Debt Financing Cooperation. (a) Seller shall, and shall use all reasonable best efforts to cause its Affiliates and Representatives to, provide such cooperation in connection with the arrangement of the Debt Financing as is reasonably requested by Buyer; provided that Seller and its Affiliates shall in no event be required to provide such assistance that shall unreasonably interfere with their respective business operations. Such assistance shall include, without limitation, the following, each of which shall be at Buyer’s request with reasonably practicable prior notice and at Buyer’s sole cost and expense: (i) furnishing Buyer and its Financing Sources as promptly as practicable with (x) the financial statements and pro forma financial information referred to in the Commitment Letters (as in effect as of the date hereof) and (y) such other pertinent and customary financial and other information customarily delivered in connection with Buyer’s preparation of a customary bank book, confidential information memorandum, lender presentations, business projections and similar documents for financings that are similar to the Debt Financing and other marketing materials customarily used in connection with the syndication of financings that are similar to the Debt Financing reasonably requested by Buyer (including with respect to acquired entities) in order to market, syndicate and consummate the Debt Financing, and promptly provide Parent with any supplements to such information requested by Buyer pursuant to this clause (i); (ii) participation by the senior management team of the Business in the marketing activities undertaken in connection with the marketing of the Debt Financing, including (A) assisting in the preparation of a customary bank book, confidential information memorandum, lender presentations, business projections and similar documents (B) a reasonable number of meetings with prospective lenders or debt investors, sessions with rating agencies for the Debt Financing and due diligence sessions and otherwise assisting in marketing efforts related to the Debt Financing including, without limitation, direct contact between senior management and representatives of the Business, on the one hand, and the financing sources, potential lenders and investors for the Debt Financing (including, without limitation, the Financing Sources), on the other hand; (C) providing to Buyer from time to time information regarding the Business reasonably requested by the financing sources (including, without limitation, the Financing Sources) and assisting with the preparation of appropriate and customary materials for rating agency presentations, offering and syndication documents (including prospectuses, private placement memoranda, lender and investor presentations, bank information memoranda and similar documents), (D) taking reasonable corporate actions, subject to and only effective upon the occurrence of the Closing, reasonably necessary to permit the consummation of the Debt Financing; (E) providing customary authorization and/or representation letters in connection with the distribution of the bank information memoranda contemplated by the Debt Commitment Letter to prospective lenders and identifying any portion of the information therein that constitutes material non-public information regarding the Business, Seller or its Subsidiaries; provided that such letters and confirmations expressly state that (x) Seller shall not have any liability of any kind or nature resulting from the use of information in connection with their cooperation with arranging the Debt Financing and (y) the recipient of such letters of authorization shall be entitled to rely only on the representations and warranties contained in the Debt Financing Documents; (F) assisting with the preparation and negotiation of, and facilitating the execution and delivery by the appropriate officers of any Purchased Company of, loan agreements, pledge and security documents and other definitive documents and/or certificates contemplated by the Debt Commitment Letter; (G) have a senior financial officer of any Purchased Company execute and deliver to the Financing Sources a solvency certificate in substantially the form attached to the Debt Commitment Letter; (H) cooperating in the replacement or backstop of any outstanding letters of credit issued for the account of the Business or any Purchased Subsidiaries or any joint venture thereof; (I) furnish Buyer and the Financing Sources at least five Business Days prior to the Closing Date with all documentation and other information with respect to the Business and any Purchased Subsidiaries required by the Debt Commitment Letter required under applicable “know your customer” and anti-money laundering laws, rules and regulations, including the U.S. PATRIOT Act to the extent requested not less than 10 days prior to the Closing Date; (J) consenting to the use of the logos of the Business so long as such use is not reasonably likely to harm or disparage the Business or its reputation, goodwill, products, services, offerings or intellectual property rights; (K) obtaining customary payoff letters and related documents and instruments relating to the repayment of any exiting third party indebtedness for borrowed money required by the Debt Commitment Letter to be repaid on or coincidental with Closing; and (L) supplementing the information covered by this Section 5.22(a)(ii) on a current basis if such supplement is necessary to ensure that such information does not contain an untrue statement of a material fact or omit to state any material fact necessary to make such information not misleading; and (iii) taking such actions as are reasonably requested by Buyer or its Financing Sources to facilitate the satisfaction on a timely basis of all Financing Conditions that are within its control. (b) Seller will use its reasonable best efforts, and will cause its Subsidiaries to use their reasonable best efforts, to provide to Buyer and its Financing Sources such information as may be necessary so that the information prepared in connection with the Debt Financing (including the marketing thereof) is complete and correct in all material respects and does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein, in the light of the circumstances under which such statements are made, not misleading. (c) Seller shall have the right to review and comment on marketing materials related to the Debt Financing prior to the dissemination of such materials to potential lenders or other counterparties to any proposed financing transaction (or filing with any Governmental Authority); provided, that Seller shall communicate in writing their comments, if any, to Buyer and its counsel within a reasonable period of time under the circumstances and consistent with the time accorded to other participants who were asked to review and comment on such materials. Notwithstanding anything in this Section 5.22 to the contrary, neither Seller nor any of its Affiliates shall be required to (i) pay any commitment fee or similar fee, (ii) except in the case of the Purchased Companies following the Closing and the execution of authorization and representation letters referred to in Section 5.22(a)(ii), incur any Liability (or cause their respective directors, officers or employees to incur any Liability) with respect to the cooperation described in this Section 5.22, (iii) approve or enter into any agreement or binding commitment, (iv) provide (or to have any of their respective Representatives provide) any opinions or reliance letters, in each case, with respect to or in connection with the Financing or the Sale Leaseback Financing, or (v) execute or deliver, or take any corporate or other action to adopt or approve, any documents, agreement, certificate or instrument with respect to the Financing, including any pledge or security documents or closing certificates (other than (x) the execution of authorization and representation letters referred to in Section 5.22(a)(ii) and (y) to the extent necessary for the valid and enforceable execution of definitive Financing documentation, such cooperation as is reasonably necessary to facilitate the adoption of resolutions and consents, as applicable); provided that the foregoing clause (y) shall not prevent any of the officers or directors of any Purchased Company who will remain officers and/or directors of a Purchased Company immediately following the Closing from executing documents, agreements, resolutions, certificates and instruments that do not become effective until the Closing. (d) Buyer shall indemnify and hold harmless Seller and its Affiliates, and each of their respective directors, officers, employees, agents and other Representatives from and against any and all Liabilities suffered or incurred in connection with the arrangement of the Debt Financing or the Sale Leaseback Financing or any assistance or activities provided in connection therewith (other than historical information relating to the Business provided by Seller or its Affiliates in writing for the purpose of arranging the Debt Financing); provided, however, that the foregoing shall not apply in Seller’s or its Affiliates’ or other Representatives’ willful misconduct or gross negligence. Buyer shall promptly reimburse Seller and its Affiliates for all documented out-of-pocket third party costs incurred by Seller and its Affiliates in connection with such cooperation. (e) Notwithstanding anything to the contrary herein, it is understood and agreed that the condition set forth in Section 8.02(a), as applied to Seller’s obligations under this Section 5.22, shall be deemed to be satisfied unless the Financing or the Sale Leaseback Financing has not been obtained as a result of Sellers’s breach of its obligations under this Section 5.22 to the extent such breach impairs or adversely affects the Financing or the Sale Leaseback Financing, including the execution, timing and pricing or cost thereof, in a material manner. Buyer acknowledges and agrees that obtaining the Financing and the Sale Leaseback Financing are not conditions to Closing. None of Seller or any of its Affiliates shall have any obligations under this Section 5.22 following the consummation of the transactions contemplated hereby.
Appears in 2 contracts
Samples: Asset and Stock Purchase Agreement (Darden Restaurants Inc), Asset and Stock Purchase Agreement (Darden Restaurants Inc)
Debt Financing Cooperation. (a) Seller shallCooperation by the Company with the Debt Financing. Prior to the Effective Time, upon request by Parent, the Company will use its reasonable best efforts, and shall will cause each of its Subsidiaries and their respective Representatives to use all their reasonable best efforts efforts, to cause its Affiliates provide all cooperation as may be customary and Representatives to, provide such cooperation reasonably requested by Parent in connection with the arrangement of the Debt Financing as is reasonably requested by Buyer; provided that Seller and its Affiliates shall in no event be required to provide such assistance that shall unreasonably interfere with their respective business operations. Such assistance shall includeFinancing, including, without limitation, the following, each of which shall be at Buyer’s request with reasonably practicable prior notice and at Buyer’s sole cost and expenseto:
(i) furnishing Buyer participate (and its cause senior management and Representatives of the Company to participate) in a reasonable and limited number of meetings, presentations, and due diligence sessions with the Debt Financing Sources as promptly as practicable in respect of the Debt Financing;
(ii) solely with (x) respect to financial information and data derived from the Company’s historical books and records and maintained in the ordinary course of business, assist Parent with providing information reasonably required in connection with the preparation of pro forma financial statements information and pro forma financial information referred statements to in the Commitment Letters (as in effect as of the date hereof) and (y) such other pertinent and customary financial and other information customarily delivered in connection with Buyer’s preparation of a customary bank book, confidential information memorandum, lender presentations, business projections and similar documents for financings that are similar to extent required by the Debt Financing Sources, it being agreed that the Company will not be required to provide any information or assistance relating to (A) the proposed aggregate amount of debt and equity financing, together with assumed interest rates, dividends (if any) and fees and expenses relating to the incurrence of such debt or equity financing; (B) any post-Closing or pro forma cost savings, synergies, capitalization, ownership or other marketing materials customarily pro forma adjustments desired to be incorporated into any information used in connection with the syndication Debt Financing; or (C) any financial information related to Parent or any of financings its Subsidiaries or any adjustments that are similar not directly related to the Debt Financing reasonably requested acquisition of the Company by Buyer (including with respect to acquired entities) in order to market, syndicate and consummate the Debt Financing, and promptly provide Parent with any supplements to such information requested by Buyer pursuant to this clause (i)Parent;
(iiiii) participation by the senior management team of the Business in the marketing activities undertaken assist Parent in connection with the marketing preparation and registration of (but not execute) any credit agreements, guarantees, pledge and security documents, and certificates and other definitive financing documents (including all information relating to the Company and its Subsidiaries and their respective businesses that is required to be included in any disclosure schedules thereto), in each case, as may be reasonably requested by Parent or the Debt Financing Sources, and otherwise necessary to facilitate the preparation, negotiation, execution and delivery of such financing documents and the pledging of collateral and the granting of security interests and perfection thereof in respect of the Debt Financing, including it being understood that such documents will not be recorded or take effect until the Effective Time;
(iv) upon request, furnish Parent, Merger Sub and the Debt Financing Sources, as promptly as practicable, with (A) assisting in audited financial statements of the preparation of Company and its Subsidiaries on a customary bank book, confidential information memorandum, lender presentations, business projections consolidated basis for the most recently completed fiscal year ended at least 90 days before the Closing Date; and similar documents (B) a reasonable number unaudited consolidated balance sheets and related unaudited statements of meetings with prospective lenders or debt investors, sessions with rating agencies for the Debt Financing income and due diligence sessions and otherwise assisting in marketing efforts cash flows related to the Debt Financing including, without limitation, direct contact between senior management Company and representatives its Subsidiaries on a consolidated basis for each subsequent fiscal quarter (other than the fourth fiscal quarter) ended at least 45 days before the Closing Date;
(v) deliver notices of prepayment within the Business, on time periods required by the one handCredit Agreement, and the financing sourcesgive any other necessary notices, potential lenders and investors to allow for the Debt Financing payoff, discharge and termination in full at the Closing of all obligations (including, without limitation, other than contingent obligations for which no claim has been asserted) under the Financing Sources), on the other hand; Credit Agreement;
(Cvi) providing to Buyer from time to time information regarding the Business reasonably requested by the financing sources (including, without limitation, the Financing Sources) and assisting with the preparation of appropriate and customary materials for rating agency presentations, offering and syndication documents (including prospectuses, private placement memoranda, lender and investor presentations, bank information memoranda and similar documents), (D) taking reasonable corporate actions, subject to and only effective upon the occurrence of the Closing, reasonably necessary to permit the consummation of the Debt Financing; (E) providing customary authorization and/or representation letters in connection with the distribution of the bank information memoranda contemplated by the Debt Commitment Letter to prospective lenders and identifying any portion of the information therein that constitutes material non-public information regarding the Business, Seller or its Subsidiaries; provided that such letters and confirmations expressly state that (x) Seller shall not have any liability of any kind or nature resulting from the use of information in connection with their cooperation with arranging the Debt Financing and (y) the recipient of such letters of authorization shall be entitled to rely only on the representations and warranties contained in the Debt Financing Documents; (F) assisting with the preparation and negotiation of, and facilitating the execution and delivery by the appropriate officers of any Purchased Company of, loan agreements, pledge and security documents and other definitive documents and/or certificates contemplated by the Debt Commitment Letter; (G) have a senior financial officer of any Purchased Company execute obtain and deliver to the Financing Sources a solvency certificate in substantially the form attached to the Debt Commitment Letter; (H) cooperating in the replacement or backstop of any outstanding letters of credit issued for the account of the Business or any Purchased Subsidiaries or any joint venture thereof; (I) furnish Buyer and the Financing Sources Parent, at least five two (2) Business Days prior to the Closing Date Date, (i) a customary payoff letter (which letter shall, for the avoidance of doubt, specify the aggregate non-contingent amount of Indebtedness owed by the Company and its Subsidiaries under the Credit Agreement as of the proposed payoff date together with any prepayment premiums, breakage costs, and other expenses and fees incurred in connection with the repayment thereof), and indicating that upon repayment of all such outstanding obligations (other than contingent and expense reimbursement obligations not yet due) arising under or relating to such Credit Agreement shall be repaid and extinguished in full, and that upon receipt of such amount, all security interests thereunder will be automatically terminated and all liens automatically released, along with (ii) customary lien releases relating to such liens; and
(vii) furnish Parent and the Debt Financing Sources no later than 3 Business Days prior to the Closing Date, with all documentation and other information with respect about the Company and its Subsidiaries as is reasonably requested by Parent at least nine (9) Business Days prior to the Business Closing Date, in accordance with the requirements of the Debt Financing Sources, and any Purchased Subsidiaries that is required by the Debt Commitment Letter required under regulatory authorities pursuant to applicable “know your customer” and anti-money laundering laws, rules and regulations, including the U.S. USA PATRIOT Act to the extent requested not less than 10 days prior to the Closing Date; (J) consenting to the use of the logos of the Business so long as such use is not reasonably likely to harm or disparage the Business or its reputation, goodwill, products, services, offerings or intellectual property rights; (K) obtaining customary payoff letters and related documents and instruments relating to the repayment of any exiting third party indebtedness for borrowed money required by the Debt Commitment Letter to be repaid on or coincidental with Closing; and (L) supplementing the information covered by this Section 5.22(a)(ii) on a current basis if such supplement is necessary to ensure that such information does not contain an untrue statement of a material fact or omit to state any material fact necessary to make such information not misleading; and
(iii) taking such actions as are reasonably requested by Buyer or its Financing Sources to facilitate the satisfaction on a timely basis of all Financing Conditions that are within its control.
(b) Seller will use its reasonable best efforts, and will cause its Subsidiaries to use their reasonable best efforts, to provide to Buyer and its Financing Sources such information as may be necessary so that the information prepared in connection with the Debt Financing (including the marketing thereof) is complete and correct in all material respects and does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein, in the light of the circumstances under which such statements are made, not misleading.
(c) Seller shall have the right to review and comment on marketing materials related to the Debt Financing prior to the dissemination of such materials to potential lenders or other counterparties to any proposed financing transaction (or filing with any Governmental Authority); provided, that Seller shall communicate in writing their comments, if any, to Buyer and its counsel within a reasonable period of time under the circumstances and consistent with the time accorded to other participants who were asked to review and comment on such materials. Notwithstanding anything in this Section 5.22 to the contrary, neither Seller nor any of its Affiliates shall be required to (i) pay any commitment fee or similar fee, (ii) except in the case of the Purchased Companies following the Closing and the execution requirements of authorization and representation letters referred to in Section 5.22(a)(ii), incur any Liability (or cause their respective directors, officers or employees to incur any Liability) with respect to the cooperation described in this Section 5.22, (iii) approve or enter into any agreement or binding commitment, (iv) provide (or to have any of their respective Representatives provide) any opinions or reliance letters, in each case, with respect to or in connection with the Financing or the Sale Leaseback Financing, or (v) execute or deliver, or take any corporate or other action to adopt or approve, any documents, agreement, certificate or instrument with respect to the Financing, including any pledge or security documents or closing certificates (other than (x) the execution of authorization and representation letters referred to in Section 5.22(a)(ii) and (y) to the extent necessary for the valid and enforceable execution of definitive Financing documentation, such cooperation as is reasonably necessary to facilitate the adoption of resolutions and consents, as applicable); provided that the foregoing clause (y) shall not prevent any of the officers or directors of any Purchased Company who will remain officers and/or directors of a Purchased Company immediately following the Closing from executing documents, agreements, resolutions, certificates and instruments that do not become effective until the Closing31 C.F.R. §1010.230.
(d) Buyer shall indemnify and hold harmless Seller and its Affiliates, and each of their respective directors, officers, employees, agents and other Representatives from and against any and all Liabilities suffered or incurred in connection with the arrangement of the Debt Financing or the Sale Leaseback Financing or any assistance or activities provided in connection therewith (other than historical information relating to the Business provided by Seller or its Affiliates in writing for the purpose of arranging the Debt Financing); provided, however, that the foregoing shall not apply in Seller’s or its Affiliates’ or other Representatives’ willful misconduct or gross negligence. Buyer shall promptly reimburse Seller and its Affiliates for all documented out-of-pocket third party costs incurred by Seller and its Affiliates in connection with such cooperation.
(e) Notwithstanding anything to the contrary herein, it is understood and agreed that the condition set forth in Section 8.02(a), as applied to Seller’s obligations under this Section 5.22, shall be deemed to be satisfied unless the Financing or the Sale Leaseback Financing has not been obtained as a result of Sellers’s breach of its obligations under this Section 5.22 to the extent such breach impairs or adversely affects the Financing or the Sale Leaseback Financing, including the execution, timing and pricing or cost thereof, in a material manner. Buyer acknowledges and agrees that obtaining the Financing and the Sale Leaseback Financing are not conditions to Closing. None of Seller or any of its Affiliates shall have any obligations under this Section 5.22 following the consummation of the transactions contemplated hereby.
Appears in 2 contracts
Samples: Merger Agreement (Vepf Vii SPV I, L.P.), Merger Agreement (KnowBe4, Inc.)
