant to Section 6.2(d), Section 6.15 and this Section 6.16 and any information used in connection therewith (other than information provided by the Company, its Subsidiaries or their respective Representatives), in each case, except to the extent suffered or incurred as a result of the bad faith, gross negligence, willful misconduct or material breach of this Agreement by the Company or any of its Subsidiaries or their respective Representatives, as determined in a final and non-appealable judgement by a court of competent jurisdiction (the “Reimbursement Obligations”).
Appears in 1 contract
Samples: Merger Agreement (Tegna Inc)
Cooperation as to Certain Indebtedness. AbbVie CONFIDENTIAL TREATMENT PURSUANT TO RULE 24b-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934 HAS BEEN REQUESTED FOR THE OMITTED PORTIONS OF THIS DOCUMENT, WHICH ARE INDICATED BY ASTERISKS.
(a) To the extent mutually agreed by Purchaser and NYLD, Purchaser may, or may request NYLD and NYLD LLC to, commence one or more of its Subsidiaries may (i) commence any of the following: (A) one or more offers consent solicitations to purchase any or all of the outstanding debt issued under the Indentures for cash (the “Offers to Purchase”); or (B) one or more offers to exchange any or all of the outstanding debt issued under the Indentures for securities issued by AbbVie or any of its Affiliates (the “Offers to Exchange”); and (ii) solicit the consent of the holders of debt issued under the Indentures any NYLD Notes regarding certain proposed amendments to the applicable Indenture indentures governing any NYLD Notes as requested by Purchaser, including to eliminate, waive or amend the change of control provisions in such indentures (the “Consent Solicitations” and, together with the Offers to Purchase and Offers to Exchange, if any, the “Allergan Note Offers and Notes Consent Solicitations”); provided that the closing of any such transaction shall not be consummated until the Completion and any such transaction shall be funded using consideration provided by AbbVie. Any Allergan Note Offers and Notes Consent Solicitations shall be made on such terms and conditions (including price to be paid and conditionality) as are proposed mutually agreed by AbbVie Purchaser and which are permitted by NYLD; provided, that, in any event, Purchaser and NYLD (for itself and on behalf of NYLD LLC) agree that (A) any such Notes Consent Solicitations shall comply with applicable Law and the terms of the indenture governing the applicable Indenture and applicable LawsNYLD Notes, including SEC rules and regulations. AbbVie shall consult with Allergan regarding (B) the material terms and conditions of any Allergan Note Offers and Consent Solicitations, including the timing and commencement of any Allergan Note Offers and Notes Consent Solicitations shall provide that the closing thereof or the effectiveness of the substantive provisions thereof, as the case may be, shall be contingent upon, or shall only become operative substantially concurrently with, Closing and any tender deadlines. AbbVie shall (C) assuming the requisite consents have provided Allergan been received with the necessary offer to purchase, offer to exchange, consent solicitation statement, letter of transmittal, press release, if any, in connection therewith, and each other document relevant respect to the transaction that will be distributed by AbbVie in the applicable Allergan Note Offers and Consent Solicitations (collectivelyNYLD Notes, the “Debt Offer Documents”) a reasonable period of time in advance of commencing the applicable Allergan Note Offers and Consent Solicitations to allow Allergan and its counsel to review and comment on such Debt Offer Documents, and AbbVie shall give reasonable and good faith consideration to any comments made or input provided by Allergan and its legal counsel. Subject NYLD Entities (to the receipt of the requisite holder consents, in connection with any or all of the Consent Solicitations, Allergan extent necessary) shall execute (or cause to be executed) a supplemental indenture to the applicable Indenture in accordance with indenture governing such NYLD Notes reflecting the terms thereof amending the terms and provisions of such Indenture as described in the applicable Debt Offer Documents in a form as reasonably requested by AbbVie (each, an “Allergan Supplemental Indenture”); provided that the amendments effected by such supplemental indenture shall not become operative until the Completion. Subject to the second