Debt Financing Cooperation. (a) Seller Parent and the Sellers shall, and shall cause the Business Entities to, and shall use all its reasonable best efforts to cause have its Affiliates and their Representatives to, to provide such cooperation in connection with the arrangement of the Debt Financing Financing, pre-Closing capital raises, or to facilitate Buyer’s post-acquisition planning as is reasonably requested by Buyer; provided provided, that Seller Parent, the Sellers and its Affiliates the Business Entities shall in no event be required to provide such assistance that shall unreasonably interfere with their respective its business operations. Such assistance shall include, without limitation, include the following, each of which shall be at Buyer’s request with reasonably practicable prior notice and at Buyer’s sole cost and expense:
(i) furnishing Buyer and its Financing Sources as promptly as practicable with (x) the financial statements and pro forma financial information referred to in the Commitment Letters (as in effect as of the date hereof) and (y) such other pertinent and customary financial and other information customarily delivered in connection with Buyer’s preparation of a customary bank book, confidential information memorandum, lender presentations, business projections and similar documents for financings that are similar to the Debt Financing and other marketing materials customarily used in connection with the syndication of financings that are similar to the Debt Financing reasonably requested by Buyer (including with respect to acquired entities) in order to market, syndicate and consummate the Debt Financing, and promptly provide Parent with any supplements to such information requested by Buyer pursuant to this clause (i);
(ii) participation by the senior management team of Parent, Sellers and the Business Entities in the marketing activities undertaken in connection with the marketing of the Debt Financing, including (A) assisting in the preparation of a customary bank bookthe Marketing Material and due diligence sessions related thereto, confidential information memorandum, lender presentations, business projections and similar documents (B) a reasonable number of road shows and meetings with prospective lenders or and debt investors, sessions with rating agencies for the Debt Financing investors and due diligence sessions and otherwise assisting in marketing efforts related to the Debt Financing including, without limitation, direct contact between senior management and representatives of the Business, on the one hand, and the financing sources, potential lenders and investors for the Debt Financing (including, without limitation, the Financing Sources), on the other hand; (C) providing to Buyer from time to time information regarding the Business reasonably requested by the financing sources (including, without limitation, the Financing Sources) and assisting with the preparation delivery of appropriate and customary materials for rating agency presentations, offering and syndication documents (including prospectuses, private placement memoranda, lender and investor presentations, bank information memoranda and similar documents), (D) taking reasonable corporate actions, subject to and only effective upon the occurrence of the Closing, reasonably necessary to permit the consummation of the Debt Financing; (E) providing customary authorization and/or representation letters letters, confirmations and undertakings in connection with the distribution Marketing Material (including with respect to the presence or absence of the bank information memoranda contemplated by the Debt Commitment Letter to prospective lenders and identifying any portion of the information therein that constitutes material non-public information regarding and accuracy of the Businessinformation contained therein); provided, Seller or its Subsidiaries; provided that such letters and confirmations expressly state that (x) Seller the Business Entities shall not have any liability of any kind or nature resulting from the use of information contained in the Marketing Material or otherwise in connection with their cooperation with arranging the Debt Financing, unless and until Closing Date occurs;
(ii) participation by senior management of the Business Entities in, and assistance with, the preparation of rating agency presentations and meetings with rating agencies;
(iii) delivery to Buyer and its Financing Sources (including, for the purposes of this Section 5.16(a)(iii), the agents, arrangers, lenders and other entities that have committed to provide or arrange or otherwise entered into agreements in connection with all or any part of a financing other than the Debt Financing or an equity financing) of the Financing Information and Financing Deliverables;
(yiv) participation by senior management of the recipient Business Entities in the drafting and negotiation of such letters of authorization shall be entitled to rely only on the representations and warranties contained in the Debt Financing Documents; (F) assisting with the preparation and negotiation of, and facilitating the execution and delivery by the appropriate officers of any Purchased Company of, loan agreements, pledge and security documents and other definitive documents and/or certificates contemplated by the Debt Commitment Letter; (G) have a senior financial officer of any Purchased Company execute and deliver to the Financing Sources a solvency certificate in substantially the form attached to the Debt Commitment Letter; (H) cooperating in the replacement or backstop of any outstanding letters of credit issued for the account of the Business or any Purchased Subsidiaries or any joint venture thereof; (I) furnish Buyer and the Financing Sources at least five Business Days prior to the Closing Date with all documentation and other information with respect to the Business and any Purchased Subsidiaries required by the Debt Commitment Letter required under applicable “know your customer” and anti-money laundering laws, rules and regulations, including the U.S. PATRIOT Act to the extent requested not less than 10 days prior to the Closing Date; (J) consenting to the use of the logos of the Business so long as such use is not reasonably likely to harm or disparage the Business or its reputation, goodwill, products, services, offerings or intellectual property rights; (K) obtaining customary payoff letters and related documents and instruments relating to the repayment of any exiting third party indebtedness for borrowed money required by the Debt Commitment Letter to be repaid on or coincidental with Closing; and (L) supplementing the information covered by this Section 5.22(a)(ii) on a current basis if such supplement is necessary to ensure that such information does not contain an untrue statement of a material fact or omit to state any material fact necessary to make such information not misleading; and;
(iiiv) taking such actions as are reasonably requested by Buyer or its Financing Sources to facilitate the satisfaction on a timely basis of all Financing Conditions that require their cooperation or are within their control, including (A) cooperating in connection with applications to obtain such consents, approvals or authorizations which may be necessary or desirable in connection with the Debt Financing, (B) forming new direct or indirect Subsidiaries and transferring assets to such Subsidiaries, provided that Parent, its controlSubsidiaries or Affiliates (other than the Business Entities) would not suffer adverse financial or tax consequences, and the Business Entities would not suffer adverse financial or tax consequences prior to or in the absence of the Closing;
(vi) having officers execute, without personal liability, and deliver reasonably necessary officers’ certificates or management representation letters to the independent auditors (for the avoidance of doubt, persons who are directors of the Business Entities prior to the Closing in their capacity as such shall not be required to pass resolutions to approve or authorize the execution of the Debt Financing;
(vii) requesting that its independent auditors as of the Closing cooperate with the Debt Financing, including by providing customary comfort letters (including “negative assurance” comfort); and
(viii) using reasonable best efforts to permit Buyer to be able to provide lenders with the collateral package required by them in connection with any financing, in a form satisfactory to the Financing Sources.
(b) Seller will use its reasonable best efforts, Parent and will cause its Subsidiaries to use their reasonable best efforts, to provide to Buyer and its Financing Sources such information as may be necessary so that the information prepared in connection with the Debt Financing (including the marketing thereof) is complete and correct in all material respects and does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein, in the light of the circumstances under which such statements are made, not misleading.
(c) Seller Sellers shall have the right to review and comment on marketing materials related to the Debt Financing Marketing Material prior to the dissemination of such materials to potential lenders or other counterparties to any proposed financing transaction (or filing with any Governmental Authority); provided, that Seller Parent and the Sellers shall communicate in writing their comments, if any, to Buyer and its counsel within a reasonable period of time under the circumstances and consistent with the time accorded to other participants who were asked to review and comment on such materialsMarketing Material. Notwithstanding anything in this Section 5.22 to the contrary, neither Seller nor any of its Affiliates No Transferred Entity or Transferred Subsidiary shall be required to (i) pay agree to any commitment fee or similar fee, (ii) except in contractual obligation relating to the case of the Purchased Companies following Debt Financing that is not conditioned upon the Closing and that does not terminate without Liability to each Transferred Entity and Transferred Subsidiary and their Affiliates (including Parent and the execution Sellers) upon the termination of authorization and representation letters referred to in Section 5.22(a)(ii), incur any Liability (or cause their respective directors, officers or employees to incur any Liability) with respect to the cooperation described in this Section 5.22, (iii) approve or enter into any agreement or binding commitment, (iv) provide (or to have any of their respective Representatives provide) any opinions or reliance letters, in each case, with respect to or in connection with the Financing or the Sale Leaseback Financing, or (v) execute or deliver, or take any corporate or other action to adopt or approve, any documents, agreement, certificate or instrument with respect to the Financing, including any pledge or security documents or closing certificates (other than (x) the execution of authorization and representation letters referred to in Section 5.22(a)(ii) and (y) to the extent necessary for the valid and enforceable execution of definitive Financing documentation, such cooperation as is reasonably necessary to facilitate the adoption of resolutions and consents, as applicable); provided that the foregoing clause (y) shall not prevent any of the officers or directors of any Purchased Company who will remain officers and/or directors of a Purchased Company immediately following the Closing from executing documents, agreements, resolutions, certificates and instruments that do not become effective until the ClosingAgreement.
(dc) Buyer shall indemnify and hold harmless Seller Parent, the Sellers and its Affiliatestheir Subsidiaries (other than, following the Closing, the Business Entities), and each of their respective directors, officers, employees, agents and other Representatives from and against any and all Liabilities suffered or incurred in connection with the arrangement of the Debt Financing or the Sale Leaseback Financing or any assistance or activities provided in connection therewith (other than historical information relating to the Business provided by Seller or its Affiliates in writing for the purpose of arranging the Debt Financing)therewith; provided, however, that the foregoing shall not apply in Seller’s Parent’s, the Sellers’ or its Affiliatestheir respective Subsidiaries’ or other Representatives’ willful misconduct or gross negligence. Buyer shall promptly reimburse Seller and its Affiliates Parent, the Sellers or the Business Entities for all documented out-of-pocket third party costs incurred by Seller and its Affiliates Parent, the Sellers or the Business Entities in connection with such cooperation.
(ed) Notwithstanding anything to the contrary herein, it is understood and agreed that the condition set forth in Section 8.02(a), as applied to Seller’s obligations under this Section 5.22, shall be deemed to be satisfied unless the Financing or the Sale Leaseback Financing has not been obtained as a result of Sellers’s breach of its obligations under this Section 5.22 to the extent such breach impairs or adversely affects the Financing or the Sale Leaseback Financing, including the execution, timing and pricing or cost thereof, in a material manner. Buyer acknowledges and agrees that obtaining the Debt Financing and the Sale Leaseback Financing are is not conditions a condition to Closing. None of Seller Parent, the Sellers or any of its Affiliates Non-Business Subsidiary shall have any obligations under this Section 5.22 5.16 following the consummation of the transactions contemplated hereby.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Aleris Corp), Purchase and Sale Agreement (Signature Group Holdings, Inc.)
Debt Financing Cooperation. (a) Seller shall, and shall 5.11.1 The Company will use all reasonable best efforts to, and to cause its Affiliates their respective officers, employees, advisors, including legal, financial and Representatives accounting advisors and other representatives (collectively, the “Company Representatives”) to, provide such cooperation in connection with the arrangement of the Debt Financing as is reasonably requested by BuyerParent; provided provided, that Seller and its Affiliates shall the Company will in no event be required to provide such assistance that shall will unreasonably interfere with their respective its business operations. Such assistance shall include, without limitation, will include the following, each of which shall will be at BuyerParent’s written request with reasonably practicable prior notice and at Buyer’s sole cost and expense:
(i) furnishing Buyer and its Financing Sources as promptly as practicable with (x) the financial statements and pro forma financial information referred to in the Commitment Letters (as in effect as of the date hereof) and (y) such other pertinent and customary financial and other information customarily delivered in connection with Buyer’s preparation of a customary bank book, confidential information memorandum, lender presentations, business projections and similar documents for financings that are similar to the Debt Financing and other marketing materials customarily used in connection with the syndication of financings that are similar to the Debt Financing reasonably requested by Buyer (including with respect to acquired entities) in order to market, syndicate and consummate the Debt Financing, and promptly provide Parent with any supplements to such information requested by Buyer pursuant to this clause (i);
(ii) 5.11.1.1. participation by the senior management team of the Business Company and the Company Representatives in the marketing activities undertaken in connection with the marketing of the Debt Financing, including (A) assisting in the preparation of a customary bank book, confidential information memorandum, lender presentations, business projections and similar documents (B) a reasonable number of meetings meetings, presentations and sessions with prospective lenders or debt investors, sessions and rating agencies;
5.11.1.2. assisting Parent with rating agencies for the Debt Financing and due diligence sessions and otherwise assisting in marketing efforts related to the Debt Financing including, without limitation, direct contact between senior management and representatives of the Business, on the one hand, and the financing sources, potential lenders and investors for the Debt Financing (including, without limitation, the Financing Sources), on the other hand; (C) providing to Buyer from time to time information regarding the Business reasonably requested by the financing sources (including, without limitation, the Financing Sources) and assisting with the preparation of appropriate and customary materials for rating agency presentations, offering presentations and syndication documents (including prospectuses, private placement memoranda, lender and investor presentations, bank information memoranda to the extent reasonable and similar documents)customary; 89887722_19 150326672.16
5.11.1.3. cooperating reasonably with the Financing Sources’ due diligence, (D) taking to the extent reasonable corporate actions, subject and customary;
5.11.1.4. cooperating reasonably to facilitate discussions with the Company’s existing lending and only effective upon the occurrence of the Closing, investment banking relationships;
5.11.1.5. providing access and information reasonably necessary requested by Parent to allow to permit the consummation of the Debt Financing; (E) providing customary authorization and/or representation letters in connection with the distribution of the bank information memoranda contemplated by the Debt Commitment Letter to prospective lenders and identifying any portion of the information therein that constitutes material non-public information regarding the Business, Seller or its Subsidiaries; provided that such letters and confirmations expressly state that (x) Seller shall not have any liability of any kind or nature resulting from the use of information in connection with their cooperation with arranging the Debt Financing and (y) the recipient of such letters of authorization shall be entitled to rely only on the representations and warranties contained Persons involved in the Debt Financing Documents; (F) assisting with to evaluate the preparation Company, including the Company’s current assets, cash management and negotiation ofaccounting systems, policies and facilitating procedures relating thereto for the execution purposes of establishing collateral arrangements, in each case, upon reasonable advance notice and delivery by the appropriate officers of any Purchased Company of, loan agreements, pledge at times and security documents locations to be agreed and other definitive documents and/or certificates contemplated by the Debt Commitment Letter; (G) have a senior financial officer of any Purchased Company execute as necessary and deliver to the Financing Sources a solvency certificate in substantially the form attached customary for financings similar to the Debt Commitment Letter; Financing;
5.11.1.6. providing (Ha) cooperating in the replacement or backstop of any outstanding letters of credit issued for the account of the Business or any Purchased Subsidiaries or any joint venture thereof; (I) furnish Buyer and the Financing Sources at least five four (4) Business Days prior to the Closing Date with all Date, documentation and other information with respect to the Business and any Purchased Subsidiaries required reasonably requested by the Debt Commitment Letter required Financing Sources under applicable “know your know-your-customer” and anti-money laundering laws, rules and regulations; (b) agreements, including documents or certificates that facilitate the U.S. PATRIOT Act creation, perfection or enforcement, in each case as of the Closing, of Liens securing the Debt Financing or other customary certificates or documents as may be reasonably requested by Parent and otherwise reasonably facilitating the pledging of collateral; provided that the effectiveness of any documentation executed by the Company or any of its Subsidiary will be subject to the occurrence of the Closing; (c) customary certificates or other documents and instruments as may be reasonably requested by Parent, as in each such case, necessary and customary in connection with the Debt Financing; and (d) customary payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of all indebtedness and Liens of the Company in accordance with the Debt Commitment Letter, subject to the occurrence of the Closing; and
5.11.1.7. to the extent reasonably requested by Parent, assisting in the preparation of definitive financing documents as customarily required by the Financing Sources (including with respect to preparation of schedules and customary certificates). Notwithstanding the foregoing, (A) no obligation of the Company or any of its Subsidiaries under any certificate, agreement, document or instrument (other than the authorization and representation letters referred to above) will be effective until the Closing, (B) none of the Company or any of its Subsidiaries will be required to take any action under any such certificate, agreement, document or instrument that is not less than 10 days contingent upon the Closing (including the entry into any agreement that is effective before the Closing) or that would be effective prior to the Closing Date; Effective Time, and (JC) consenting in no event will this Section 5.11.1 be deemed or construed to require cooperation to the use extent such cooperation would interfere unreasonably with the business or operations of the logos Company or any of its Subsidiaries or jeopardize the health and safety of any employee of the Business so long as such use is not reasonably likely to harm or disparage the Business Company or its reputationSubsidiaries in light of the COVID-19 pandemic (provided, goodwill, products, services, offerings or intellectual property rights; (K) obtaining customary payoff letters and related documents and instruments relating to that 89887722_19 150326672.16 the repayment of any exiting third party indebtedness for borrowed money required by the Debt Commitment Letter to be repaid on or coincidental with Closing; and (L) supplementing the information covered by this Section 5.22(a)(ii) on a current basis if such supplement is necessary to ensure that such information does not contain an untrue statement of a material fact or omit to state any material fact necessary to make such information not misleading; and
(iii) taking such actions as are reasonably requested by Buyer or its Financing Sources to facilitate the satisfaction on a timely basis of all Financing Conditions that are within its control.
(b) Seller Company will use its reasonable best efforts, efforts to allow for such access or disclosure in a manner that does not jeopardize such health and will cause safety).
5.11.2 Parent shall use its Subsidiaries to use their commercially reasonable best efforts, efforts to provide the Company with the ability to Buyer and its Financing Sources such information as may be necessary so that review any projections or forward-looking financial statements (except to the information extent prepared by or on behalf of the Company) contained in any marketing materials prepared after the date of this Agreement, if any, used in connection with the Debt Financing (including the marketing thereof) is complete and correct in all material respects and does not contain any untrue statement syndication of a material fact or omit to state a material fact necessary to make the statements contained therein, in the light of the circumstances under which such statements are made, not misleading.
(c) Seller shall have the right to review and comment on marketing materials related to the Debt Financing prior to the dissemination of such materials to potential lenders or other counterparties to any proposed financing transaction (or filing with any Governmental Authority)transaction; provided, that Seller shall the Company will communicate in writing their its comments, if any, to Buyer Parent and its counsel within a reasonable period of time under the circumstances and consistent with the time accorded to other participants who were asked to review and comment on such materials. Notwithstanding anything in this Section 5.22 three Business Days after drafts are provided to the contrary, neither Seller nor any of its Affiliates shall Company. The Company will not be required to (i) pay agree to any commitment fee or similar fee, (ii) except in contractual obligation relating to the case of the Purchased Companies following Financing that is not conditioned upon the Closing and that does not terminate without liability to the execution Company and its Affiliates upon the termination of authorization and representation letters referred this Agreement. The Company will not be required to in Section 5.22(a)(ii), incur any Liability (deliver or cause their respective directorsthe delivery of any legal opinions or, officers or employees to incur any Liabilityother than as specified in clause (a) with respect to the cooperation described in this Section 5.22above, (iii) approve or enter into any agreement or binding commitment, (iv) provide (or to have any of their respective Representatives provide) any opinions or reliance letters, in each case, with respect to or letters in connection with the Financing or the Sale Leaseback Debt Financing, or (v) execute or deliver, or take any corporate or other action to adopt or approve, any documents, agreement, certificate or instrument with respect to the Financing, including any pledge or security documents or closing certificates (other than (x) the execution of authorization and representation letters referred to in Section 5.22(a)(ii) and (y) to the extent necessary for the valid and enforceable execution of definitive Financing documentation, such cooperation as is reasonably necessary to facilitate the adoption of resolutions and consents, as applicable); provided that the foregoing clause (y) shall not prevent any of the officers or directors of any Purchased Company who will remain officers and/or directors of a Purchased Company immediately following the Closing from executing documents, agreements, resolutions, certificates and instruments that do not become effective until the Closing.
(d) Buyer shall 5.11.3 Parent will indemnify and hold harmless Seller the Company and its AffiliatesSubsidiaries, and each of their respective directorsthe Company Representatives, officers, employees, agents and other Representatives from and against any and all Liabilities liabilities, costs or expenses suffered or incurred in connection with the arrangement of the Debt Financing or the Sale Leaseback Financing or any assistance or activities provided in connection therewith (other than historical information relating to the Business provided by Seller or its Affiliates in writing for the purpose of arranging the Debt Financing, including pursuant to Section 5.11.1 (the “Reimbursement Obligations”); provided, however, that the foregoing shall will not apply in Sellerthe Company’s or its Affiliates’ Subsidiaries’, or other any of their respective Company Representatives’ ’, willful misconduct misconduct, intentional misrepresentation, fraud, or gross negligence. Buyer shall Parent will promptly reimburse Seller and its Affiliates the Company for all reasonable and documented out-of-pocket third third-party costs and expenses incurred by Seller and its Affiliates the Company in connection with such cooperation.
(e) Notwithstanding anything to the contrary herein, it is understood and agreed that the condition assistance set forth in Section 8.02(a)5.11.
5.11.4 The Company consents to the use of its and its Subsidiaries’ logos by Parent, as applied to Seller’s obligations under this Section 5.22, shall be deemed to be satisfied unless the Financing or Sources and their Representatives in connection with the Sale Leaseback Debt Financing has not been obtained as a result of Sellers’s breach of its obligations under this Section 5.22 to the extent such breach impairs or adversely affects the Financing or the Sale Leaseback Financing, including the execution, timing and pricing or cost thereof, in a material manner. Buyer acknowledges and agrees manner customary for such financing transactions; provided, that obtaining such logos are used solely in a manner that is not intended to or reasonably expected to harm or disparage the Financing and the Sale Leaseback Financing are not conditions to Closing. None of Seller Company or any of its Affiliates shall have any obligations under this Section 5.22 following Subsidiaries or the consummation reputation or goodwill of the transactions contemplated herebyCompany or any of its Subsidiaries.
Appears in 2 contracts
Samples: Merger Agreement (SMTC Corp), Merger Agreement (SMTC Corp)
Debt Financing Cooperation. (a) Prior to the Closing, Seller shall, shall cause its Subsidiaries to, and shall use all its reasonable best efforts (including by seeking to enforce its rights under the Merger Agreement) to cause Tribune and its Affiliates and Representatives Subsidiaries to, use commercially reasonable efforts to provide such customary cooperation as is reasonably requested by Buyer in connection with the arrangement of the Debt Financing as is reasonably requested by Buyer; (provided that Seller and its Affiliates shall in no event be required to provide such assistance that shall unreasonably interfere with requested cooperation does not (a) require Seller, Tribune or any of their respective business operations. Such assistance shall includeSubsidiaries to take any action that would violate any Laws or would result in a violation or breach by Seller Tribune or any of their respective Subsidiaries, without limitationor default under, the following, each of any Contract to which shall be at Buyer’s request with reasonably practicable prior notice and at Buyer’s sole cost and expense:
(i) furnishing Buyer and its Financing Sources as promptly as practicable with (x) the financial statements and pro forma financial information referred to in the Commitment Letters (as in effect such Person is a party as of the date hereofhereof or (b) and result in any officer, manager or director of Seller, Tribune or any of their respective Subsidiaries incurring any personal liability), including by using commercially reasonable efforts to: (yi) [reserved], (ii) furnish to Buyer as promptly as reasonably practicable the Required Information, (iii) provide upon the reasonable request of Buyer such other pertinent and customary financial and other information customarily delivered in connection with Buyer’s preparation of reasonably necessary to prepare a customary bank book, confidential information memorandum, lender presentations, business projections and similar documents for financings that are similar to the Debt Financing and other marketing materials customarily used in connection with the syndication of financings that are similar to the Debt Financing reasonably requested by Buyer memorandum (including with respect a version that does not include material non-public information (provided Seller shall not be required to acquired entities) in order to market, syndicate and consummate determine whether any information provided by Seller constitutes material non-public information for the Debt Financing, )) and promptly provide Parent with any supplements other customary materials reasonably required to such information requested by Buyer pursuant to this clause (i);
(ii) participation by complete the senior management team of the Business in the marketing activities undertaken in connection with the marketing of the Debt Financingsyndication, including a customary authorization letter, (Aiv) assisting assist Buyer in the preparation of a customary bank book, confidential information memorandum, lender presentations, business projections and similar documents (BA) a reasonable number of meetings with prospective lenders or debt investors, sessions with rating agencies for the Debt Financing and due diligence sessions and otherwise assisting in marketing efforts related to the Debt Financing including, without limitation, direct contact between senior management and representatives of the Business, on the one hand, and the financing sources, potential lenders and investors for the Debt Financing (including, without limitation, the Financing Sources), on the other hand; (C) providing to Buyer from time to time information regarding the Business reasonably requested by the financing sources (including, without limitation, the Financing Sources) and assisting with the preparation of appropriate and customary materials for rating agency presentationsand investor presentations (including “roadshow” or investor meeting slides), registration statements, offering and syndication documents (including memoranda, prospectuses, private placement memoranda, lender and investor presentations, bank information memoranda other customary marketing materials and similar documents)(B) definitive documentation for the Debt Financing, (Dv) taking reasonable corporate actions, subject cooperate to and only effective upon facilitate the occurrence of the Closing, reasonably necessary to permit the consummation due diligence efforts of the Debt Financing; (E) providing customary authorization and/or representation letters in connection with the distribution of the bank information memoranda contemplated by the Debt Commitment Letter Financing Sources relating to prospective lenders and identifying any portion of the information therein that constitutes material non-public information regarding the Business, Seller or its to the extent customary and reasonable and not unreasonably interfering with the business of Seller, Tribune and their respective Subsidiaries; provided that such letters and confirmations expressly state that , (xvi) Seller shall not have any liability facilitate the release of any kind or nature resulting from Liens on the use Purchased Assets and the termination of information all guarantees (if any) in connection with their cooperation with arranging therewith at, and subject to the Debt Financing occurrence of, the Closing and (yvii) the recipient of such letters of authorization shall be entitled to rely only on the representations and warranties contained in the Debt Financing Documents; (F) assisting with the preparation and negotiation of, and facilitating the execution and delivery by the appropriate officers of any Purchased Company of, loan agreements, pledge and security documents and other definitive documents and/or certificates contemplated by the Debt Commitment Letter; (G) have a senior financial officer of any Purchased Company execute and deliver to the Financing Sources a solvency certificate in substantially the form attached to the Debt Commitment Letter; (H) cooperating in the replacement or backstop of any outstanding letters of credit issued for the account of the Business or any Purchased Subsidiaries or any joint venture thereof; (I) furnish Buyer and the Financing Sources provide at least five three (3) Business Days prior to the Closing Date with Date, all documentation and other information with respect to the Business and any Purchased Subsidiaries as is required by the Debt Commitment Letter required under applicable “know your customer” and anti-money laundering laws, rules and regulations including the USA PATRIOT and beneficial ownership regulations, including the U.S. PATRIOT Act to the extent reasonably requested not less than 10 days by Buyer at least ten (10) Business Days prior to the Closing Date; (J) consenting . Notwithstanding anything in this Agreement to the use of the logos of the Business so long as contrary, (1) no such use is not reasonably likely to harm or disparage the Business or its reputation, goodwill, products, services, offerings or intellectual property rights; (K) obtaining customary payoff letters and related documents and instruments relating cooperation shall be required to the repayment extent that it would require Seller, Tribune or any of their respective Subsidiaries to take any exiting third party indebtedness for borrowed money action that in the good faith judgment of Seller unreasonably interferes with the ongoing business operation of Seller, Tribune and/or their respective Subsidiaries or would require any directors, officers or employees to attend any bank meeting, rating agency presentation, roadshows or other marketing activities (other than, by any station managers who will continue to be employed by Buyer after the Closing), (2) none of Seller, Tribune or any of their respective Subsidiaries shall be required by to pay any commitment or other fee or incur any other liability or obligation in connection with the Debt Commitment Letter Financing, (3) none of Seller, Tribune or any of their respective Subsidiaries shall be required to do anything that would cause the representation or warranty of Seller in this Agreement to be repaid on breached or coincidental with Closing; any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement by Seller and (L4) supplementing none of Seller, Tribune or any of their respective Subsidiaries or their respective director, officer or employee shall be required to execute or deliver or have any liability or obligation under any loan agreement or any related document or any other agreement or document (including any certificates, legal opinions or pledge or security documents) related to the information covered Debt Financing. Buyer shall promptly, upon request by Seller, reimburse Seller for all reasonable and invoiced out-of-pocket costs (including reasonable attorneys’ fees) incurred by Seller, Tribune or any of their respective Subsidiaries in connection with the cooperation of Seller and its Affiliates contemplated by this Section 5.22(a)(ii) on a current basis if such supplement is necessary 5.7. All non-public or other confidential information provided by Seller, Tribune or any of their respective Subsidiaries pursuant to ensure this Agreement will be kept confidential in accordance with the Confidentiality Agreement, except that Buyer will be permitted to disclose such information does not contain an untrue statement of a material fact or omit to state any material fact necessary to make such information not misleading; and
(iii) taking such actions as are reasonably requested by Buyer or its Debt Financing Sources to facilitate the satisfaction on a timely basis of all Financing Conditions that are within its control.
(b) Seller will use its reasonable best efforts, and will cause its Subsidiaries to use their reasonable best efforts, to provide to Buyer and its or prospective Debt Financing Sources such information as and other financial institutions and investors that may be necessary so that become parties to the information prepared Debt Financing and to any underwriters, initial purchasers, lead arrangers or placement agents in connection with the Debt Financing (including the marketing thereof) is complete and correct in all material respects and does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein, in the light of the circumstances under which such statements are made, not misleading.
(c) Seller shall have the right to review and comment on marketing materials related to the Debt Financing prior to the dissemination of such materials to potential lenders or other counterparties to any proposed financing transaction (or filing with any Governmental Authority); provided, that Seller shall communicate in writing their comments, if any, to Buyer and its counsel within a reasonable period of time under the circumstances and consistent with the time accorded to other participants who were asked to review and comment on such materials. Notwithstanding anything in this Section 5.22 to the contrary, neither Seller nor any of its Affiliates shall be required to (i) pay any commitment fee or similar fee, (ii) except in the case of the Purchased Companies following the Closing and the execution of authorization and representation letters referred to in Section 5.22(a)(ii), incur any Liability (or cause their respective directors, officers or employees to incur any Liability) with respect to the cooperation described in this Section 5.22, (iii) approve or enter into any agreement or binding commitment, (iv) provide (or to have any of their respective Representatives provide) any opinions or reliance lettersand, in each case, with respect to or in connection with the Financing or the Sale Leaseback Financing, or (vtheir respective counsel and auditors) execute or deliver, or take any corporate or other action to adopt or approve, any documents, agreement, certificate or instrument with respect to the Financing, including any pledge or security documents or closing certificates (other than so long as such Persons (x) agree to be bound by the execution of authorization and representation letters referred Confidentiality Agreement as if parties thereto or other confidentiality obligations that are substantially similar to those contained in Section 5.22(a)(ii) and the Confidentiality Agreement or (y) are subject to the extent necessary for the valid and enforceable execution of definitive Financing documentationcustomary confidentiality arrangements, such cooperation as is reasonably necessary to facilitate the adoption of resolutions and consents, as applicable); provided that the foregoing clause (y) shall not prevent any of the officers or directors of any Purchased Company who will remain officers and/or directors of a Purchased Company immediately following the Closing from executing documents, agreements, resolutions, certificates and instruments that do not become effective until the Closing.
(d) Buyer shall indemnify and hold harmless Seller and its Affiliates, and each of their respective directors, officers, employees, agents and other Representatives from and against any and all Liabilities suffered or incurred in connection with the arrangement of the Debt Financing or the Sale Leaseback Financing or any assistance or activities provided in connection therewith (other than historical information relating to the Business provided by Seller or its Affiliates in writing for the purpose of arranging the Debt Financing); provided, however, that the foregoing shall not apply in Seller’s or its Affiliates’ or other Representatives’ willful misconduct or gross negligence. confidentiality undertakings reasonably satisfactory to Buyer shall promptly reimburse Seller and its Affiliates for all documented out-of-pocket third party costs incurred by Seller and its Affiliates in connection with such cooperationof which Buyer is a beneficiary.
(e) Notwithstanding anything to the contrary herein, it is understood and agreed that the condition set forth in Section 8.02(a), as applied to Seller’s obligations under this Section 5.22, shall be deemed to be satisfied unless the Financing or the Sale Leaseback Financing has not been obtained as a result of Sellers’s breach of its obligations under this Section 5.22 to the extent such breach impairs or adversely affects the Financing or the Sale Leaseback Financing, including the execution, timing and pricing or cost thereof, in a material manner. Buyer acknowledges and agrees that obtaining the Financing and the Sale Leaseback Financing are not conditions to Closing. None of Seller or any of its Affiliates shall have any obligations under this Section 5.22 following the consummation of the transactions contemplated hereby.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Nexstar Media Group, Inc.)
Debt Financing Cooperation. (a) Seller shall, and The Company shall use all commercially reasonable best efforts to cause its Affiliates and Representatives to, provide such cooperation in connection with the arrangement of the Debt Financing as is customary for similar debt financings and is reasonably requested by BuyerParent; provided provided, that Seller and its Affiliates (i) the Company shall in no event be required to provide any such assistance that shall could reasonably be expected to unreasonably or materially interfere with their respective its business operations, (ii) neither the Parent nor any of its Financing Sources shall have the right to perform any investigative procedures that involve damage to any property or other assets of the Company or its Subsidiaries, and (iii) nothing herein shall require the Company or any of its Subsidiaries to furnish any information not customarily required for completion of debt financings similar to the Debt Financing. Such assistance shall include, without limitationbut not be limited to, the following, each of which shall be at BuyerParent’s written request with reasonably practicable reasonable prior notice and at Buyer’s sole cost and expensenotice:
(i) furnishing Buyer and its Financing Sources as promptly as practicable with (x) the financial statements and pro forma financial information referred to in the Commitment Letters (as in effect as of the date hereof) and (y) such other pertinent and customary financial and other information customarily delivered in connection with Buyer’s preparation of a customary bank book, confidential information memorandum, lender presentations, business projections and similar documents for financings that are similar to the Debt Financing and other marketing materials customarily used in connection cooperation with the syndication of financings that are similar to the Debt Financing reasonably requested Sources’ due diligence, including participation in due diligence sessions conducted by Buyer (including with respect to acquired entities) in order to market, syndicate and consummate the Debt Financing, and promptly provide Parent with any supplements to such information requested by Buyer pursuant to this clause (i)conference call;
(ii) participation by the senior management team of the Business Company in the customary marketing activities undertaken in connection with the marketing of the Debt Financing, including (A) assisting in the preparation of a customary bank bookmarketing material and authorization letters and participation in due diligence sessions related thereto, confidential information memorandum, lender presentations, business projections and similar documents (B) a reasonable number of road shows and meetings with prospective lenders or and debt investors;
(iii) participation by senior management of the Company in, sessions and assistance with, the preparation of rating agency presentations and meetings with rating agencies for agencies, if necessary;
(iv) delivery to Parent of the Financing Information and such other financial information and other pertinent information regarding the Company and its Subsidiaries and their respective businesses as Parent may reasonably request in connection with the preparation of such marketing materials, road show presentations or rating agency presentations;
(v) participation by senior management of the Company in the negotiation of the Debt Financing Documents;
(vi) preparation and due diligence sessions delivery of all documentation and otherwise assisting in marketing efforts related other information required by regulatory authorities under applicable “know your customer,” beneficial ownership and anti-money laundering rules and regulations, including the PATRIOT Act, to the extent requested by the Financing Sources;
(vii) taking such corporate actions as shall be reasonably requested by Parent (which actions shall not be effective prior to the Closing) to authorize and direct persons who shall remain officers or directors of the Company or any of its Subsidiaries after the Closing to take such actions as Parent or the Financing Sources shall reasonably request to facilitate the consummation of the Debt Financing includingon the Closing Date, without limitation, direct contact between senior management including (subject to and representatives contingent upon the Closing) the execution by and on behalf of the BusinessCompany or any of its Subsidiaries, as applicable, security agreements, financing statements and other documents and instruments, in forms appropriate for filing, necessary to pledge, grant security interests in, and otherwise establish liens on the one handassets of the Company and its Subsidiaries;
(viii) the taking of such other actions and the execution and delivery of such other certificates, documents and instruments, containing such certifications, representations, covenants and agreements, by officers of the Company as Parent or Parent’s Financing Sources may reasonably request in connection with the Debt Financing; provided, however, that (1) no obligation of the Company or any of its Subsidiaries under any such certificate, document or instrument, nor any authorizing resolutions in respect of the same, shall be effective until the Closing, it being understood that all such obligations and authorizations shall be based on authorizations (including the appointment of directors and authorized officers) provided by, and derived exclusively from the financing sourcesauthority of, potential lenders Parent as the controlling equityholder of the Company as constituted after giving effect to the Closing; (2) none of the Company or any of its Subsidiaries shall be required to take any action under any certificate, document or instrument that is not contingent upon the Closing (including the entry into any agreement that is effective before the Closing), that does not terminate without liability to the Company upon the termination of this Agreement or that would be effective prior to the Closing; and investors for (3) the foregoing provisions shall not require cooperation to the extent it would (I) interfere unreasonably with the business or operations of the Company or any of its Subsidiaries, (II) cause any condition to Closing to not be satisfied or otherwise cause any breach of this Agreement (including any representations or warranties thereunder), (III) cause the Company or any of its Subsidiaries to incur liability in connection with the Financing prior to the Effective Time, (IV) result in the material contravention of, or that could reasonably be expected to result in a material violation or breach of, or a default under, any Laws, under any material Contract or under any confidentiality arrangement to which the Company or any of its Subsidiaries is a party in effect on the date hereof, (V) require the Company to undertake any actions that the Company reasonably believes could result in the loss of any legal or other applicable privilege, (VI (provided that, in the case of any confidentiality obligation, the Company shall, to the extent permitted by such confidentiality arrangement, notify Parent if any information that Parent or any Financing Source has specifically requested is being withheld as a result of any such obligation of confidentiality), require the Company to provide access to or disclose information that the Company determines would jeopardize any attorney-client privilege of the Company or any of its Subsidiaries or would otherwise be restricted from disclosure in accordance with the proviso in Section 5.02(a), (VII) require the Company to deliver or cause the delivery of any legal opinions or accountants’ comfort letters or reliance letters in connection with the Debt Financing Financing, (VIII) require the Company to conduct any intrusive, destructive or invasive physical testing (including, without limitation, any Phase II environmental testing) of any owned real estate, (IX) require the Financing Sources)Company or any of its Subsidiaries to prepare separate financial statements for any of the Company’s Subsidiaries or to change any fiscal period, on (X) require the other hand; Company to amend any terms of this Agreement, (CXI) providing require the Company or any of its Subsidiaries to Buyer from time take any action that would subject any director, manager, partner, officer or employee of the Company or any of its Subsidiaries to time information regarding any actual or potential personal liability, or (XII) require the Business reasonably requested by Company or any of its Subsidiaries to make any representations, warranties or certifications as to which, after the financing sources (includingCompany’s use of commercially reasonable efforts to cause such representation, without limitationwarranty or certification to be true, the Financing SourcesCompany has determined that such representation, warranty or certification is not true. Notwithstanding anything to the contrary elsewhere in this Agreement, neither the Company nor any Subsidiary thereof shall be required to pay any commitment or other similar fee or make any other payment or incur any other expense or liability (other than the reasonable costs of providing the cooperation, authorization letters and other documents and information required by this Section 5.20(a)) and assisting or provide or agree to provide any indemnity in connection with the preparation of appropriate and customary materials for rating agency presentations, offering and syndication documents (including prospectuses, private placement memoranda, lender and investor presentations, bank information memoranda and similar documents), (D) taking reasonable corporate actions, subject to and only effective upon the occurrence of the Closing, reasonably necessary to permit the consummation of the Debt Financing; , except for any such obligation, liability or indemnity that is not effective unless and until the Closing occurs.
(Eb) providing customary authorization and/or representation The Company shall not be required to agree to any contractual obligation relating to the Debt Financing that is not conditioned upon the Closing and that does not terminate without liability to the Company and its affiliates upon the termination of this Agreement. The Company shall not be required to deliver or cause the delivery of any legal opinions or reliance letters in connection with the distribution of the bank information memoranda contemplated by the Debt Commitment Letter to prospective lenders and identifying any portion of the information therein that constitutes material non-public information regarding the Business, Seller or its Subsidiaries; provided that such letters and confirmations expressly state that (x) Seller shall not have any liability of any kind or nature resulting from the use of information in connection with their cooperation with arranging the Debt Financing and (y) the recipient of such letters of authorization shall be entitled to rely only on the representations and warranties contained in the Debt Financing Documents; (F) assisting with the preparation and negotiation of, and facilitating the execution and delivery by the appropriate officers of any Purchased Company of, loan agreements, pledge and security documents and other definitive documents and/or certificates contemplated by the Debt Commitment Letter; (G) have a senior financial officer of any Purchased Company execute and deliver to the Financing Sources a solvency certificate in substantially the form attached to the Debt Commitment Letter; (H) cooperating in the replacement or backstop of any outstanding letters of credit issued for the account of the Business or any Purchased Subsidiaries or any joint venture thereof; (I) furnish Buyer and the Financing Sources at least five Business Days prior to the Closing Date with all documentation and other information with respect to the Business and any Purchased Subsidiaries required by the Debt Commitment Letter required under applicable “know your customer” and anti-money laundering laws, rules and regulations, including the U.S. PATRIOT Act to the extent requested not less than 10 days prior to the Closing Date; (J) consenting to the use of the logos of the Business so long as such use is not reasonably likely to harm or disparage the Business or its reputation, goodwill, products, services, offerings or intellectual property rights; (K) obtaining customary payoff letters and related documents and instruments relating to the repayment of any exiting third party indebtedness for borrowed money required by the Debt Commitment Letter to be repaid on or coincidental with Closing; and (L) supplementing the information covered by this Section 5.22(a)(ii) on a current basis if such supplement is necessary to ensure that such information does not contain an untrue statement of a material fact or omit to state any material fact necessary to make such information not misleading; and
(iii) taking such actions as are reasonably requested by Buyer or its Financing Sources to facilitate the satisfaction on a timely basis of all Financing Conditions that are within its control.
(b) Seller will use its reasonable best efforts, and will cause its Subsidiaries to use their reasonable best efforts, to provide to Buyer and its Financing Sources such information as may be necessary so that the information prepared in connection with the Debt Financing (including the marketing thereof) is complete and correct in all material respects and does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein, in the light of the circumstances under which such statements are made, not misleadingFinancing.
(c) Seller shall have the right to review and comment on marketing materials related to the Debt Financing prior to the dissemination of such materials to potential lenders or other counterparties to any proposed financing transaction (or filing with any Governmental Authority); provided, that Seller shall communicate in writing their comments, if any, to Buyer and its counsel within a reasonable period of time under the circumstances and consistent with the time accorded to other participants who were asked to review and comment on such materials. Notwithstanding anything in this Section 5.22 to the contrary, neither Seller nor any of its Affiliates shall be required to (i) pay any commitment fee or similar fee, (ii) except in the case of the Purchased Companies following the Closing and the execution of authorization and representation letters referred to in Section 5.22(a)(ii), incur any Liability (or cause their respective directors, officers or employees to incur any Liability) with respect to the cooperation described in this Section 5.22, (iii) approve or enter into any agreement or binding commitment, (iv) provide (or to have any of their respective Representatives provide) any opinions or reliance letters, in each case, with respect to or in connection with the Financing or the Sale Leaseback Financing, or (v) execute or deliver, or take any corporate or other action to adopt or approve, any documents, agreement, certificate or instrument with respect to the Financing, including any pledge or security documents or closing certificates (other than (x) the execution of authorization and representation letters referred to in Section 5.22(a)(ii) and (y) to the extent necessary for the valid and enforceable execution of definitive Financing documentation, such cooperation as is reasonably necessary to facilitate the adoption of resolutions and consents, as applicable); provided that the foregoing clause (y) shall not prevent any of the officers or directors of any Purchased Company who will remain officers and/or directors of a Purchased Company immediately following the Closing from executing documents, agreements, resolutions, certificates and instruments that do not become effective until the Closing.
(d) Buyer Parent shall indemnify and hold harmless Seller the Company and its AffiliatesSubsidiaries, and each of their respective directors, officers, employees, agents and other Representatives Representatives, from and against any and all Liabilities liabilities, costs or expenses suffered or incurred in connection with the arrangement of the Debt Financing or the Sale Leaseback Financing or any assistance or activities provided in connection therewith (other than historical information relating to therewith. Parent shall reimburse the Business provided by Seller or its Affiliates in writing for the purpose of arranging the Debt Financing); provided, however, that the foregoing shall not apply in Seller’s or its Affiliates’ or other Representatives’ willful misconduct or gross negligence. Buyer shall promptly reimburse Seller and its Affiliates Company for all documented out-of-pocket third third-party costs and expenses incurred by Seller and the Company in complying with its Affiliates in connection with such cooperationobligations under Section 5.20(a) upon the earlier of the Closing Date or any termination of this Agreement.