paragraph of Section 7.9(a) above, until the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9 Allergan shall use its reasonable best efforts, and shall cause each of its Subsidiaries to use its reasonable best effortsNotes Consent Solicitation, and shall use its commercially reasonable best efforts to cause its and their respective Representatives the trustee under such indenture to use their reasonable best effortsenter into such supplemental indenture, to provide all reasonable and customary cooperation as the case may be reasonably requested by AbbVie in writing to assist AbbVie in connection be; provided, that the substantive provisions thereof shall only become operative substantially concurrently with any Allergan Note Offers and Consent Solicitations (including upon AbbVie’s written request, using reasonable best efforts to cause Allergan’s independent accountants to provide customary consents for use of their reports to the extent required in connection with any Allergan Note Offers and Consent Solicitations)Closing. The dealer manager, solicitation agent, information agent, depositary or other agent retained in connection with any Allergan Note Offers and Consent Solicitations will be selected and retained by AbbVie, and their fees and out-of-pocket expenses will be paid directly by AbbVie. If, If at any time prior to the completion of the Allergan Note Offers and Notes Consent Solicitations, Allergan or any of its Subsidiaries, on the one hand, or AbbVie or any of its Subsidiaries, on the other hand, discovers any information should be discovered by Purchaser, NYLD or NYLD LLC that Purchaser, NYLD or NYLD LLC reasonably believes should be set forth in an amendment or supplement to the Debt Offer Documentsdocumentation relating thereto, so that the Debt Offer Documents such documentation shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of circumstances under which they are made, not misleading, such party the Person that discovers such information shall use reasonable best efforts to promptly notify the other PartyParties, and an appropriate amendment or supplement prepared by AbbVie Purchaser (or at the direction of Purchaser, prepared by NYLD or NYLD LLC) describing such information shall be disseminated to the holders of the applicable notesNYLD Notes (which amendment or supplement and dissemination may, debentures at the sole discretion of NYLD, take the form of the furnishing or filing of a Current Report on Form 8-K). Each of Purchaser and NYLD agrees to, and with respect to NYLD, to cause the NYLD Entities to, reasonably consult and cooperate with each other (and, in the case of the NYLD Entities, to provide assistance) in connection with the commencement and conduct of any Notes Consent Solicitation, and to use its and their reasonable efforts to cause its and their respective officers, employees, consultants and advisors, including legal and accounting advisors, to provide such assistance and cooperation reasonably requested by Purchaser that is reasonably necessary and customary in connection therewith, including assistance with the preparation of one or more consent solicitation statements, letters of transmittal and consents and press releases and provision of the financial statements described in Section G.6. In connection with the Notes Consent Solicitations, Purchaser and NYLD may select one or more dealer managers, consent solicitation agents, information agents and other agents or service providers acceptable to each of Purchaser and NYLD to assist therewith, and NYLD and NYLD LLC shall enter into customary agreements engaging such parties and cooperate with such parties in performing their roles. NYLD shall request the legal counsel to NYLD and NYLD LLC to provide all legal opinions required in connection with the transactions contemplated by this Section G.6 to the extent any such legal opinion is required to be delivered on or prior to the Closing Date.
(b) Notwithstanding anything to the contrary in this Agreement, none of the NYLD Entities or any of their respective directors or officers or other debt securities of Allergan or its Subsidiaries outstanding under the applicable Indenture. The consummation of any or all of the Allergan Note Offers and Consent Solicitations personnel shall not be a condition to Completionrequired by this Section CONFIDENTIAL TREATMENT PURSUANT TO RULE 24b-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934 HAS BEEN REQUESTED FOR THE OMITTED PORTIONS OF THIS DOCUMENT, WHICH ARE INDICATED BY ASTERISKS.