(ed) Notwithstanding anything to the contrary herein, it is understood and agreed that the condition precedent set forth in Section 8.02(a6.02(b), as applied to Sellerthe Company’s obligations under this Section 5.225.20, shall be deemed to be satisfied unless the Financing or the Sale Leaseback Debt Financing has not been obtained as a direct result of Sellersthe Company’s breach of its obligations under this Section 5.22 to the extent such breach impairs or adversely affects the Financing or the Sale Leaseback Financing, including the execution, timing and pricing or cost thereof, in a material manner5.20. Buyer Parent acknowledges and agrees that obtaining the Financing and the Sale Leaseback Financing are is not conditions a condition to Closing. None For the avoidance of Seller doubt, if the Financing has not been obtained, Parent shall continue to be obligated, until such time as this Agreement is terminated in accordance with its terms and subject to the waiver or any fulfillment of its Affiliates shall have any obligations under this the conditions set forth in Section 5.22 following the consummation of 6.01 and Section 6.03, to complete the transactions contemplated herebyby this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (SPAR Group, Inc.), Merger Agreement (SPAR Group, Inc.)
Debt Financing Cooperation. (a) Prior to the Closing, Seller shall, and shall cause its Affiliates (including the Company and the Company Subsidiaries) to, and shall use all its reasonable best efforts to cause its Affiliates and Representatives their representatives to, provide to Investor such cooperation reasonably requested by Investor to assist Investor in causing the conditions in the Debt Financing Commitment to be satisfied and such cooperation as is otherwise necessary or reasonably requested by Investor in connection with the arrangement of Company obtaining the Debt Financing in accordance with its terms, including cooperation that consists of:
(1) participating in a customary and reasonable number of meetings, presentations, road shows, due diligence sessions, drafting sessions and sessions with rating agencies;
(2) providing authorization letters to Financing Sources authorizing the distribution of information to prospective lenders or investors;
(3) executing and delivering any securities purchase agreement, credit agreement, indentures, notes, guarantees, pledge and security documents, supplemental indentures, currency or interest hedging arrangements, other definitive financing documents, a certificate of the chief financial officer of the Business or another officer of Seller Parent or its subsidiaries reasonably satisfactory to the Financing Sources with respect to solvency of the Borrower and its Subsidiaries (after giving effect to the Reorganization) on a consolidated basis, a customary “borrowing base” certificate, and other certificates or documents and back-up therefor and for legal opinions as is may be reasonably requested by BuyerInvestor or Financing Sources (including consents of accountants for use of their reports in any materials relating to the Debt Financing) and otherwise reasonably facilitating the pledging of collateral; provided that Seller and its Affiliates none of the Company or Company Subsidiaries or any of their respective officers or employees shall in no event be required to provide such assistance or execute any document in connection with this Section 4.13(a)(3) which document would be effective at any time before the time that shall unreasonably interfere will be immediately prior to the Closing;
(4) (A) furnishing Investor and its Financing Sources as promptly as practicable with their respective business operations. Such assistance shall include, without limitation, unaudited combined balance sheets and related statements of income and cash flows of the following, Business prepared in accordance with GAAP for each fiscal quarter ended after the close of which shall be at Buyer’s request with reasonably practicable prior notice its most recent fiscal year and at Buyer’s sole cost least 45 days prior to the Closing Date and expense:
for the comparable quarter of the prior fiscal year, (iB) furnishing Buyer Investor and its Financing Sources as promptly as practicable with (xI) the all financial statements and pro forma financial information referred prepared in accordance with GAAP, financial data, audit reports and other information regarding the Business of the type that would be required by Regulation S-X and Regulation S-K promulgated under the Securities Act for a registered public offering of non-convertible debt securities of the Company (including for the Company’s preparation of pro forma financial statements), to the extent the same is of the type and form customarily included in an offering memorandum for private placements of non-convertible high-yield bonds under Rule 144A promulgated under the Securities Act, or otherwise necessary to receive from the Company’s independent accountants (and any other accountant to the extent financial statements audited or reviewed by such accountants are or would be included in such offering memorandum) customary “comfort” (including “negative assurance” comfort), together with drafts of customary comfort letters that such independent accountants are prepared to deliver upon Closing, with respect to the financial information to be included in such offering memorandum and which, with respect to any interim financial statements, shall have been reviewed by the Company’s independent accountants as provided in AU 722, and (II) a draft customary “10b-5” disclosure letter with respect to the offering memoranda in respect of the Debt Financing from counsel to the Company; (C) assisting Investor in the Commitment Letters preparation of customary rating agency presentations, lender presentations and high yield road show presentations or memoranda, customary bank offering memoranda, syndication memoranda, private offering memoranda, and other marketing materials or memoranda, including business and financial projections reasonably requested by Investor, in each case, required in connection with the Debt Financing (as in effect as the “Offering Materials”) and (D) furnishing Investor and its Financing Sources completed field audits and appraisals satisfactory to Investor’s Financing Sources of the date hereofcustomer Accounts Receivable and Inventory of the Business suitable to be pledged as collateral for an asset-based loan facility to be established pursuant to the Debt Financing Commitments (all such information in this clause (4), together with any replacements or restatements thereof, and supplements thereto, if any such information would go stale or otherwise be unusable for such purposes the “Required Information”);
(5) using reasonable best efforts to cooperate with Investor and Investor’s efforts to obtain customary and reasonable corporate and facilities ratings, consents, landlord waivers and estoppels, non disturbance agreements, non-invasive environmental assessments, legal opinions, surveys and title insurance (including providing reasonable access to Investor and its representatives to all Owned Real Property and Leased Real Property) as reasonably requested by Investor;
(6) taking all actions reasonably necessary to (x) permit Financing Sources to evaluate the Company’s and the Company Subsidiaries’ current assets, inventory, cash management and accounting systems, policies and procedures relating thereto for the purpose of establishing collateral arrangements to the extent customary and reasonable and (y) such other pertinent and customary financial establish bank and other information customarily delivered in connection with Buyer’s preparation of a customary bank book, confidential information memorandum, lender presentations, business projections accounts and similar documents for financings that are similar to the Debt Financing blocked account agreements and other marketing materials customarily used lock box arrangements in connection with the syndication of financings foregoing, provided that are similar such agreements and arrangements will only be effective upon the Closing;
(7) granting Financing Sources, on reasonable terms and upon reasonable request, at reasonable times and on reasonable notice, access to the Debt Financing reasonably requested by Buyer Company’s and the Company Subsidiaries’ respective properties, assets and cash management and accounting systems (including with respect to acquired entities) cooperating in order to marketand facilitating the completion of field examinations, syndicate collateral audits, asset appraisals, surveys, Phase I environmental site assessments and consummate the Debt Financing, and promptly provide Parent with any supplements to such information requested by Buyer pursuant to this clause (iengineering/property condition reports);
(ii) participation by the senior management team of the Business in the marketing activities undertaken in connection with the marketing of the Debt Financing, including (A) assisting in the preparation of a customary bank book, confidential information memorandum, lender presentations, business projections and similar documents (B) a reasonable number of meetings with prospective lenders or debt investors, sessions with rating agencies for the Debt Financing and due diligence sessions and otherwise assisting in marketing efforts related to the Debt Financing including, without limitation, direct contact between senior management and representatives of the Business, on the one hand, and the financing sources, potential lenders and investors for the Debt Financing (including, without limitation, the Financing Sources), on the other hand; (C) providing to Buyer from time to time information regarding the Business 8) taking all corporate actions reasonably requested by the financing sources (including, without limitation, the a Financing Sources) and assisting with the preparation of appropriate and customary materials for rating agency presentations, offering and syndication documents (including prospectuses, private placement memoranda, lender and investor presentations, bank information memoranda and similar documents), (D) taking reasonable corporate actions, subject to and only effective upon the occurrence of the Closing, reasonably necessary Source to permit the consummation of the Debt Financing; ;
(E9) providing obtaining customary authorization and/or representation letters in connection with the distribution payoff letters, Encumbrance terminations and instruments of the bank information memoranda contemplated by the Debt Commitment Letter discharge to prospective lenders and identifying any portion of the information therein that constitutes material non-public information regarding the Business, Seller or its Subsidiaries; provided that such letters and confirmations expressly state that (x) Seller shall not have any liability of any kind or nature resulting from the use of information in connection with their cooperation with arranging the Debt Financing and (y) the recipient of such letters of authorization shall be entitled delivered at Closing to rely only on the representations and warranties contained in the Debt Financing Documents; (F) assisting with the preparation and negotiation of, and facilitating the execution and delivery by the appropriate officers of any Purchased Company of, loan agreements, pledge and security documents and other definitive documents and/or certificates contemplated by the Debt Commitment Letter; (G) have a senior financial officer of any Purchased Company execute and deliver to the Financing Sources a solvency certificate in substantially the form attached to the Debt Commitment Letter; (H) cooperating in the replacement or backstop of any outstanding letters of credit issued allow for the account of the Business or any Purchased Subsidiaries or any joint venture thereof; (I) furnish Buyer payoff, discharge and the Financing Sources at least five Business Days prior to termination in full on the Closing Date of all indebtedness (other than that comprising the Debt Financing); and
(10) furnishing Investor and its Financing Sources promptly with all documentation and other information with respect to the Business which any lender providing or arranging Debt Financing has reasonably requested and any Purchased Subsidiaries that such lender has determined is required by the regulatory authorities in connection with such Debt Commitment Letter required Financing under applicable “know your customer” and anti-money laundering laws, rules and regulations, including without limitation the U.S. PATRIOT Act Act; provided that (x) nothing in this Section 4.13(a) shall require such cooperation to the extent requested not less than 10 days it would require Seller to waive or amend any terms of this Agreement or agree to pay any fees or reimburse any expenses prior to the Closing Date; for which it has not received prior reimbursement by or on behalf of Investor (J) consenting except to the use of extent Investor has provided the logos of the Business so long as indemnities set forth in Section 4.13(c)), (y) nothing herein shall require such use is not reasonably likely to harm or disparage the Business cooperation from Seller or its reputationAffiliates to the extent it would unreasonably interfere with the ongoing operations of Seller or its Affiliates, goodwilland (z) none of Seller or any of its Affiliates or any of their respective representatives shall have any liability under any certificate, productsagreement, servicesarrangement, offerings document or intellectual property rights; (K) obtaining customary payoff letters and related documents and instruments instrument relating to the repayment Debt Financing except, in the case of any exiting third party indebtedness the Company and the Company Subsidiaries, upon the Closing.
(b) Investor shall promptly, upon request by Seller, reimburse Seller for borrowed money required all of its and its Affiliates’ documented reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred by Seller and its Affiliates in connection with the Debt Commitment Letter to be repaid on or coincidental with Closing; cooperation of Seller and (L) supplementing the information covered its Affiliates contemplated by this Section 5.22(a)(ii4.13.
(c) Seller, its Affiliates and their respective officers, advisors and representatives shall be indemnified and held harmless by Investor for and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred by them in connection with the arrangement of the Debt Financing and/or the provision of information utilized in connection therewith (other than information provided in writing specifically for such use by or on behalf of Seller or any of its Affiliates) to the fullest extent permitted by applicable Law, other than to the extent any of the foregoing arises from (i) the willful misconduct, gross negligence, or material breach of its obligations of any of Seller, its Affiliates (including the Company and the Company Subsidiaries) or its or their respective directors, officers, employees, attorneys, accountants or other advisors or representatives or (ii) any information provided by or on behalf of Seller or any of its Affiliates (including the Company and the Company Subsidiaries) in connection with the Debt Financing to the extent such information is the subject of any of the representations or warranties set forth in ARTICLE II and where such information would constitute a breach of any such representation or warranty as of the times upon which the accuracy of such representation or warranty is tested pursuant to this Agreement.
(d) Seller shall or shall cause the Company to supplement the Required Information on a reasonably current basis if to the extent that any such supplement is necessary Required Information, to ensure that the Knowledge of Seller or the Company, when taken as a whole and in light of the circumstances under which such information does not contain an untrue statement statements were made, contains any material misstatement of a material fact or omit omits to state any material fact necessary to make such information not materially misleading; and
(iii) taking such actions as are reasonably requested by Buyer or its Financing Sources to facilitate the satisfaction on a timely basis of all Financing Conditions that are within its control.
(b) Seller will use its reasonable best efforts, and will cause its Subsidiaries to use their reasonable best efforts, to provide to Buyer and its Financing Sources such information as may be necessary so that the information prepared in connection with the Debt Financing (including the marketing thereof) is complete and correct in all material respects and does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein, in the light of the circumstances under which such statements are made, not misleading.
(c) Seller shall have the right to review and comment on marketing materials related to the Debt Financing prior to the dissemination of such materials to potential lenders or other counterparties to any proposed financing transaction (or filing with any Governmental Authority); provided, that Seller shall communicate in writing their comments, if any, to Buyer and its counsel within a reasonable period of time under the circumstances and consistent with the time accorded to other participants who were asked to review and comment on such materials. Notwithstanding anything in this Section 5.22 to the contrary, neither Seller nor any of its Affiliates shall be required to (i) pay any commitment fee or similar fee, (ii) except in the case of the Purchased Companies following the Closing and the execution of authorization and representation letters referred to in Section 5.22(a)(ii), incur any Liability (or cause their respective directors, officers or employees to incur any Liability) with respect to the cooperation described in this Section 5.22, (iii) approve or enter into any agreement or binding commitment, (iv) provide (or to have any of their respective Representatives provide) any opinions or reliance letters, in each case, with respect to or in connection with the Financing or the Sale Leaseback Financing, or (v) execute or deliver, or take any corporate or other action to adopt or approve, any documents, agreement, certificate or instrument with respect to the Financing, including any pledge or security documents or closing certificates (other than (x) the execution of authorization and representation letters referred to in Section 5.22(a)(ii) and (y) to the extent necessary for the valid and enforceable execution of definitive Financing documentation, such cooperation as is reasonably necessary to facilitate the adoption of resolutions and consents, as applicable); provided that the foregoing clause (y) shall not prevent any of the officers or directors of any Purchased Company who will remain officers and/or directors of a Purchased Company immediately following the Closing from executing documents, agreements, resolutions, certificates and instruments that do not become effective until the Closing.
(d) Buyer shall indemnify and hold harmless Seller and its Affiliates, and each of their respective directors, officers, employees, agents and other Representatives from and against any and all Liabilities suffered or incurred in connection with the arrangement of the Debt Financing or the Sale Leaseback Financing or any assistance or activities provided in connection therewith (other than historical information relating to the Business provided by Seller or its Affiliates in writing for the purpose of arranging the Debt Financing); provided, however, that the foregoing shall not apply in Seller’s or its Affiliates’ or other Representatives’ willful misconduct or gross negligence. Buyer shall promptly reimburse Seller and its Affiliates for all documented out-of-pocket third party costs incurred by Seller and its Affiliates in connection with such cooperation.
(e) Notwithstanding anything to With the contrary herein, it is understood and agreed that the condition set forth in Section 8.02(a), as applied to Seller’s obligations under this Section 5.22, shall be deemed prior written consent of Seller (not to be satisfied unless unreasonably withheld or delayed) in connection with any proposed use, the Financing or Company’s and the Sale Leaseback Financing has not been obtained as a result of Sellers’s breach of its obligations under this Section 5.22 to Company Subsidiaries’ logos (other than any logo incorporating the extent “Tyco” name) may be used in connection with the Financing; provided that such breach impairs or adversely affects the Financing or the Sale Leaseback Financing, including the execution, timing and pricing or cost thereof, logos are used solely in a material manner. Buyer acknowledges and agrees manner that obtaining is not intended to or reasonably likely to harm or disparage the Financing and the Sale Leaseback Financing are not conditions to Closing. None of Seller Company or any of its Affiliates shall have any obligations under this Section 5.22 following the consummation Company Subsidiaries or the reputation or goodwill of the transactions contemplated herebyCompany or any of the Company Subsidiaries.
Appears in 2 contracts
Samples: Investment Agreement (Unistrut International Holdings, LLC), Investment Agreement (Tyco International LTD)
Debt Financing Cooperation. (a) Seller shallPrior to the Closing, the Company agrees to, and shall to cause its Subsidiaries to, use all reasonable best efforts to cause its Affiliates provide (in each case, at the sole cost of the Parent, GT Topco and Representatives toMerger Sub), provide Parent, GT Topco and Merger Sub with such reasonable and customary cooperation in connection and assistance with the arrangement of the Debt Financing as is may be reasonably requested by Buyer; provided that Seller Parent, GT Topco and its Affiliates shall in no event be required to provide such assistance that shall unreasonably interfere with their respective business operations. Such assistance shall includeMerger Sub, without limitation, the following, each of which shall be at Buyer’s request with reasonably practicable prior notice and at Buyer’s sole cost and expense:
including (i) furnishing Buyer and its Financing Sources as promptly as practicable with (x) the financial statements and pro forma financial information referred to in the Commitment Letters (as in effect as of the date hereof) and (y) such other pertinent and customary financial and other information customarily delivered in connection with Buyer’s preparation of a customary bank book, confidential information memorandum, lender presentations, business projections and similar documents for financings that are similar to the Debt Financing and other marketing materials customarily used in connection with the syndication of financings that are similar to the Debt Financing reasonably requested by Buyer (including with respect to acquired entities) in order to market, syndicate and consummate the Debt Financing, and promptly provide Parent with any supplements to such information requested by Buyer pursuant to this clause (i);
(ii) participation by the senior management team of the Business in the marketing activities undertaken in connection with the marketing of the Debt Financing, including (A) assisting in the preparation of a customary bank book, confidential information memorandum, lender presentations, business projections and similar documents (B) a reasonable number of meetings with prospective lenders or debt investors, sessions with rating agencies for the Debt Financing and due diligence sessions and otherwise assisting in marketing efforts related to the Debt Financing including, without limitation, direct contact between senior management and representatives of the Business, on the one hand, and the financing sources, potential lenders and investors for the Debt Financing (including, without limitation, the Financing Sources), on the other hand; (C) providing to Buyer from time to time information regarding the Business reasonably requested by the financing sources (including, without limitation, the Financing Sources) and assisting with the preparation of appropriate and customary materials for rating agency presentations, offering and syndication documents (including prospectuses, private placement bank information memoranda, lender and investor presentations, bank information memoranda and similar documents), (D) taking reasonable corporate actions, subject to and only effective upon the occurrence of the Closing, reasonably necessary to permit the consummation of the Debt Financing; (E) providing customary authorization and/or representation letters in connection with the distribution of the bank information memoranda contemplated by the Debt Commitment Letter to prospective lenders and identifying any portion of the information therein that constitutes material non-public information regarding the Business, Seller or its Subsidiaries; provided that such letters and confirmations expressly state that (x) Seller shall not have any liability of any kind or nature resulting from the use of information in connection with their cooperation with arranging the Debt Financing and (y) the recipient of such letters of authorization shall be entitled to rely only on the representations and warranties contained in the Debt Financing Documents; (F) assisting with the preparation and negotiation of, and facilitating the execution and delivery by the appropriate officers of any Purchased Company of, loan agreements, pledge and security documents and other definitive documents and/or certificates contemplated by the Debt Commitment Letter; (G) have a senior financial officer of any Purchased Company execute and deliver to the Financing Sources a solvency certificate in substantially the form attached to the Debt Commitment Letter; (H) cooperating in the replacement or backstop of any outstanding letters of credit issued for the account of the Business or any Purchased Subsidiaries or any joint venture thereof; (I) furnish Buyer and the Financing Sources at least five Business Days prior to the Closing Date with all documentation and other information with respect to the Business and any Purchased Subsidiaries required by the Debt Commitment Letter required under applicable “know your customer” and anti-money laundering laws, rules and regulations, including the U.S. PATRIOT Act to the extent requested not less than 10 days prior to the Closing Date; (J) consenting to the use of the logos of the Business so long as such use is not reasonably likely to harm or disparage the Business or its reputation, goodwill, products, services, offerings or intellectual property rights; (K) obtaining customary payoff letters and related documents and instruments relating to the repayment of any exiting third party indebtedness for borrowed money required by the Debt Commitment Letter to be repaid on or coincidental with Closing; and (L) supplementing the information covered by this Section 5.22(a)(ii) on a current basis if such supplement is necessary to ensure that such information does not contain an untrue statement of a material fact or omit to state any material fact necessary to make such information not misleading; and
(iii) taking such actions as are reasonably requested by Buyer or its Financing Sources to facilitate the satisfaction on a timely basis of all Financing Conditions that are within its control.
(b) Seller will use its reasonable best efforts, and will cause its Subsidiaries to use their reasonable best efforts, to provide to Buyer and its Financing Sources such information as may be necessary so that the information prepared in connection with the Debt Financing and (including ii) furnishing Parent and the marketing thereofLenders with copies of financial statements of the Company that the Company has provided, or is required to provide at such specified times pursuant to Section 6.2 of the Existing Credit Agreement; provided that (A) is complete and correct in all material respects and such requested cooperation does not contain any untrue statement of a material fact or omit to state a material fact necessary to make unreasonably interfere with the statements contained therein, in the light ongoing operations of the circumstances under which such statements are made, not misleading.
(c) Seller shall have the right to review and comment on marketing materials related to the Debt Financing prior to the dissemination of such materials to potential lenders or other counterparties to any proposed financing transaction (or filing with any Governmental Authority); provided, that Seller shall communicate in writing their comments, if any, to Buyer Company and its counsel within a reasonable period Subsidiaries and (B) none of time under the circumstances and consistent with Securityholders, the time accorded to other participants who were asked to review and comment on such materials. Notwithstanding anything in this Section 5.22 to the contrary, neither Seller nor Company or any of its Affiliates Subsidiaries shall be required to (i1) pay deliver or cause the delivery of any commitment fee legal opinions or similar fee, accountants’ cold comfort letters or reliance letters or any certificate as to solvency or any other certificate necessary for the Debt Financing (ii) except in the case other than a certificate from an appropriate officer on behalf of the Purchased Companies following Company regarding the Closing and accuracy of the execution financial metrics of authorization and representation letters referred to in Section 5.22(a)(ii), incur any Liability (or cause their respective directors, officers or employees to incur any Liability) the Company with respect to EBITDA and gross revenue that appear in the cooperation described prospectus or offering memorandum for the Debt Financing which shall be in this Section 5.22customary form for transactions similar to the offering), (iii2) approve or enter into give any agreement or binding commitment, (iv) provide (or to have any of their respective Representatives provide) any opinions or reliance letters, in each case, with respect to or indemnities in connection with the Financing or the Sale Leaseback Debt Financing, (3) provide any information the disclosure of which is prohibited or restricted under applicable Law or is legally privileged, (4) take any action that will conflict with or violate its organizational documents or any applicable Laws or would result in a violation or breach of, or default under, (with or without notice or lapse of time, or both) any agreement to which the Company or any of its Subsidiaries is a party or (v5) execute pay any cost, expense or deliver, or take any corporate commitment or other action to adopt similar fee or approveincur any other liability in connection with the Debt Financing. Parent, any documents, agreement, certificate or instrument with respect to the Financing, including any pledge or security documents or closing certificates (other than (x) GT Topco and Merger Sub agree that nothing in this Agreement will require the execution of authorization and representation letters referred to in Section 5.22(a)(ii) and (y) to or delivery or, entry into or performance by the extent necessary for the valid and enforceable execution of definitive Financing documentation, such cooperation as is reasonably necessary to facilitate the adoption of resolutions and consents, as applicable); provided that the foregoing clause (y) shall not prevent Company or any of the officers its Subsidiaries or directors of any Purchased Company who will remain officers and/or directors of a Purchased Company immediately following the Closing from executing documents, agreements, resolutions, certificates and instruments that do not become effective until the Closing.
(d) Buyer shall indemnify and hold harmless Seller and its Affiliates, and each of their respective directors, officers, employeesmanagers, agents and other Representatives from and against employees or Securityholders of any and all Liabilities suffered agreements, documents or incurred instruments, including any Debt Financing Agreements, in connection with the arrangement Debt Financing. Nothing in this Agreement will require (A) any officer or Representative of the Debt Financing or the Sale Leaseback Financing Company or any assistance of its Subsidiaries to deliver any certificate or activities provided opinion or take any other action pursuant to Section 4.12 or any other provision of this Agreement that could reasonably be expected to result in connection therewith personal liability to such officer or Representative, or (other than historical information relating B) the members of the Board and the directors and managers of the Company and the Company Subsidiaries as of the date hereof to approve any financing or Contracts, documents or instruments related thereto prior to the Business provided Effective Time. Notwithstanding anything in this Agreement to the contrary, unless the Company has willfully and materially breached is obligations pursuant to this Section 4.12, the failure by Seller or its Affiliates in writing for the purpose of arranging the Debt Financing); provided, however, that the foregoing Company to comply with Section 4.12 shall not apply result in Seller’s or its Affiliates’ or other Representatives’ willful misconduct or gross negligence. Buyer shall promptly reimburse Seller and its Affiliates for all documented out-of-pocket third party costs incurred by Seller and its Affiliates in connection with such cooperation.
(e) Notwithstanding anything to a failure of any of the contrary herein, it is understood and agreed that the condition conditions set forth in Section 8.02(a), as applied to Seller’s obligations under this 5.1 or Section 5.22, shall be deemed 5.2 to be satisfied unless the Financing (or the Sale Leaseback Financing has not been obtained as a result of Sellers’s breach of its obligations under this Section 5.22 to the extent such breach impairs or adversely affects the Financing or the Sale Leaseback Financing, including the execution, timing and pricing or cost thereof, in a material manner. Buyer acknowledges and agrees that obtaining the Financing and the Sale Leaseback Financing are not conditions to Closing. None of Seller or any of its Affiliates shall have any obligations under this Section 5.22 following the consummation of the transactions contemplated herebycorresponding termination right in Article VI).
Appears in 2 contracts
Debt Financing Cooperation. (a) Seller shallThe Company shall use, and shall use all cause each of its Subsidiaries to use, reasonable best efforts to cause its Affiliates and Representatives to, provide such cooperation in connection with the arrangement of the Debt Financing as is customary for similar debt financings and is reasonably requested by BuyerParent; provided provided, that Seller and its Affiliates (i) the Company shall in no event be required to provide any such assistance that shall could reasonably be expected to unreasonably or materially interfere with their respective its business operations, (ii) neither the Parent nor any of its Financing Sources shall have the right to perform any investigative procedures that involve physical disturbance or damage to any property or other assets of the Company or its Subsidiaries, and (iii) nothing herein shall require the Company or any of its Subsidiaries to furnish any information (A) not customarily required for completion of debt financings similar to the Debt Financing or (B) with respect to a fiscal quarterly period that has not yet ended or has ended less than 40 days prior to the Closing Date. Such assistance shall include, without limitation, include the following, each of which shall be at Buyer’s request with reasonably practicable prior notice and at BuyerParent’s sole cost and expense:
(i) furnishing Buyer and its Financing Sources as promptly as practicable with (x) the financial statements and pro forma financial information referred to in the Commitment Letters (as in effect as of the date hereof) and (y) such other pertinent and customary financial and other information customarily delivered in connection with Buyer’s preparation of a customary bank book, confidential information memorandum, lender presentations, business projections and similar documents for financings that are similar to the Debt Financing and other marketing materials customarily used in connection with the syndication of financings that are similar to the Debt Financing reasonably requested by Buyer participating (including with respect to acquired entities) in order to market, syndicate and consummate the Debt Financing, and promptly provide Parent with any supplements to such information requested by Buyer pursuant to this clause (i);
(ii) participation by causing the senior management team of the Business Company to participate) in the customary marketing activities undertaken in connection with the preparation of materials and marketing of the Debt Financing, including (A) assisting in preparing customary marketing materials (including bank information memoranda and lender presentations (including a version of such marketing materials that does not contain any material non-public information with respect to the preparation of a customary bank bookCompany and its Subsidiaries), confidential information memorandumoffering memoranda, lender presentations, business projections investor presentations and other similar documents documents) and attending due diligence sessions related thereto (including using reasonable best efforts to cause its independent auditor to attend) and (B) participating in a reasonable number of meetings meetings, presentations, roadshows, drafting sessions and other sessions with prospective lenders or debt investorsand investors (each of which may be conducted by conference call);
(ii) participating (including by causing the senior management team of the Company to participate) in, sessions and assisting with, the preparation of rating agency presentations and meetings with rating agencies and other customary marketing documents required in connection with the Debt Financing (including customary authorization letters), if necessary;
(iii) delivering to Parent as promptly as reasonably practicable (x) the Financing Information (including any updates as may be necessary for such Financing Information to remain Compliant), and (y) from time to time, other pertinent and customary information regarding the Company and its Subsidiaries reasonably requested by the Financing Sources and reasonably available to the Company;
(iv) assisting with Xxxxxx’s preparation of pro forma financial statements customarily included in an offering memorandum used in a “Rule-144A-for-life” offering of non-convertible high-yield debt securities;
(v) facilitating (x) the negotiation, execution and delivery of the Debt Financing Documents as may be reasonably requested by Xxxxxx and (y) the granting and perfection of security interests and the pledging of collateral; provided that such Debt Financing Documents and security interests shall be effective no earlier than as of the Effective Time;
(vi) providing customary representations to its independent auditor in connection with the Debt Financing and due diligence sessions and otherwise assisting in marketing using reasonable best efforts related to cause its independent auditor to cooperate with the Debt Financing as reasonably requested by Parent as necessary or customary for financing similar to the Debt Financing includingFinancing, without limitation, direct contact between senior management and representatives including by agreeing to the use of the Business, on the one hand, and the financing sources, potential lenders and investors for their audit reports in any materials relating to the Debt Financing Financing, attending accounting due diligence sessions, providing customary comfort letters (including, without limitation, including customary “negative assurance” and changed period comfort) with respect to the Company and otherwise providing reasonable and customary assistance and cooperation in connection with the Debt Financing;
(vii) cooperating reasonably with the Financing Sources)’ due diligence, on to the other hand; extent reasonable and customary;
(Cviii) providing to Buyer from time to time information regarding reasonably facilitating the Business reasonably requested by the financing sources (including, without limitation, the Financing Sources) and assisting with the preparation taking of appropriate and customary materials for rating agency presentations, offering and syndication documents (including prospectuses, private placement memoranda, lender and investor presentations, bank information memoranda and similar documents), (D) taking reasonable all corporate actions, subject to and only effective upon the occurrence of the ClosingEffective Time, reasonably necessary requested by Parent to permit the consummation of the Debt Financing; Financing and to permit the proceeds thereof to be made available to Parent (E) providing customary authorization and/or representation letters in connection with the distribution of the bank information memoranda contemplated by the Debt Commitment Letter to prospective lenders and identifying any portion of the information therein that constitutes material non-public information regarding the Business, Seller or its Subsidiaries) immediately after; provided provided, that no such letters and confirmations expressly state that (x) Seller shall not have any liability of any kind or nature resulting from the use of information in connection with their cooperation with arranging the Debt Financing and (y) the recipient of such letters of authorization action shall be entitled required of the Company Board and/or any committee thereof, in any case, which is effective prior to rely only on the representations and warranties contained in Effective Time;
(ix) providing any information about the Debt Financing Documents; (F) assisting with the preparation and negotiation of, and facilitating the execution and delivery Company required by the appropriate officers any of any Purchased Company of, loan agreements, pledge and security documents and other definitive documents and/or certificates contemplated by the Debt Commitment Letter; (G) have a senior financial officer of any Purchased Company execute and deliver to the Financing Sources a solvency certificate in substantially the form attached to the Debt Commitment Letter; (H) cooperating in the replacement or backstop of any outstanding letters of credit issued for the account of the Business or any Purchased Subsidiaries or any joint venture thereof; (I) furnish Buyer and the Financing Sources at least five Business Days prior to the Closing Date comply with all documentation and other information with respect to the Business and any Purchased Subsidiaries required by the Debt Commitment Letter required under applicable “know your customer” and anti-money laundering laws, rules and regulations, including the U.S. USA PATRIOT Act and the requirements of 31 C.F.R. §1010.230 at least four (4) Business Days prior to the Closing, to the extent requested not less than 10 days by Parent within nine (9) Business Days prior to the Closing; and
(x) assisting Parent with its efforts to obtain any asset-based revolving credit facility, including by assisting Parent in its efforts to obtain third-party appraisals and field examinations, assisting Parent in its preliminary calculation of any applicable borrowing base under such asset-based revolving credit facility prior to the Closing Datebased on the books and records of the Company reasonably available to the management of the Company, and assisting Parent with preparations for the opening of accounts and establishment of systems that the lenders under the asset-based revolving credit facility may reasonably require to be established from and after the Closing; provided, however, that (1) other than customary authorization letters (if any), no obligation of the Company or any of its Subsidiaries under any such certificate, document or instrument shall be effective until the Closing; (J2) consenting other than customary authorization letters (if any), none of the Company or any of its Subsidiaries shall be required to take any action under any certificate, document or instrument that is not contingent upon the Closing (including the entry into any agreement that is effective before the Closing), that does not terminate without liability to the use Company upon the termination of the logos of the Business so long as such use is not reasonably likely to harm this Agreement or disparage the Business or its reputation, goodwill, products, services, offerings or intellectual property rights; (K) obtaining customary payoff letters and related documents and instruments relating that would be effective prior to the repayment of any exiting third party indebtedness for borrowed money required by the Debt Commitment Letter to be repaid on or coincidental with ClosingEffective Time; and (L3) supplementing the information covered by foregoing provisions shall not require cooperation to the extent it would (I) interfere unreasonably with the business or operations of the Company or any of its Subsidiaries, (II) cause any condition to Closing to not be satisfied or otherwise cause any breach of this Section 5.22(a)(iiAgreement (including any representations or warranties thereunder), (III) on a current basis if such supplement is necessary to ensure that such information does not contain an untrue statement cause the Company or any of a material fact or omit to state any material fact necessary to make such information not misleading; and
(iii) taking such actions as are reasonably requested by Buyer or its Financing Sources to facilitate the satisfaction on a timely basis of all Financing Conditions that are within its control.
(b) Seller will use its reasonable best efforts, and will cause its Subsidiaries to pay or otherwise become liable in respect of any commitment or other similar fee payable in connection with the Financing prior to the Effective Time, (IV) result in the material contravention of, or that could reasonably be expected to result in a material violation or breach of, or a default under, any Laws, under any material Contract or under any confidentiality arrangement to which the Company or any of its Subsidiaries is a party in effect on the date hereof, (V) require the Company to provide access to or disclose information that the Company determines would jeopardize any attorney-client privilege of the Company or any of its Subsidiaries or would otherwise be restricted from disclosure in accordance with the proviso in Section 5.2(a), (VI) require the Company to deliver or cause the delivery of any legal opinions in connection with the Debt Financing, (VII) require the Company to conduct any intrusive, destructive or invasive physical testing (including, without limitation, any Phase II environmental testing) of any Company Real Property without the Company’s prior written consent (not to be unreasonably withheld, conditioned or delayed), (VIII) require the Company or any of its Subsidiaries to change any fiscal period, (IX) require the Company to amend any terms of this Agreement, (X) require the Company or any of its Subsidiaries to take any action that would subject any director, manager, partner, officer or employee of the Company or any of its Subsidiaries to any actual or potential personal liability, (XI) require any director, shareholder, manager, member or partner of the Company or any of its Subsidiaries to pass resolutions or consents to approve or authorize the execution of the Debt Financing that would be effective prior to the Effective Time or (XII) require the Company or any of its Subsidiaries to make any representations, warranties or certifications as to which, after the Company’s use their of reasonable best effortsefforts to cause such representation, warranty or certification to be true, the Company has determined that such representation, warranty or certification is not true. Notwithstanding anything to the contrary elsewhere in this Agreement, neither the Company nor any Subsidiary thereof shall be required to (x) pay any commitment or other similar fee, (y) make any other payment or incur any other expense or liability, in each case prior to the Effective Time, that is not subject to reimbursement or indemnification pursuant to Section 5.11(c) or (z) provide or agree to provide to Buyer and its Financing Sources such information as may be necessary so that the information prepared any indemnity, in each case, in connection with the Debt Financing (including that is effective prior to the marketing thereof) is complete and correct in all material respects and does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein, in the light of the circumstances under which such statements are made, not misleadingEffective Time.
(cb) Seller The Company shall have the right to review and comment on marketing materials related to used in connection with the arrangement of the Debt Financing prior to the dissemination of such materials to potential lenders lenders, investors or other counterparties to any proposed financing transaction (or filing with any Governmental Authority)counterparties; provided, that Seller (x) the Company shall promptly communicate in writing their its comments, if any, to Buyer Parent and its counsel within a reasonable period of time under the circumstances and consistent with the time accorded to other participants who were asked to review and comment on such materials. Notwithstanding anything in this Section 5.22 to the contrary, neither Seller nor any of its Affiliates shall be required to (i) pay any commitment fee or similar fee, (ii) except in the case of the Purchased Companies following the Closing and the execution of authorization and representation letters referred to in Section 5.22(a)(ii), incur any Liability (or cause their respective directors, officers or employees to incur any Liability) with respect to the cooperation described in this Section 5.22, (iii) approve or enter into any agreement or binding commitment, (iv) provide (or to have any of their respective Representatives provide) any opinions or reliance letters, in each case, with respect to or in connection with the Financing or the Sale Leaseback Financing, or (v) execute or deliver, or take any corporate or other action to adopt or approve, any documents, agreement, certificate or instrument with respect to the Financing, including any pledge or security documents or closing certificates (other than (x) the execution of authorization and representation letters referred to in Section 5.22(a)(ii) and (y) Parent and its counsel shall give due regard and consideration to the extent necessary for the valid and enforceable execution of definitive Financing documentation, any such cooperation as is reasonably necessary to facilitate the adoption of resolutions and consents, as applicable); provided that the foregoing clause (y) shall not prevent any comments of the officers or directors of any Purchased Company who will remain officers and/or directors of a Purchased Company immediately following the Closing from executing documents, agreements, resolutions, certificates and instruments that do not become effective until the ClosingCompany.
(dc) Buyer Parent shall indemnify and hold harmless Seller the Company and its AffiliatesSubsidiaries, and each of their respective directors, officers, employees, agents and other Representatives Representatives, from and against any and all Liabilities liabilities, costs or expenses suffered or incurred in connection with the arrangement of the Debt Financing or the Sale Leaseback Financing or any assistance or activities provided pursuant to Section 5.11(a), in connection therewith (other than historical information relating each case except to the Business provided by Seller extent such losses are suffered or its Affiliates incurred (x) as a result of any such person’s bad faith, gross negligence or willful misconduct, as applicable or (y) as a result of any material errors, omission, misstatements or inaccuracies in writing for any written information (including, without limitation, any of the purpose of arranging Company SEC Financial Statements or any other historical financial information). Parent shall reimburse the Debt Financing); provided, however, that the foregoing shall not apply in Seller’s or its Affiliates’ or other Representatives’ willful misconduct or gross negligence. Buyer shall promptly reimburse Seller and its Affiliates Company for all reasonable and documented out-of-pocket third third-party costs and expenses incurred by Seller and its Affiliates the Company in connection with cooperation under Section 5.11(a) promptly upon the termination of this Agreement pursuant to Section 7.1.
(d) All non-public or otherwise confidential information regarding the Company and its Subsidiaries obtained by Parent or its representatives shall be kept confidential in accordance with the Confidentiality Agreement, except that Parent shall be permitted to disclose such cooperationinformation to potential investors and lenders and their respective general or limited partners, shareholders, managers, members, directors, officers, employees, agents and representatives, as necessary and consistent with customary practices in connection with the Debt Financing, in each case subject to customary confidentiality undertakings with respect to such information.
(e) Notwithstanding anything The Company and its Subsidiaries consents to the contrary hereinuse of their logos by Parent, it is understood and agreed that the condition set forth in Section 8.02(a), as applied to Seller’s obligations under this Section 5.22, shall be deemed to be satisfied unless the Financing Sources and their representatives in connection with the Debt Financing in a manner customary for such financing transactions; provided, that such logos are used solely in a manner that is not intended to or reasonably expected to harm or disparage the Company and its Subsidiaries or the Sale Leaseback Financing has not been obtained as a result of Sellers’s breach of its obligations under this Section 5.22 to the extent such breach impairs reputation or adversely affects the Financing or the Sale Leaseback Financing, including the execution, timing and pricing or cost thereof, in a material manner. Buyer acknowledges and agrees that obtaining the Financing and the Sale Leaseback Financing are not conditions to Closing. None of Seller or any of its Affiliates shall have any obligations under this Section 5.22 following the consummation goodwill of the transactions contemplated herebyCompany and its Subsidiaries.
Appears in 2 contracts
Samples: Merger Agreement (Patterson Companies, Inc.), Merger Agreement (Patterson Companies, Inc.)