Appears in 1 contract
Cooperation as to Certain Indebtedness. AbbVie or one or more (a) At Parent’s direction, the Company shall, and shall cause each of its Subsidiaries Subsidiaries, and each of its and their respective directors, officers, agents, employees and Representatives to, use reasonable best efforts to commence promptly following the date hereof (or on such other date as Parent may (ireasonably request) commence any a solicitation of the following: (A) one or more offers to purchase any or all of the outstanding debt issued under the Indentures for cash a consent and amendment (the “Offers to PurchaseCredit Agreement Consent and Amendment”); or (B) one or more offers to exchange any or all of the outstanding debt issued under the Indentures for securities issued by AbbVie or any of its Affiliates (the “Offers to Exchange”); and (ii) solicit the consent of the holders of debt issued under the Indentures regarding certain proposed amendments to the applicable Indenture (Credit Agreement to be effective on the “Consent Solicitations” andEffective Time, together with the Offers to Purchase and Offers to Exchange, if any, the “Allergan Note Offers and Consent Solicitations”); provided that the closing of any such transaction shall not be consummated until the Completion and any such transaction shall be funded using consideration provided by AbbVie. Any Allergan Note Offers and Consent Solicitations shall be made on such terms and conditions (including price to be paid and conditionality) as are proposed requested by AbbVie and Parent, which are permitted shall include an agreement by the terms of requisite lenders thereunder that the applicable Indenture and applicable Lawstransactions contemplated by this Agreement, including SEC rules and regulations. AbbVie the Merger, will not result in a Change of Control (as defined in the Credit Agreement); provided that (i) Parent shall consult with Allergan the Company regarding the material terms and conditions of any Allergan Note Offers the Credit Agreement Consent and Consent SolicitationsAmendment, including the timing and commencement of any Allergan Note Offers the Credit Agreement Consent and Consent Solicitations Amendment and any tender deadlines. AbbVie shall have provided Allergan with the necessary offer to purchase, offer to exchange, consent solicitation statement, letter of transmittal, press release, if any, in connection therewith, and each other document relevant (ii) the closing of the Credit Agreement Consent and Amendment shall be expressly conditioned on the occurrence of the Effective Time.
(b) If, prior to the transaction Effective Time, Parent determines in its sole discretion that the Credit Agreement Consent and Amendment will not be distributed by AbbVie in obtained and become effective on the applicable Allergan Note Offers and Consent Solicitations (collectivelyEffective Time, the “Debt Offer Documents”) a reasonable period of time in advance of commencing the applicable Allergan Note Offers and Consent Solicitations to allow Allergan and its counsel to review and comment on such Debt Offer Documents, and AbbVie shall give reasonable and good faith consideration to any comments made or input provided by Allergan and its legal counsel. Subject to the receipt of the requisite holder consents, in connection with any or all of the Consent Solicitations, Allergan shall execute a supplemental indenture to the applicable Indenture in accordance with the terms thereof amending the terms and provisions of such Indenture as described in the applicable Debt Offer Documents in a form as reasonably requested by AbbVie (each, an “Allergan Supplemental Indenture”); provided that the amendments effected by such supplemental indenture shall not become operative until the Completion. Subject to the second paragraph of Section 7.9(a) above, until the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9 Allergan shall use its reasonable best effortsCompany shall, and shall cause each of its Subsidiaries to Subsidiaries, and each of its and their respective directors, officers, agents, employees and Representatives to, use its their reasonable best effortsefforts to:
(i) on or prior to the Effective Time, (A) repay in full (or in the case of any letters of credit issued thereunder, provide cash collateral in an amount not less than the amount required under the Credit Agreement) all Obligations (as defined in the Credit Agreement) then outstanding, (B) cause the release of any and all Liens (as defined in the Credit Agreement) created or granted under any Credit Document (as defined in the Credit Agreement) or otherwise in favor of the administrative agent, collateral agent or any holder of the Guaranteed Obligations (as defined in the Credit Agreement) as security for such Guaranteed Obligation, and (C) terminate the Credit Agreement, each other Credit Document and each Swap Contract (as defined in the Credit Agreement) (other than Swap Contracts as to which arrangements reasonably