Debt Financing Cooperation. (a) Seller Prior to the Closing, Scotts shall, and shall cause its Subsidiaries (including the SLS Entities) to, and shall use all its reasonable best efforts to cause its Affiliates and Representatives their representatives to, provide to TruGreen Holdings and TruGreen LP such cooperation reasonably requested by TruGreen Holdings and TruGreen LP to assist TruGreen Holdings and TruGreen LP in causing the conditions in the Debt Financing Commitment to be satisfied and such cooperation as is otherwise necessary or reasonably requested by TruGreen Holdings and TruGreen LP in connection with the arrangement of TruGreen LP’s obtaining the Debt Financing as is reasonably requested by Buyer; provided in accordance with its terms, including cooperation that Seller and its Affiliates shall in no event be required to provide such assistance that shall unreasonably interfere with their respective business operations. Such assistance shall include, without limitation, the following, each of which shall be at Buyer’s request with reasonably practicable prior notice and at Buyer’s sole cost and expenseconsists of:
(i) participating in a customary and reasonable number of meetings, presentations, road shows, due diligence sessions, drafting sessions and sessions with ratings agencies, in each case at times and locations mutually agreed and reasonably coordinated in advance thereof;
(ii) providing customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders or investors (including customary 10b-5 and material non-public information representations);
(iii) executing and delivering any securities purchase agreement, credit agreement, indentures, notes, guarantees, pledge and security documents, supplemental indentures, currency or interest hedging arrangements, other definitive financing documents, and certificates or documents and back-up therefor and for legal opinions as may be reasonably requested by TruGreen Holdings or TruGreen LP and otherwise reasonably facilitating the pledging of collateral; provided that none of Scotts or its Subsidiaries or any of their respective officers or employees shall be required to execute any document in connection with this Section 5.11(a), which document would be effective at any time before the time that will be immediately prior to the Closing, other than the execution by the SLS Entities of any note purchase agreement being entered into at the time of “pricing” of any high yield bonds issued in lieu of all or a portion of the Debt Financing, and any corporate authorizations in connection with such note purchase agreement;
(iv) (A) furnishing Buyer TruGreen Holdings, TruGreen LP and its the Financing Sources as promptly as practicable with (x) audited combined balance sheets of the financial SLS Business for the two most recent completed fiscal years ended at least 90 days prior to the Closing Date, statements of operations, comprehensive loss, cash flows and pro forma financial information referred changes of equity of the SLS Business for the three most recently completed fiscal years ended at least 90 days prior to the Closing Date, together with all related notes and schedules thereto, accompanied by the reports thereon of the independent auditors of the SLS Business and (y) unaudited combined balance sheets and related combined statements of operations, comprehensive loss, cash flows and changes of equity of the SLS Business prepared in accordance with GAAP for each of the first three fiscal quarters and related year-to-date interim periods ended after the close of its most recent fiscal year and at least 45 days prior to the Closing Date and for the comparable quarter and year-to-date interim period of the prior fiscal year, together with all related notes and schedules thereto, in the Commitment Letters case of each of clauses (as in effect as of the date hereofx) and (y), prepared in accordance with GAAP and in compliance with Regulation S-X promulgated under the Securities Act, (B) such other pertinent furnishing TruGreen Holdings and customary TruGreen LP (or to the Financing Sources on behalf of TruGreen Holdings and TruGreen LP) as promptly as practicable with all financial data and other information customarily delivered in connection with Buyerreadily available or that can be gathered without undue burden regarding the SLS Business (including financial information of the SLS Business reasonably requested by TruGreen Holdings necessary for TruGreen LP’s preparation of any pro forma financial statements taking into account the Transactions (provided that Scotts and its Subsidiaries shall not be responsible for the preparation of such pro forma financial statements or any related pro forma adjustments)), in each case, (x) of the type and form customarily included in an offering memorandum for private placements of “private for life” non-convertible high-yield bonds under Rule 144A promulgated under the Securities Act, or (y) as applicable, otherwise necessary to enable any investment bank that is an initial purchaser in such Rule 144A private placement to receive from the SLS Business’ independent accountants a customary bank book, confidential information memorandum, lender presentations, business projections and similar documents for financings that are similar to the Debt Financing and other marketing materials customarily used in connection with the syndication of financings that are similar to the Debt Financing reasonably requested by Buyer “comfort” letter (including with respect to acquired entities“negative assurance” comfort) in order to market(which, syndicate and consummate the Debt Financing, and promptly provide Parent with any supplements to such information requested by Buyer pursuant to this clause (i);
(ii) participation by the senior management team of the Business in the marketing activities undertaken case of each of clauses (x) and (y), for the avoidance of doubt, shall not include information required by Rule 3-09, Rule 3-10 or Rule 3-16 of Regulation S-X, or Items 402 and 407 of Regulation S-K, or executive compensation and related person disclosure referred to in connection SEC Release Nos. 33-8732A, 34-54302A and IC-2744A, or other information customarily excluded from a Rule 144A offering memorandum), together with the marketing drafts of customary comfort letters which such independent accountants are prepared to deliver (subject to completion of customary procedures) upon “pricing” of any such Rule 144A private placement of high-yield bonds being issued in lieu of all or a portion of the Debt Financing, including with respect to the financial information of the SLS Business included in such offering memorandum and, with respect to any interim financial statements of the SLS Business included in the offering memorandum, such interim financial statements shall have been reviewed by independent accountants of the SLS Business as provided in AU 722 to the extent necessary to provide such customary comfort letter, (AC) consents from the auditors of the SLS Business for inclusion of their unqualified audit reports in any materials relating to the Debt Financing or any high-yield bonds being issued in lieu of all or a portion of the Debt Financing (in each case to the extent that such consents are required in order to so include such reports) (sub-clauses (A)-(C) of this clause (iv), the “Required Information”); and (D) reasonably assisting TruGreen Holdings and TruGreen LP in the preparation of a materials (to the extent relating to the SLS Business and/or the SLS Entities) for customary rating agency presentations, lender presentations and high yield road show presentations or memoranda, customary bank bookinformation and offering memoranda, confidential syndication memoranda, private information memorandumand offering memoranda, lender presentations, business projections and similar documents (B) a reasonable number marketing materials or memoranda, including such information and data related to the SLS Business and/or the SLS Entities as is reasonably required by TruGreen Holdings and TruGreen LP to produce the financial statements and information identified in paragraphs 5(a), 6 and 8 of meetings with prospective lenders or debt investors, sessions with rating agencies for Exhibit D of the Debt Financing Commitment (to the extent relating to the SLS Business or the SLS Entities) or otherwise required in connection with the Debt Financing;
(v) using reasonable best efforts to cooperate with TruGreen Holdings and due diligence sessions TruGreen LP in connection with their efforts to obtain customary and otherwise assisting in marketing efforts related reasonable corporate and facilities ratings, consents, landlord waivers and estoppels, non-disturbance agreements, non-invasive environmental assessments, legal opinions, surveys and title insurance (including providing reasonable access to TruGreen Holdings and its representatives to all SLS Owned Real Property and SLS Leased Real Property) as reasonably requested by TruGreen Holdings;
(vi) cooperating with TruGreen Holdings and TruGreen LP to satisfy the conditions precedent to the Debt Financing including, without limitation, direct contact between senior management and representatives of to the Business, on the one hand, and the financing sources, potential lenders and investors for the Debt Financing (including, without limitation, the Financing Sources), on the other hand; (C) providing to Buyer from time to time information regarding the Business extent reasonably requested by TruGreen Holdings or TruGreen LP and within the financing sources (includingcontrol of Scotts and its Subsidiaries, without limitation, the Financing Sources) and assisting with the preparation of appropriate and customary materials for rating agency presentations, offering and syndication documents (including prospectuses, private placement memoranda, lender and investor presentations, bank information memoranda and similar documents), (D) taking reasonable all corporate actions, subject to and only effective upon the occurrence of the Closing, reasonably necessary requested by TruGreen Holdings or TruGreen LP to permit the consummation of the Debt Financing; ;
(Evii) providing obtaining customary authorization and/or representation letters in connection with the distribution payoff letters, Encumbrance terminations and instruments of the bank information memoranda contemplated by the Debt Commitment Letter discharge to prospective lenders and identifying any portion of the information therein that constitutes material non-public information regarding the Business, Seller or its Subsidiaries; provided that such letters and confirmations expressly state that (x) Seller shall not have any liability of any kind or nature resulting from the use of information in connection with their cooperation with arranging the Debt Financing and (y) the recipient of such letters of authorization shall be entitled delivered at Closing to rely only on the representations and warranties contained in the Debt Financing Documents; (F) assisting with the preparation and negotiation of, and facilitating the execution and delivery by the appropriate officers of any Purchased Company of, loan agreements, pledge and security documents and other definitive documents and/or certificates contemplated by the Debt Commitment Letter; (G) have a senior financial officer of any Purchased Company execute and deliver to the Financing Sources a solvency certificate in substantially the form attached to the Debt Commitment Letter; (H) cooperating in the replacement or backstop of any outstanding letters of credit issued allow for the account of the Business or any Purchased Subsidiaries or any joint venture thereof; (I) furnish Buyer payoff, discharge and the Financing Sources at least five Business Days prior to termination in full on the Closing Date of all Indebtedness required to be paid, satisfied and discharged pursuant to Section 1.6 (and excluding, for the avoidance of doubt, that comprising the Debt Financing); and
(viii) furnishing TruGreen Holdings and TruGreen LP promptly with all documentation and other information with respect to the Business which any lender providing or arranging Debt Financing has reasonably requested and any Purchased Subsidiaries that such lender has determined is required by the regulatory authorities in connection with such Debt Commitment Letter required Financing under applicable “know your customer” and anti-money laundering laws, rules and regulations, including the U.S. PATRIOT Act Act; provided that (x) nothing in this Section 5.11(a) shall require such cooperation to the extent requested not less than 10 days it would (i) require Scotts or any of its Subsidiaries to waive or amend any terms of this Agreement or agree to pay any fees or reimburse any expenses prior to the Closing Date; for which it has not received prior reimbursement by or on behalf of TruGreen Holdings (J) consenting except to the use extent TruGreen Holdings has provided the indemnities set forth in Section 5.11(c)), (ii) require Scotts or any of its Subsidiaries or any of their respective Affiliates to pay (or agree to pay) any fees, or reimburse any expenses prior to the logos of the Business so long as such use Closing for which it is not reasonably likely promptly reimbursed, or otherwise incur any other obligations or give any indemnities prior to harm the Closing that are not contingent on the Closing, (iii) cause any representation or disparage warranty or covenant in this Agreement to be breached by Scotts or any of its Subsidiaries, (iv) conflict with the Business organizational documents of Scotts or any of its Subsidiaries or any Laws, (v) provide access to or disclose information that Scotts or any of its Subsidiaries determines, after consulting with counsel (internal or external) would jeopardize any attorney-client privilege of Scotts or any of its Subsidiaries, or (vi) except as provided in Section 5.11(a)(iv) above, prepare separate financial statements for any Subsidiary of Scotts or change any fiscal period, (y) nothing herein shall require such cooperation from Scotts or its reputationSubsidiaries to the extent it would unreasonably interfere with the ongoing operations of Scotts or its Subsidiaries and (z), goodwillexcept to the extent TruGreen Holdings has provided the indemnities set forth in Section 5.11(c), productsnone of Scotts or any of its Subsidiaries or any of their respective representatives shall have any liability under any certificate, servicesagreement, offerings arrangement, document or intellectual property rights; (K) obtaining customary payoff letters and related documents and instruments instrument relating to the repayment Debt Financing, except, in the case of any exiting third party indebtedness the SLS Entities, upon the Closing.
(b) TruGreen Holdings shall cause TruGreen LP to promptly, upon request by Scotts, reimburse Scotts for borrowed money required all of its and its Subsidiaries’ and their representative’s documented reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred by Scotts and its Subsidiaries in connection with the Debt Commitment Letter to be repaid on or coincidental with Closing; cooperation of Scotts and (L) supplementing the information covered its Subsidiaries contemplated by this Section 5.22(a)(ii5.11.
(c) Scotts, its Subsidiaries and their respective officers, advisors and representatives shall be indemnified and held harmless by TruGreen LP for and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred by them in connection with the arrangement of the Debt Financing and/or the provision of information utilized in connection therewith (other than information provided in writing specifically for such use by or on behalf of Scotts or any of its Subsidiaries) to the fullest extent permitted by applicable Law, other than to the extent any of the foregoing arises from (i) the willful misconduct or gross negligence of any of Scotts, its Subsidiaries (including SLS Entities) or its or their respective directors, officers, employees, attorneys, accountants or other advisors or representatives or (ii) any information provided by or on behalf of Scotts or any of its Subsidiaries (including the SLS Entities) in connection with the Debt Financing to the extent such information is the subject of any of the representations or warranties set forth in Article III and where such information would constitute a breach of any such representation or warranty.
(d) Scotts shall or shall cause the SLS Entities and Non-SLS Subsidiaries (if applicable) to supplement all information delivered pursuant to Section 5.11(a)(iv) (together with any replacements or restatements thereof, and supplements thereto, if any such information would go stale or otherwise be unusable for its intended purposes) on a reasonably current basis if to the extent that any such supplement is necessary information, to ensure that the Knowledge of Scotts or the SLS Entities, when taken as a whole and in light of the circumstances under which such information does not contain an untrue statement statements were made, contains any material misstatement of a material fact or omit omits to state any material fact necessary to make such information not materially misleading; and
(iii) taking such actions as are reasonably requested by Buyer or its Financing Sources to facilitate the satisfaction on a timely basis of all Financing Conditions that are within its control.
(be) Seller will use its reasonable best efforts, and will cause its Subsidiaries to use their reasonable best efforts, to provide to Buyer and its Financing Sources such information as The SLS Entities’ logos may be necessary so that the information prepared used in connection with the Debt Financing (including the marketing thereof) is complete and correct in all material respects and does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein, in the light of the circumstances under which such statements are made, not misleading.
(c) Seller shall have the right to review and comment on marketing materials related to the Debt Financing prior to the dissemination of such materials to potential lenders or other counterparties to any proposed financing transaction (or filing with any Governmental Authority); provided, that Seller shall communicate in writing their comments, if any, to Buyer and its counsel within a reasonable period of time under the circumstances and consistent with the time accorded to other participants who were asked to review and comment on such materials. Notwithstanding anything in this Section 5.22 to the contrary, neither Seller nor any of its Affiliates shall be required to (i) pay any commitment fee or similar fee, (ii) except in the case of the Purchased Companies following the Closing and the execution of authorization and representation letters referred to in Section 5.22(a)(ii), incur any Liability (or cause their respective directors, officers or employees to incur any Liability) with respect to the cooperation described in this Section 5.22, (iii) approve or enter into any agreement or binding commitment, (iv) provide (or to have any of their respective Representatives provide) any opinions or reliance letters, in each case, with respect to or in connection with the Financing or the Sale Leaseback Financing, or (v) execute or deliver, or take any corporate or other action to adopt or approve, any documents, agreement, certificate or instrument with respect to the Financing, including any pledge or security documents or closing certificates (other than (x) the execution of authorization and representation letters referred to in Section 5.22(a)(ii) and (y) to the extent necessary for the valid and enforceable execution of definitive Financing documentation, such cooperation as is reasonably necessary to facilitate the adoption of resolutions and consents, as applicable); provided that such logos are used solely in a manner that is not intended to or reasonably likely to harm, disparage or otherwise adversely affect the foregoing clause (y) shall not prevent any of SLS Entities or the officers reputation or directors goodwill of any Purchased Company who will remain officers and/or directors of a Purchased Company immediately following the Closing from executing documents, agreements, resolutions, certificates and instruments that do not become effective until the ClosingSLS Entity.
(d) Buyer shall indemnify and hold harmless Seller and its Affiliates, and each of their respective directors, officers, employees, agents and other Representatives from and against any and all Liabilities suffered or incurred in connection with the arrangement of the Debt Financing or the Sale Leaseback Financing or any assistance or activities provided in connection therewith (other than historical information relating to the Business provided by Seller or its Affiliates in writing for the purpose of arranging the Debt Financing); provided, however, that the foregoing shall not apply in Seller’s or its Affiliates’ or other Representatives’ willful misconduct or gross negligence. Buyer shall promptly reimburse Seller and its Affiliates for all documented out-of-pocket third party costs incurred by Seller and its Affiliates in connection with such cooperation.
(e) Notwithstanding anything to the contrary herein, it is understood and agreed that the condition set forth in Section 8.02(a), as applied to Seller’s obligations under this Section 5.22, shall be deemed to be satisfied unless the Financing or the Sale Leaseback Financing has not been obtained as a result of Sellers’s breach of its obligations under this Section 5.22 to the extent such breach impairs or adversely affects the Financing or the Sale Leaseback Financing, including the execution, timing and pricing or cost thereof, in a material manner. Buyer acknowledges and agrees that obtaining the Financing and the Sale Leaseback Financing are not conditions to Closing. None of Seller or any of its Affiliates shall have any obligations under this Section 5.22 following the consummation of the transactions contemplated hereby.
Appears in 1 contract
Samples: Contribution and Distribution Agreement (Scotts Miracle-Gro Co)
Debt Financing Cooperation. (a) Seller shall, The Company Group shall provide and shall use all commercially reasonable best efforts to cause its Affiliates their respective employees, agents and Representatives torepresentatives to provide, provide such all reasonable cooperation to Purchaser and Merger Sub in connection with the arrangement of obtaining the Debt Financing as is reasonably requested by Buyer; provided that Seller and its Affiliates shall in no event be required Financing, including, without limitation: (i) using commercially reasonable best efforts to provide such assistance that shall unreasonably interfere with their respective business operations. Such assistance shall include, without limitation, the following, each of which shall be at Buyer’s request with reasonably practicable prior notice and at Buyer’s sole cost and expense:
(i) furnishing Buyer and its Financing Sources as promptly as practicable with (x) the financial statements and pro forma financial information referred to in the Commitment Letters (as in effect as of the date hereof) and (y) such other pertinent and customary financial and other information customarily delivered in connection with Buyer’s preparation of a customary bank book, confidential information memorandum, lender presentations, business projections and similar documents for financings that are similar to the Debt Financing and other marketing materials customarily used as Purchaser shall reasonably request in connection with the syndication of financings that are similar to the Debt Financing reasonably requested by Buyer (including with respect to acquired entities) in order to markettimely delivery of Required Financing Deliverables), syndicate and consummate the Debt Financing, and promptly provide Parent with any supplements to such information requested by Buyer pursuant to this clause (i);
(ii) participation by the senior management team of the Business in the marketing activities undertaken in connection with the marketing of the Debt Financing, including (A) assisting in the preparation of a customary bank bookMarketing Material (including offering documents, ratings agency materials and confidential information memorandum, lender presentations, business projections and similar documents (Bmemoranda) a reasonable number of meetings with prospective lenders or debt investors, sessions with rating agencies for the Debt Financing and due diligence sessions and otherwise assisting in marketing efforts related to the Debt Financing including, without limitation, direct contact between senior management and representatives of the Business, on the one hand, and the financing sources, potential lenders and investors for the Debt Financing (including, without limitation, the Financing Sources), on the other hand; (C) providing to Buyer from time to time information regarding the Business reasonably requested by the financing sources (including, without limitation, the Financing Sources) and assisting with the preparation of appropriate and customary materials for rating agency presentations, offering and syndication documents (including prospectuses, private placement memoranda, lender and investor presentations, bank information memoranda and similar documents)iii) participating as reasonably requested in the Marketing Efforts for any Debt Financing, (Div) taking reasonable corporate actions, subject to and only effective upon the occurrence of the Closing, such actions as may be reasonably necessary requested to permit the consummation prospective Financing Sources, investors and ratings agencies involved in any Debt Financing to evaluate the Company’s assets, cash management and accounting systems, policies and procedures relating thereto for the purpose of establishing collateral arrangements and to establish bank and other accounts and blocked account agreements and lock box arrangements in connection with the foregoing, (v) in the case of management of the Company, assisting in the preparation of the Debt Financing Documents, and delivery by the Company of the Required Financing Deliverables in connection with the Debt Financing provided that no obligation of the Company Group under any Required Financing Deliverable or any other Contract relating to the Debt Financing shall be operative until the Closing Date and no personal liabilities shall be imposed on the officers, directors, employees, and agents of the Company Group involved, (vi) reasonably cooperating and assisting Purchaser in obtaining customary landlord consents, landlord waivers and estoppels and non-disturbance agreements relating to the Debt Financing; provided, that, in each case, where applicable, such documents will not take effect until the Closing; (Evii) providing customary authorization and/or representation letters Purchaser and its prospective Financing Sources, at reasonable times and with reasonable notice, access to the Company Group’s respective properties and facilities; (viii) using commercially reasonable best efforts to provide Purchaser and its prospective Financing Sources with other pertinent information regarding the Company Group as may be reasonably requested by Purchaser or such Financing Sources in connection with the distribution Debt Financing (A) in order to facilitate the pledging of the bank information memoranda contemplated by the Debt Commitment Letter to prospective lenders assets and identifying any portion of the information therein that constitutes material non-public information regarding the Business, Seller or its Subsidiaries; provided that such letters and confirmations expressly state that (x) Seller shall not have any liability of any kind or nature resulting from the use of information properties in connection with their cooperation with arranging the Debt Financing therewith and (yB) as needed to evaluate the recipient of such letters of authorization shall be entitled to rely only on the representations Company Group’s cash management and warranties contained in the Debt Financing Documents; (F) assisting with the preparation and negotiation ofaccounting systems, and facilitating the execution policies and delivery by the appropriate officers of any Purchased Company ofprocedures relating thereto, loan agreements, pledge and security documents and other definitive documents and/or certificates contemplated by the Debt Commitment Letter; (G) have a senior financial officer of any Purchased Company execute and deliver to the Financing Sources a solvency certificate in substantially the form attached to the Debt Commitment Letter; (H) cooperating in the replacement or backstop of any outstanding letters of credit issued for the account purpose of the Business or any Purchased Subsidiaries or any joint venture thereof; (I) furnish Buyer and the Financing Sources at least five Business Days prior to the Closing Date with all documentation and other information with respect to the Business and any Purchased Subsidiaries required by the Debt Commitment Letter required under applicable “know your customer” and anti-money laundering lawsestablishing collateral arrangements, rules and regulations, including the U.S. PATRIOT Act to the extent requested not less than 10 days prior to the Closing Date; (J) consenting to the use of the logos of the Business so long as such use is not reasonably likely to harm or disparage the Business or its reputation, goodwill, products, services, offerings or intellectual property rights; (K) obtaining customary payoff letters and related documents and instruments relating to the repayment of any exiting third party indebtedness for borrowed money required by the Debt Commitment Letter to be repaid on or coincidental with Closing; and (L) supplementing the information covered by this Section 5.22(a)(ii) on a current basis if such supplement is necessary to ensure that such information does not contain an untrue statement of a material fact or omit to state any material fact necessary to make such information not misleading; and
(iiiix) taking such actions as are within its control and reasonably requested by Buyer or its Financing Sources Purchaser to facilitate the satisfaction on a timely basis of all conditions precedent to obtaining the Debt Financing Conditions as set forth in the Debt Commitment Letters and provided that are within its control.
(b) Seller will use its reasonable best effortsthe Company Board shall not be required to approve the Debt Financing provided, that, no obligation of the Company Group under any Required Financing Deliverable or any other Contract relating to the Debt Financing shall be operative until the Closing Date and no personal liabilities shall be imposed on the officers, directors, employees, and will cause agents of the Company Group involved. The Company consents to the reasonable use of its Subsidiaries to use their reasonable best efforts, to provide to Buyer and its Financing Sources such information as may be necessary so that the information prepared logos in connection with the Debt Financing in a manner customary for such financing transactions; provided, that such logos shall be used solely in a manner that is not intended or reasonably likely to harm, disparage or otherwise adversely affect the Company Group. Notwithstanding the foregoing, nothing contained in this Section 4.9 shall require cooperation with the Financing Sources to the extent it would interfere unreasonably with the business or operations of the Company, or impose any liability on the Company prior to the Closing (other than in the case of a breach by the Company of this Section 4.9). Purchaser shall (i) pay for all of the out-of-pocket costs and expenses (including attorneys’ fees) incurred by Purchaser in connection with obtaining the marketing thereofDebt Financing and (ii) is complete promptly, upon request by the Company, reimburse the Company for all of its documented reasonable out-of-pocket costs and correct expenses (including reasonable attorneys’ fees) incurred by the Company in all material respects connection with the cooperation of the Company contemplated by this Section 4.9. Notwithstanding any other provisions set forth herein or in any other agreement between the Company and does not contain any untrue statement of a material fact Purchaser, the Company agrees that Purchaser and its Affiliates may share non-public or omit to state a material fact necessary to make confidential information regarding the statements contained therein, Company with the Financing Sources participating in the light Debt Financing, and that Purchaser and such Financing Sources may share such information with potential Financing Sources in connection with any Marketing Efforts in connection with the Debt Financing, provided that the recipients of such information agree to customary (including “click through”) confidentiality arrangements that are reasonably satisfactory to the Company and the Company acknowledges that the confidentiality provisions contained in the Debt Commitment Letters are reasonably satisfactory.
(b) Notwithstanding anything to the contrary contained herein, (i) prior to the Closing, no member of the circumstances Company Group shall be required to pay any commitment or other fee in connection with the Debt Financing, (ii) prior to the Closing, no member of the Company Group shall be required to incur, and none of them shall have, any liability or obligation under any loan agreement or any related document or any other agreement or document related to the Debt Financing, (iii) the pre-Closing directors and officers of the Company (who will not continue to be directors and officers post-Closing) and the pre-Closing directors and officers of the Subsidiary of the Company (who will not continue to be directors and officers post-Closing) shall not be required to adopt resolutions approving or to execute the contracts, agreements, documents and instruments pursuant to which such statements are madethe Debt Financing is obtained, not misleading(iv) neither the Company nor its Subsidiary shall be required to execute, prior to the Closing, any definitive financing documents, including any credit or other agreements, pledge or security documents, or other certificates or documents in connection with the Debt Financing, and (v) neither the Company nor its Subsidiary shall be required to take any corporate actions prior to the Closing to permit the consummation of the Debt Financing.
(c) Seller Notwithstanding anything to the contrary contained herein, each of Purchaser and Merger Sub expressly acknowledges and agrees that the Sellers and their respective Affiliates (excluding the Company Group) shall have no obligation, liability, or responsibility for or with respect to the right to review Debt Financing, and comment on marketing materials related other than as set forth above, the Company and the other members of the Company Group shall have no obligation, liability, or responsibility for or with respect to the Debt Financing prior to the dissemination of such materials to potential lenders or other counterparties to any proposed financing transaction (or filing with any Governmental Authority); provided, that Seller shall communicate in writing their comments, if any, to Buyer and its counsel within a reasonable period of time under the circumstances and consistent with the time accorded to other participants who were asked to review and comment on such materials. Notwithstanding anything in this Section 5.22 to the contrary, neither Seller nor any of its Affiliates shall be required to (i) pay any commitment fee or similar fee, (ii) except in the case of the Purchased Companies following the Closing and the execution of authorization and representation letters referred to in Section 5.22(a)(ii), incur any Liability (or cause their respective directors, officers or employees to incur any Liability) with respect to the cooperation described in this Section 5.22, (iii) approve or enter into any agreement or binding commitment, (iv) provide (or to have any of their respective Representatives provide) any opinions or reliance letters, in each case, with respect to or in connection with the Financing or the Sale Leaseback Financing, or (v) execute or deliver, or take any corporate or other action to adopt or approve, any documents, agreement, certificate or instrument with respect to the Financing, including any pledge or security documents or closing certificates (other than (x) the execution of authorization and representation letters referred to in Section 5.22(a)(ii) and (y) to the extent necessary for the valid and enforceable execution of definitive Financing documentation, such cooperation as is reasonably necessary to facilitate the adoption of resolutions and consents, as applicable); provided that the foregoing clause (y) shall not prevent any of the officers or directors of any Purchased Company who will remain officers and/or directors of a Purchased Company immediately following the Closing from executing documents, agreements, resolutions, certificates and instruments that do not become effective until the Closing.
(d) Buyer shall indemnify and hold harmless Seller and its AffiliatesEffective Time, and each of their respective directors, officers, employees, agents Purchaser and other Representatives from and against any and all Liabilities suffered or incurred in connection with the arrangement of the Debt Financing or the Sale Leaseback Financing or any assistance or activities provided in connection therewith (other than historical information relating to the Business provided by Seller or its Affiliates in writing for the purpose of arranging the Debt Financing); provided, however, that the foregoing shall not apply in Seller’s or its Affiliates’ or other Representatives’ willful misconduct or gross negligence. Buyer shall promptly reimburse Seller and its Affiliates for all documented out-of-pocket third party costs incurred by Seller and its Affiliates in connection with such cooperation.
(e) Notwithstanding anything to the contrary herein, it is understood and agreed that the condition set forth in Section 8.02(a), as applied to Seller’s obligations under this Section 5.22, shall be deemed to be satisfied unless the Financing or the Sale Leaseback Financing has not been obtained as a result of Sellers’s breach of its obligations under this Section 5.22 to the extent such breach impairs or adversely affects the Financing or the Sale Leaseback Financing, including the execution, timing and pricing or cost thereof, in a material manner. Buyer Merger Sub further expressly acknowledges and agrees that obtaining the Financing and the Sale Leaseback Financing are not conditions to Closing. None of Seller or any of its Affiliates shall have any obligations under this Section 5.22 following the consummation of the transactions contemplated herebyby this Agreement is in no way conditioned on or subject to the receipt by Purchaser, Merger Sub or any of their Affiliates or the Company of the proceeds of any such financing.
Appears in 1 contract
Debt Financing Cooperation. (a) Prior to the Closing, Seller shall, shall cause its Subsidiaries to, and shall use all its reasonable best efforts (including by seeking to enforce its rights under the Merger Agreement) to cause Tribune and its Affiliates and Representatives Subsidiaries to, use commercially reasonable efforts to provide such customary cooperation as is reasonably requested by Buyer in connection with the arrangement of the Debt Financing as is reasonably requested by Buyer; (provided that Seller and its Affiliates shall in no event be required to provide such assistance that shall unreasonably interfere with requested cooperation does not (a) require Seller, Tribune or any of their respective business operations. Such assistance shall includeSubsidiaries to take any action that would violate any Laws or would result in a violation or breach by Seller Tribune or any of their respective Subsidiaries, without limitationor default under, the following, each of any Contract to which shall be at Buyer’s request with reasonably practicable prior notice and at Buyer’s sole cost and expense:
(i) furnishing Buyer and its Financing Sources as promptly as practicable with (x) the financial statements and pro forma financial information referred to in the Commitment Letters (as in effect such Person is a party as of the date hereofhereof or (b) and result in any officer, manager or director of Seller, Tribune or any of their respective Subsidiaries incurring any personal liability), including by using commercially reasonable efforts to: (yi) [reserved], (ii) furnish to Buyer as promptly as reasonably practicable the Required Information, (iii) provide upon the reasonable request of Buyer such other pertinent and customary financial and other information customarily delivered in connection with Buyer’s preparation of reasonably necessary to prepare a customary bank book, confidential information memorandum, lender presentations, business projections and similar documents for financings that are similar to the Debt Financing and other marketing materials customarily used in connection with the syndication of financings that are similar to the Debt Financing reasonably requested by Buyer memorandum (including with respect a version that does not include material non-public information (provided Seller shall not be required to acquired entities) in order to market, syndicate and consummate determine whether any information provided by Seller constitutes material non-public information for the Debt Financing, )) and promptly provide Parent with any supplements other customary materials reasonably required to such information requested by Buyer pursuant to this clause (i);
(ii) participation by complete the senior management team of the Business in the marketing activities undertaken in connection with the marketing of the Debt Financingsyndication, including a customary authorization letter, (Aiv) assisting assist Buyer in the preparation of a customary bank book, confidential information memorandum, lender presentations, business projections and similar documents (BA) a reasonable number of meetings with prospective lenders or debt investors, sessions with rating agencies for the Debt Financing and due diligence sessions and otherwise assisting in marketing efforts related to the Debt Financing including, without limitation, direct contact between senior management and representatives of the Business, on the one hand, and the financing sources, potential lenders and investors for the Debt Financing (including, without limitation, the Financing Sources), on the other hand; (C) providing to Buyer from time to time information regarding the Business reasonably requested by the financing sources (including, without limitation, the Financing Sources) and assisting with the preparation of appropriate and customary materials for rating agency presentationsand investor presentations (including “roadshow” or investor meeting slides), registration statements, offering and syndication documents (including memoranda, prospectuses, private placement memoranda, lender and investor presentations, bank information memoranda other customary marketing materials and similar documents)(B) definitive documentation for the Debt Financing, (Dv) taking reasonable corporate actions, subject cooperate to and only effective upon facilitate the occurrence of the Closing, reasonably necessary to permit the consummation due diligence efforts of the Debt Financing; (E) providing customary authorization and/or representation letters in connection with the distribution of the bank information memoranda contemplated by the Debt Commitment Letter Financing Sources relating to prospective lenders and identifying any portion of the information therein that constitutes material non-public information regarding the Business, Seller or its to the extent customary and reasonable and not unreasonably interfering with the business of Seller, Tribune and their respective Subsidiaries; provided that such letters and confirmations expressly state that , (xvi) Seller shall not have any liability facilitate the release of any kind or nature resulting from Liens on the use Purchased Assets and the termination of information all guarantees (if any) in connection with their cooperation with arranging therewith at, and subject to the Debt Financing occurrence of, the Closing and (yvii) the recipient of such letters of authorization shall be entitled to rely only on the representations and warranties contained in the Debt Financing Documents; (F) assisting with the preparation and negotiation of, and facilitating the execution and delivery by the appropriate officers of any Purchased Company of, loan agreements, pledge and security documents and other definitive documents and/or certificates contemplated by the Debt Commitment Letter; (G) have a senior financial officer of any Purchased Company execute and deliver to the Financing Sources a solvency certificate in substantially the form attached to the Debt Commitment Letter; (H) cooperating in the replacement or backstop of any outstanding letters of credit issued for the account of the Business or any Purchased Subsidiaries or any joint venture thereof; (I) furnish Buyer and the Financing Sources provide at least five three (3) Business Days prior to the Closing Date with Date, all documentation and other information with respect to the Business and any Purchased Subsidiaries as is required by the Debt Commitment Letter required under applicable “know your customer” and anti-money laundering laws, rules and regulations including the USA PATRIOT and beneficial ownership regulations, including the U.S. PATRIOT Act to the extent reasonably requested not less than 10 days by Buyer at least ten (10) Business Days prior to the Closing Date; (J) consenting . Notwithstanding anything in this Agreement to the use of the logos of the Business so long as contrary, (1) no such use is not reasonably likely to harm or disparage the Business or its reputation, goodwill, products, services, offerings or intellectual property rights; (K) obtaining customary payoff letters and related documents and instruments relating cooperation shall be required to the repayment extent that it would require Seller, Tribune or any of their respective Subsidiaries to take any exiting third party indebtedness for borrowed money action that in the good faith judgment of Seller unreasonably interferes with the ongoing business operation of Seller, Tribune and/or their respective Subsidiaries or would require any directors, officers or employees to attend any bank meeting, rating agency presentation, roadshows or other marketing activities (other than, by any station managers who will continue to be employed by Buyer after the Closing), (2) none of Seller, Tribune or any of their respective Subsidiaries shall be required by to pay any commitment or other fee or incur any other liability or obligation in connection with the Debt Commitment Letter Financing, (3) none of Seller, Tribune or any of their respective Subsidiaries shall be required to do anything that would cause the representation or warranty of Seller in this Agreement to be repaid on breached or coincidental with Closing; any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement by Seller and (L4) supplementing none of Seller, Tribune or any of their respective Subsidiaries or their respective director, officer or employee shall be required to execute or deliver or have any liability or obligation under any loan agreement or any related document or any other agreement or document (including any certificates, legal opinions or pledge or security documents) related to the information covered Debt Financing. Buyer shall promptly, upon request by Seller, reimburse Seller for all reasonable and invoiced out-of- pocket costs (including reasonable attorneys’ fees) incurred by Seller, Tribune or any of their respective Subsidiaries in connection with the cooperation of Seller and its Affiliates contemplated by this Section 5.22(a)(ii) on a current basis if such supplement is necessary 5.7. All non-public or other confidential information provided by Seller, Tribune or any of their respective Subsidiaries pursuant to ensure this Agreement will be kept confidential in accordance with the Confidentiality Agreement, except that Buyer will be permitted to disclose such information does not contain an untrue statement of a material fact or omit to state any material fact necessary to make such information not misleading; and
(iii) taking such actions as are reasonably requested by Buyer or its Debt Financing Sources to facilitate the satisfaction on a timely basis of all Financing Conditions that are within its control.
(b) Seller will use its reasonable best efforts, and will cause its Subsidiaries to use their reasonable best efforts, to provide to Buyer and its or prospective Debt Financing Sources such information as and other financial institutions and investors that may be necessary so that become parties to the information prepared Debt Financing and to any underwriters, initial purchasers, lead arrangers or placement agents in connection with the Debt Financing (including the marketing thereof) is complete and correct in all material respects and does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein, in the light of the circumstances under which such statements are made, not misleading.
(c) Seller shall have the right to review and comment on marketing materials related to the Debt Financing prior to the dissemination of such materials to potential lenders or other counterparties to any proposed financing transaction (or filing with any Governmental Authority); provided, that Seller shall communicate in writing their comments, if any, to Buyer and its counsel within a reasonable period of time under the circumstances and consistent with the time accorded to other participants who were asked to review and comment on such materials. Notwithstanding anything in this Section 5.22 to the contrary, neither Seller nor any of its Affiliates shall be required to (i) pay any commitment fee or similar fee, (ii) except in the case of the Purchased Companies following the Closing and the execution of authorization and representation letters referred to in Section 5.22(a)(ii), incur any Liability (or cause their respective directors, officers or employees to incur any Liability) with respect to the cooperation described in this Section 5.22, (iii) approve or enter into any agreement or binding commitment, (iv) provide (or to have any of their respective Representatives provide) any opinions or reliance lettersand, in each case, with respect to or in connection with the Financing or the Sale Leaseback Financing, or (vtheir respective counsel and auditors) execute or deliver, or take any corporate or other action to adopt or approve, any documents, agreement, certificate or instrument with respect to the Financing, including any pledge or security documents or closing certificates (other than so long as such Persons (x) agree to be bound by the execution of authorization and representation letters referred Confidentiality Agreement as if parties thereto or other confidentiality obligations that are substantially similar to those contained in Section 5.22(a)(ii) and the Confidentiality Agreement or (y) are subject to the extent necessary for the valid and enforceable execution of definitive Financing documentationcustomary confidentiality arrangements, such cooperation as is reasonably necessary to facilitate the adoption of resolutions and consents, as applicable); provided that the foregoing clause (y) shall not prevent any of the officers or directors of any Purchased Company who will remain officers and/or directors of a Purchased Company immediately following the Closing from executing documents, agreements, resolutions, certificates and instruments that do not become effective until the Closing.
(d) Buyer shall indemnify and hold harmless Seller and its Affiliates, and each of their respective directors, officers, employees, agents and other Representatives from and against any and all Liabilities suffered or incurred in connection with the arrangement of the Debt Financing or the Sale Leaseback Financing or any assistance or activities provided in connection therewith (other than historical information relating to the Business provided by Seller or its Affiliates in writing for the purpose of arranging the Debt Financing); provided, however, that the foregoing shall not apply in Seller’s or its Affiliates’ or other Representatives’ willful misconduct or gross negligence. confidentiality undertakings reasonably satisfactory to Buyer shall promptly reimburse Seller and its Affiliates for all documented out-of-pocket third party costs incurred by Seller and its Affiliates in connection with such cooperationof which Buyer is a beneficiary.
(e) Notwithstanding anything to the contrary herein, it is understood and agreed that the condition set forth in Section 8.02(a), as applied to Seller’s obligations under this Section 5.22, shall be deemed to be satisfied unless the Financing or the Sale Leaseback Financing has not been obtained as a result of Sellers’s breach of its obligations under this Section 5.22 to the extent such breach impairs or adversely affects the Financing or the Sale Leaseback Financing, including the execution, timing and pricing or cost thereof, in a material manner. Buyer acknowledges and agrees that obtaining the Financing and the Sale Leaseback Financing are not conditions to Closing. None of Seller or any of its Affiliates shall have any obligations under this Section 5.22 following the consummation of the transactions contemplated hereby.