satisfactory to Parent have been made with the swap counterparty) (such repayments and terminations, the “Credit Agreement Terminations”), including obtaining a customary payoff letter in form and substance reasonably satisfactory to Parent from the agent under the Credit Agreement (the “Payoff Letter”); it being understood that (1) Parent and the Company shall use its their reasonable best efforts to effect the Credit Agreement Termination using funds available pursuant to the Senior Secured Credit Financing; provided, that, to the extent the Senior Secured Credit Financing is not available as a source of funding, Parent shall cause the funds required to effect the Credit Agreement Termination to be made available at the closing; and (2) none of the receipt of the Payoff Letter, the consummation of the Credit Agreement Termination, or of any other financing termination or the release of any Lien, shall be a condition to any of the obligations of Parent or Merger Sub hereunder; and
(ii) at Parent’s election, cooperate reasonably with and assist Parent, and each of its Subsidiaries, and each of its and their respective Representatives directors, officers, agents, employees and Representatives, in connection with new financing arrangements satisfactory to use their Parent (the “Senior Secured Credit Financing”), including (A) participating in a reasonable best effortsnumber of meetings, to provide presentations, due diligence sessions, drafting sessions, road shows and sessions with ratings agencies on reasonable advance notice, (B) furnishing all reasonable customary financial and customary cooperation other information regarding the Company and its Subsidiaries as may be reasonably requested by AbbVie in writing to assist AbbVie in connection with any Allergan Note Offers and Consent Solicitations Parent (including upon AbbViepro forma financial statements) as promptly as reasonably practicable, (C) assisting in a reasonable manner with the preparation of materials for rating agency presentations, offering documents, private placement memoranda, information memoranda and packages and similar documents for the Senior Secured Credit Financing and executing customary authorization and management representation letters (including, in the case of a public side version of an information memorandum, a representation to the arranger of the Senior Secured Credit Financing that such public side version does not include material nonpublic information about the Company and its Subsidiaries), in each case, to the extent reasonably necessary for the consummation of the Senior Secured Credit Financing, (D) taking all corporate actions reasonably requested by Parent that are necessary or customary to permit the consummation of the Senior Secured Credit Financing, (E) cooperating reasonably in respect of the preparation of and, if applicable, executing and delivering any underwriting or placement agreements, pledge and security documents, hedging agreements (if required) and other definitive financing documents relating to the Senior Secured Credit Financing, (F) using its reasonable best efforts to obtain, in each case, to the extent necessary for the consummation of the Senior Secured Credit Financing, customary accountants’ comfort letters, consents, surveys and appraisals, engineering reports, environmental and other inspections, title insurance and other documentation and items relating to the Senior Secured Credit Financing and collateral arrangements, as reasonably requested by Parent, (G) executing and delivering any customary and reasonable officer’s written requestcertificates, customary closing documents, or other certificates or documents with respect to the Senior Secured Credit Financing, in each case, as may be reasonably requested by Parent, in each case, to the extent necessary for the consummation of the Senior Secured Credit Financing, (H) using reasonable best efforts to cause Allerganfacilitate the pledging of collateral for the Senior Secured Credit Financing, including taking commercially reasonable actions necessary to permit the sources of the Senior Secured Credit Financing to evaluate the Company’s independent accountants and its Subsidiaries’ real property and current assets, cash management and accounting systems, policies and procedures for the purpose of establishing collateral arrangements in connection with the Senior Secured Credit Financing and (I) assisting Parent in obtaining ratings in connection with the Senior Secured Credit Financing; provided that (1) in no event shall the receipt or availability of any funds or financing pursuant to provide customary the Senior Secured Credit Financing by or to Parent or any of its Affiliates or any other financing transaction be a condition to any of Parent’s or Merger Sub’s obligations hereunder and (2) none of the Company or any of its Subsidiaries shall be required to execute any definitive documentation pertaining to the Senior Secured Credit Facility until the Effective Time has occurred.
(c) The Company and its directors, officers, agents, employees and Representatives shall be given a reasonable opportunity to review and comment on any financing documents and any materials that are to be presented during any meetings conducted in connection with the Senior Secured Credit Financing. Parent and Merger Sub acknowledge and agree that the Company and each of its Subsidiaries and each of its and their respective directors, officers, agents, employees and Representatives shall not have any responsibility for, or incur any liability to any Person in connection with, the arrangement of the Senior Secured Credit Financing other than with respect to the Financing Fees, which shall be payable by the Company as incurred and reimbursable to the Company as set forth in Section 5.16(f).
(d) The Company hereby consents for to the use of their reports its logos in connection with the Senior Secured Credit Financing; provided that such logos are used solely in a manner that would not reasonably be expected to harm the Company or any of its Subsidiaries or the reputation or goodwill of the Company or any of its Subsidiaries.
(e) Parent will indemnify and hold harmless the directors, officers, personnel and advisors of the Company and its Subsidiaries against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred in connection with the activities contemplated by this Section 5.16, including the Credit Agreement Consent and Amendment, the Credit Agreement Terminations, the Payoff Letter and the Senior Secured Credit Financing, or any assistance or activities in connection therewith, except (i) to the extent required in connection with arising from the willful misconduct, gross negligence, fraud or intentional misrepresentation of the Company or its Subsidiaries and any Allergan Note Offers of their respective directors, officers, personnel and Consent Solicitations). The dealer manager, solicitation agent, information agent, depositary or other agent retained in connection with any Allergan Note Offers and Consent Solicitations will be selected and retained by AbbVieadvisors, and their fees and out-of-pocket expenses will be paid directly (ii) for Financing Fees incurred by AbbVie. If, at any time prior to the completion of the Allergan Note Offers and Consent Solicitations, Allergan Company or any of its Subsidiaries, on which shall be reimbursed only in the one handcircumstances described in Section 5.16(f).
(f) The Company will pay all fees and expenses of the Company and its Subsidiaries in connection with the Credit Agreement Consent and Amendment, the Credit Agreement Terminations, the Payoff Letter, the Senior Secured Credit Financing and any other matters contemplated by this Section 5.16 (including fees and expenses of legal counsel and advisors and any applicable indemnification obligations of the Company) (collectively, the “Financing Fees”) when such fees and expenses are due and payable; provided, however, that in the event this Agreement is terminated prior to the Effective Time pursuant to:
(i) Section 7.1(a), 7.1(b)(i), or AbbVie or any 7.1(b)(ii) then Parent shall reimburse the Company fifty percent (50%) of its Subsidiaries, on the other hand, discovers any information that should be set forth in an amendment or supplement to the Debt Offer Documents, so that the Debt Offer Documents shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of circumstances under which they are made, not misleading, such party that discovers such information shall use reasonable best efforts to promptly notify the other PartyFinancing Fees;
(ii) Section 7.1(b)(iii) (if, and an appropriate amendment only if, the Company has not made a Company Adverse Recommendation Change prior to such termination pursuant to Section 7.1(b)(iii)) or supplement prepared by AbbVie describing such information 7.1(c)(ii), then Parent shall be disseminated to reimburse the holders Company one hundred percent (100%) of the applicable notesFinancing Fees; or
(iii) Section 7.1(b)(iii) (if, debentures and only if, the Company has made a Company Adverse Recommendation change prior to such termination pursuant Section 7.1(b)(iii)), 7.1(c)(i), 7.1(d)(i) or other debt securities of Allergan or its Subsidiaries outstanding under the applicable Indenture. The consummation of any or all of the Allergan Note Offers and Consent Solicitations 7.1(d)(ii), then Parent shall not be a condition required to Completionreimburse the Company any portion of the Financing Fees.
Appears in 1 contract
Samples: Merger Agreement (HSN, Inc.)