Appears in 1 contract
Debt Financing Cooperation. (a) Prior to the Closing, Seller shall, shall provide and shall use all its reasonable best efforts to cause its Affiliates Representatives, including its legal and Representatives toaccounting advisors, to provide such all cooperation reasonably requested by Purchaser in connection with the arrangement of Purchaser’s debt financing to consummate the transactions contemplated herein (the “Debt Financing as is reasonably requested by Buyer; provided that Seller and its Affiliates shall in no event be required to provide such assistance that shall unreasonably interfere with their respective business operations. Such assistance shall includeFinancing”), including without limitation, the following, each of which shall be at Buyer’s request with reasonably practicable prior notice and at Buyer’s sole cost and expense:
(i) furnishing Buyer Purchaser and its the parties providing or potentially providing the Debt Financing Sources (whether directly to Purchaser or to an Affiliate of Purchaser, the “Purchaser Lenders”) as promptly as practicable with the financial and other pertinent information regarding Seller and the Business reasonably requested by Purchaser or the Purchaser Lenders to consummate the Debt Financing (x) the including financial reports and historical financial statements and pro forma financial information referred to in projections, each for the Commitment Letters (Business as in effect as of the date hereof) and (y) such other pertinent and customary financial and other information customarily delivered in connection with Buyer’s preparation of a customary bank book, confidential information memorandum, lender presentations, business projections and similar documents for financings that are similar to the Debt Financing and other marketing materials customarily used in connection with the syndication of financings that are similar to the Debt Financing reasonably requested by Buyer (including with respect to acquired entities) in order to market, syndicate and consummate the Debt Financingstandalone segment, and promptly provide Parent with any supplements to including a segment-based allocation of expenses in such financial statements) (all such information requested by Buyer pursuant to in this clause (i), the “Required Information”);
(ii) participation by the senior management team of the Business participating in the marketing activities undertaken in connection with the marketing of the Debt Financing, including (A) assisting in the preparation of a customary bank book, confidential information memorandum, lender presentations, business projections and similar documents (B) a reasonable number of meetings (including customary one-on-one meetings with the parties acting as prospective lenders or debt investors, sessions with rating agencies for of the Debt Financing and senior management, representatives, or advisors, with appropriate seniority and expertise, of Seller), presentations and due diligence sessions and otherwise assisting in marketing efforts related to the Debt Financing including, without limitation, direct contact between senior management and representatives of the Business, on the one hand, and the financing sources, potential lenders and investors for the Debt Financing (including, without limitation, the Financing Sources), on the other hand; (C) providing to Buyer from time to time information regarding the Business reasonably requested by the financing sources (including, without limitation, the Financing Sources) and assisting with the preparation of appropriate and customary materials for rating agency presentations, offering and syndication documents (including prospectuses, private placement memoranda, lender and investor presentations, bank information memoranda and similar documents), (D) taking reasonable corporate actions, subject to and only effective upon the occurrence of the Closing, reasonably necessary to permit the consummation of the Debt Financing; (E) providing customary authorization and/or representation letters activities in connection with the distribution of Debt Financing;
(iii) using reasonable best efforts to obtain consents, legal opinions, surveys, and title insurance as reasonably requested by Purchaser or the bank information memoranda contemplated by Purchaser Lenders as necessary and customary for financings similar to the Debt Commitment Letter to prospective lenders and identifying any portion of the information therein that constitutes material non-public information regarding the Business, Seller or its Subsidiaries; provided that such letters and confirmations expressly state that Financing;
(xiv) Seller shall not have any liability of any kind or nature resulting from the use of information consulting with Purchaser in connection with their cooperation with arranging the Debt Financing negotiation of and executing such definitive financing documents and agreements and such other customary documents (yincluding officers’ certificates) the recipient of as may be reasonably requested by Purchaser, provided no such letters of authorization document shall be entitled to rely only on operative until the representations and warranties contained in the Debt Financing Documents; Closing;
(Fv) assisting with the preparation and negotiation of, and facilitating the execution pledging of collateral, provided that no pledge shall be operative until the Closing;
(vi) permitting the Purchaser Lenders to evaluate and delivery assess the assets of the Company for the purpose of establishing collateral arrangements and determining collateral values, to the extent customary and reasonable;
(vii) obtaining customary payoff letters and customary instruments of discharge and termination of all Indebtedness and Liens relating to the Transferred Assets, as reasonably requested by Purchaser, which shall not be operative until the appropriate officers Closing;
(viii) facilitating the production of any Purchased Company of, loan agreements, pledge and security documents and other definitive documents and/or certificates contemplated by due diligence items that the Debt Commitment Letter; Purchaser Lenders may reasonably request;
(Gix) have a senior financial officer of any Purchased Company execute and deliver to the Financing Sources a solvency certificate in substantially the form attached to the Debt Commitment Letter; (H) cooperating in the replacement or backstop of any outstanding letters of credit issued for the account of the Business or any Purchased Subsidiaries or any joint venture thereof; (I) furnish Buyer and the Financing Sources at least five seven (7) Business Days prior to the Closing Date with Date, providing all documentation and other information about Seller as is reasonably requested by the Purchaser Lenders with respect to the Business and any Purchased Subsidiaries required by the Debt Commitment Letter required under applicable “know your customer” and anti-money laundering laws, rules and regulations, regulations including without limitation as related to “anti-social forces” (hanshakaiseiryoku) under Japanese law (provided that the U.S. PATRIOT Act to the extent requested not less than 10 days request by Purchaser for such information is received by Seller at least ten Business Days prior to the Closing Date; (J) consenting ). Nothing contained in this Section 5.20 or otherwise shall require Seller or any of its subsidiaries, to be an issuer or other obligor with respect to the use of the logos of the Business so long as such use is not reasonably likely to harm or disparage the Business or its reputation, goodwill, products, services, offerings or intellectual property rights; (K) obtaining customary payoff letters and related documents and instruments relating to the repayment of any exiting third party indebtedness for borrowed money required by the Debt Commitment Letter to be repaid on or coincidental with Closing; and (L) supplementing the information covered by this Section 5.22(a)(ii) on a current basis if such supplement is necessary to ensure that such information does not contain an untrue statement of a material fact or omit to state any material fact necessary to make such information not misleading; and
(iii) taking such actions as are reasonably requested by Buyer or its Financing Sources to facilitate the satisfaction on a timely basis of all Financing Conditions that are within its controlFinancing.
(b) All nonpublic or otherwise confidential information regarding Seller will use obtained by Purchaser or its reasonable best effortsRepresentatives pursuant to this Section 5.20 shall be kept confidential in accordance with the Confidentiality Agreement, and will cause its Subsidiaries except that Purchaser shall be permitted to use their reasonable best efforts, to provide to Buyer and its Financing Sources disclose such information as may be necessary so that the information prepared in connection with the Debt Financing (including the marketing thereof) is complete and correct in all material respects and does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein, in the light of the circumstances under which such statements are made, not misleading.
(c) Seller shall have the right to review and comment on marketing materials related to the Debt Financing prior to the dissemination of such materials to potential lenders or other counterparties to any proposed financing transaction (or filing with any Governmental Authority); provided, that Seller shall communicate in writing their comments, if any, to Buyer and its counsel within a reasonable period of time under the circumstances and consistent with the time accorded to other participants who were asked to review and comment on such materials. Notwithstanding anything in this Section 5.22 to the contrary, neither Seller nor any of its Affiliates shall be required to (i) pay any commitment fee or similar fee, (ii) except in the case of the Purchased Companies following the Closing and the execution of authorization and representation letters referred to in Section 5.22(a)(ii), incur any Liability (or cause their respective directors, officers or employees to incur any Liability) with respect to the cooperation described in this Section 5.22, (iii) approve or enter into any agreement or binding commitment, (iv) provide (or to have any of their respective Representatives provide) any opinions or reliance letters, in each case, with respect to or in connection with the Financing or the Sale Leaseback Financing, or (v) execute or deliver, or take any corporate or other action to adopt or approve, any documents, agreement, certificate or instrument with respect to the Financing, including any pledge or security documents or closing certificates (other than (x) the execution of authorization and representation letters referred to in Section 5.22(a)(ii) and (y) to the extent necessary for the valid and enforceable execution of definitive Financing documentation, such cooperation as is reasonably necessary to facilitate the adoption of resolutions and consents, as applicable); provided that the foregoing clause (y) shall not prevent any of the officers or directors of any Purchased Company who will remain officers and/or directors of a Purchased Company immediately following the Closing from executing documents, agreements, resolutions, certificates and instruments that do not become effective until the ClosingPurchaser Lenders.
(d) Buyer shall indemnify and hold harmless Seller and its Affiliates, and each of their respective directors, officers, employees, agents and other Representatives from and against any and all Liabilities suffered or incurred in connection with the arrangement of the Debt Financing or the Sale Leaseback Financing or any assistance or activities provided in connection therewith (other than historical information relating to the Business provided by Seller or its Affiliates in writing for the purpose of arranging the Debt Financing); provided, however, that the foregoing shall not apply in Seller’s or its Affiliates’ or other Representatives’ willful misconduct or gross negligence. Buyer shall promptly reimburse Seller and its Affiliates for all documented out-of-pocket third party costs incurred by Seller and its Affiliates in connection with such cooperation.
(e) Notwithstanding anything to the contrary herein, it is understood and agreed that the condition set forth in Section 8.02(a), as applied to Seller’s obligations under this Section 5.22, shall be deemed to be satisfied unless the Financing or the Sale Leaseback Financing has not been obtained as a result of Sellers’s breach of its obligations under this Section 5.22 to the extent such breach impairs or adversely affects the Financing or the Sale Leaseback Financing, including the execution, timing and pricing or cost thereof, in a material manner. Buyer acknowledges and agrees that obtaining the Financing and the Sale Leaseback Financing are not conditions to Closing. None of Seller or any of its Affiliates shall have any obligations under this Section 5.22 following the consummation of the transactions contemplated hereby.
Appears in 1 contract
Debt Financing Cooperation. (a) Seller Prior to the Closing, the Acquired Company shall, and shall cause each of its Subsidiaries to, and shall use all its reasonable best efforts to cause its Affiliates and Representatives to, use commercially reasonable to provide such all cooperation reasonably requested by Purchaser in connection with the arrangement of the Debt Financing, which commercially reasonable efforts shall include:
(a) furnishing Purchaser as promptly as reasonably practicable with (1) financial information and other pertinent information regarding the Acquired Company and its Subsidiaries as may be reasonably requested by Purchaser to consummate the Debt Financing as is reasonably requested by Buyer; provided customary to be included in marketing materials for senior secured notes (or any documentation or deliverables in connection therewith) and (2) (A) all information and data that Seller would be necessary for the Debt Financing Party to receive customary “comfort” letters from the independent accountants of the Acquired Company in connection with such an offering, and its Affiliates shall in no event be required to provide (B) drafts of such assistance that shall unreasonably interfere with their respective business operations. Such assistance shall include, without limitation, the following, each of “comfort” letters (which shall be at Buyer’s request with reasonably practicable prior notice provide customary “negative assurance” comfort) which such accountants are prepared to issue upon completion of customary procedures and at Buyer’s sole cost (C) all other information and expense:
data necessary for the Purchaser to satisfy the conditions set forth in paragraph 4 and subsection (i) furnishing Buyer and its Financing Sources as promptly as practicable with (x) the financial statements and pro forma financial information referred to in the Commitment Letters (as in effect as of paragraph 8 of Exhibit C of the date hereofDebt Commitment Letter (all such information described in this clause (a)(2), the “Required Information”);
(b) participating in a reasonable number of meetings, presentations, road shows, due diligence sessions, drafting sessions, meetings with prospective debtholders and (y) such other pertinent and customary financial and other information customarily delivered sessions with rating agencies in connection with Buyer’s preparation of a customary bank book, confidential information memorandum, lender presentations, business projections and similar documents for financings that are similar to the Debt Financing and other marketing materials customarily used in connection with the syndication of financings that are similar to the Debt Financing reasonably requested by Buyer (including with respect to acquired entities) in order to market, syndicate and consummate the Debt Financing, and promptly provide Parent assisting with any supplements the preparation of materials for rating agency presentations, road show presentations, offering memoranda, bank information memoranda (including, to such the extent necessary, an additional bank information requested by Buyer pursuant to this clause (i);
(iimemorandum that does not include material non-public information) participation by the senior management team of the Business in the marketing activities undertaken and similar documents required in connection with the marketing of Debt Financing;
(c) cooperating reasonably with the Debt Financing Parties’ due diligence, to the extent customary and reasonable, in connection with the Debt Financing, ;
(d) obtaining customary comfort letters of independent accountants (including “negative assurance” comfort) as reasonably requested by Purchaser as necessary and customary for financings similar to the Debt Financing;
(Ae) assisting reasonably in the preparation of a customary bank book, confidential information memorandum, lender presentations, business projections and similar documents (B) a reasonable number of meetings with prospective lenders or debt investors, sessions with rating agencies for the Debt Financing and due diligence sessions and otherwise assisting in marketing efforts related to the Debt Financing including, without limitation, direct contact between senior management and representatives of the Business, on the one hand, and the financing sources, potential lenders and investors for the Debt Financing (including, without limitation, the Financing Sources), on the other hand; (C) providing to Buyer from time to time information regarding the Business reasonably requested by the financing sources (including, without limitation, the Financing Sources) and assisting with the preparation of appropriate and customary materials for rating agency presentations, offering and syndication documents (including prospectusesdocuments, private placement memoranda, lender and investor presentations, bank information memoranda prospectuses and similar documents), documents to be used in connection with the offering of notes in connection with the Debt Financing;
(Df) taking reasonable reasonably assisting Purchaser in procuring a public corporate actions, subject to credit rating and only effective upon the occurrence a public corporate family rating in respect of the Closingrelevant borrower under the notes to be offered in connection with the Debt Financing;
(g) executing and delivering any necessary and customary guarantees, and other definitive financing documents (including one or more note purchase agreements, indentures and/or other instruments) on terms satisfactory to Purchaser in connection with such Debt Financing or other certificates or documents as may reasonably be requested by Purchaser and reasonably assisting Purchaser with respect to the taking of all corporation actions by the Acquired Company and its Subsidiaries with respect to entering such definitive financing documents and otherwise necessary to permit the consummation of the Debt Financing; ;
(Eh) providing customary authorization and/or representation letters in connection with the distribution obtaining consents of the bank information memoranda contemplated by the Debt Commitment Letter to prospective lenders and identifying any portion of the information therein that constitutes material non-public information regarding the Business, Seller or its Subsidiaries; provided that such letters and confirmations expressly state that (x) Seller shall not have any liability of any kind or nature resulting from the accountants for use of information their 2012, 2013 and 2014 audit reports in connection with their cooperation with arranging the Debt Financing and (y) the recipient of such letters of authorization shall be entitled to rely only on the representations and warranties contained in the Debt Financing Documents; (F) assisting with the preparation and negotiation of, and facilitating the execution and delivery by the appropriate officers of any Purchased Company of, loan agreements, pledge and security documents and other definitive documents and/or certificates contemplated by the Debt Commitment Letter; (G) have a senior financial officer of any Purchased Company execute and deliver to the Financing Sources a solvency certificate in substantially the form attached materials relating to the Debt Commitment LetterFinancing; and
(Hi) cooperating in the replacement or backstop of any outstanding letters of credit issued for the account of the Business or any Purchased Subsidiaries or any joint venture thereof; (I) furnish Buyer and the Financing Sources at least five three (3) Business Days prior to the Closing Date with Closing, providing all documentation and other information with respect to about the Business and any Purchased Subsidiaries required Acquired Company that is reasonably requested by the Debt Commitment Letter Financing Parties and the Debt Financing Parties reasonably determine is required under by applicable “know your customer” and anti-money laundering laws, rules and regulationsregulations including without limitation the USA PATRIOT Act, including the U.S. PATRIOT Act to the extent requested not less than 10 days by the Purchaser in writing at least eight (8) Business Days prior to the Closing Date; (J) consenting to the use of the logos of the Business so long as such use is not reasonably likely to harm or disparage the Business or its reputation, goodwill, products, services, offerings or intellectual property rights; (K) obtaining customary payoff letters and related documents and instruments relating to the repayment of any exiting third party indebtedness for borrowed money required by the Debt Commitment Letter to be repaid on or coincidental with Closing; and (L) supplementing the information covered by this Section 5.22(a)(ii) on a current basis if such supplement is necessary to ensure that such information does not contain an untrue statement of a material fact or omit to state any material fact necessary to make such information not misleading; and
(iii) taking such actions as are reasonably requested by Buyer or its Financing Sources to facilitate the satisfaction on a timely basis of all Financing Conditions that are within its control.
(b) Seller will use its reasonable best efforts, and will cause its Subsidiaries to use their reasonable best efforts, to provide to Buyer and its Financing Sources such information as may be necessary so that the information prepared in connection with the Debt Financing (including the marketing thereof) is complete and correct in all material respects and does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein, in the light of the circumstances under which such statements are made, not misleading.
(c) Seller shall have the right to review and comment on marketing materials related to the Debt Financing prior to the dissemination of such materials to potential lenders or other counterparties to any proposed financing transaction (or filing with any Governmental Authority); provided, that Seller shall communicate in writing their comments, if any, to Buyer and its counsel within a reasonable period of time under the circumstances and consistent with the time accorded to other participants who were asked to review and comment on such materials. Notwithstanding anything in this Section 5.22 to the contrary, neither Seller nor any of its Affiliates shall be required to (i) pay any commitment fee or similar fee, (ii) except in the case of the Purchased Companies following the Closing and the execution of authorization and representation letters referred to in Section 5.22(a)(ii), incur any Liability (or cause their respective directors, officers or employees to incur any Liability) with respect to the cooperation described in this Section 5.22, (iii) approve or enter into any agreement or binding commitment, (iv) provide (or to have any of their respective Representatives provide) any opinions or reliance letters, in each case, with respect to or in connection with the Financing or the Sale Leaseback Financing, or (v) execute or deliver, or take any corporate or other action to adopt or approve, any documents, agreement, certificate or instrument with respect to the Financing, including any pledge or security documents or closing certificates (other than (x) the execution of authorization and representation letters referred to in Section 5.22(a)(ii) and (y) to the extent necessary for the valid and enforceable execution of definitive Financing documentation, such cooperation as is reasonably necessary to facilitate the adoption of resolutions and consents, as applicable); provided that the foregoing clause (y) shall not prevent any of the officers or directors of any Purchased Company who will remain officers and/or directors of a Purchased Company immediately following the Closing from executing documents, agreements, resolutions, certificates and instruments that do not become effective until the Closing.
(d) Buyer shall indemnify and hold harmless Seller and its Affiliates, and each of their respective directors, officers, employees, agents and other Representatives from and against any and all Liabilities suffered or incurred in connection with the arrangement of the Debt Financing or the Sale Leaseback Financing or any assistance or activities provided in connection therewith (other than historical information relating to the Business provided by Seller or its Affiliates in writing for the purpose of arranging the Debt Financing); provided, however, that the foregoing shall not apply in Seller’s or its Affiliates’ or other Representatives’ willful misconduct or gross negligence. Buyer shall promptly reimburse Seller and its Affiliates for all documented out-of-pocket third party costs incurred by Seller and its Affiliates in connection with such cooperation.
(e) Notwithstanding anything to the contrary herein, it is understood and agreed that the condition set forth in Section 8.02(a), as applied to Seller’s obligations under this Section 5.22, shall be deemed to be satisfied unless the Financing or the Sale Leaseback Financing has not been obtained as a result of Sellers’s breach of its obligations under this Section 5.22 to the extent such breach impairs or adversely affects the Financing or the Sale Leaseback Financing, including the execution, timing and pricing or cost thereof, in a material manner. Buyer acknowledges and agrees that obtaining the Financing and the Sale Leaseback Financing are not conditions to Closing. None of Seller or any of its Affiliates shall have any obligations under this Section 5.22 following the consummation of the transactions contemplated hereby.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Ferrellgas Partners Finance Corp)
Debt Financing Cooperation. (a) Seller shallPrior to the Closing, and subject to limitations in and prior to the termination of, this Agreement, Parent shall and shall cause its applicable Subsidiaries to, at the Company’s sole cost and expense, use all reasonable best efforts to cause the appropriate officers and employees of Parent and its Affiliates and Representatives to, applicable Subsidiaries to provide such cooperation as is necessary, customary and reasonably requested by the Company solely in connection with the arrangement of Company’s efforts to obtain the Debt Financing as is reasonably requested by Buyer; (provided that Seller and its Affiliates shall in no event be required to provide such assistance that shall unreasonably interfere with their respective business operations. Such assistance shall include, without limitation, the following, each of which shall be at Buyer’s request with reasonably practicable prior notice and at Buyer’s sole cost and expense:
(i) furnishing Buyer and its Financing Sources as promptly as practicable with (x) none of Parent, its Subsidiaries or any of their respective officers or employees shall be obligated to cooperate with obtaining any type of financing that is more burdensome to Parent or any of its Subsidiaries in respect of its obligations under this clause (a) than the financial statements and pro forma financial information referred to financing contemplated as the Debt Financing in the Debt Commitment Letters (Letter as in effect as of on the date hereof) , and (y) such other pertinent requested cooperation does not unreasonably interfere with the ongoing operations of Parent or its Subsidiaries) including by, (i) causing appropriate senior officers to participate in a reasonable number of meetings and due diligence sessions with providers or potential providers of the Debt Financing (which shall be limited to teleconference or virtual meeting platforms), and ratings agencies, in each case during 87 normal business hours and at mutually agreed times upon reasonable advance notice, (ii) assisting the Company in the preparation of customary financial and other information customarily delivered marketing materials required in connection with Buyer’s preparation of a obtaining the Debt Financing, in each case, solely with respect to information relating to Parent (to the extent related to its business) and its Subsidiaries and customary bank book, confidential information memorandum, lender presentations, business projections and similar documents for financings that are similar to the Debt Financing and other marketing materials customarily used in connection with the syndication of financings that are similar Financing, (iii) (x) providing reasonably promptly to the Debt Financing reasonably requested by Buyer Company pertinent financial and operating information regarding Parent and its Subsidiaries (including with respect other than pro forma financial information and pro forma financial statements referred to acquired entitiesin clause (y) of this Section 7.13(a)(iii)(x)) customarily provided in order to market, syndicate and consummate debt financings such as the Debt Financing, and promptly provide Parent (y) reasonably assisting the Company with the preparation of pro forma financial information and pro forma financial statements reflecting the transactions contemplated hereby and the Debt Financing, it being agreed that the Company shall be solely responsible for the preparation of any supplements to pro forma financial statements, pro forma financial information and marketing materials for the Debt Financing, (iv) executing and delivering customary authorization letters (provided that such customary authorization letters, or the bank information requested by Buyer pursuant to this clause (i);
(ii) participation by the senior management team of the Business memoranda in the marketing activities undertaken which such letters are included, shall include language that exculpates Parent, its Subsidiaries and their respective representatives and Affiliates from any liability in connection with the marketing unauthorized use by the recipients thereof of the Debt Financinginformation set forth in any such bank information memoranda or similar memoranda or report distributed in connection therewith) and other reasonable and customary closing certificates and other definitive financing documentation, including in each case (A) assisting other than with respect to such authorization letters), subject to the occurrence of the Closing and limited, in the preparation case of a execution and delivery (other than with respect to such authorization letters), solely to officers continuing with Parent and its Subsidiaries after the Closing), (v) providing reasonable and customary bank book, confidential information memorandum, lender presentations, business projections and similar documents (B) a reasonable number of meetings assistance with prospective lenders or debt investors, sessions with rating agencies the preparations for the Debt Financing and due diligence sessions and otherwise assisting in marketing efforts related to the Debt Financing including, without limitation, direct contact between senior management and representatives provision of the Business, on the one hand, guarantees and the financing sources, potential lenders pledging of collateral and investors for delivering original certificates with respect to all certificated securities constituting collateral under the Debt Financing (including, without limitation, with transfer powers executed in blank) (it being understood that no such providing of guarantees or pledging of collateral will be effective until at or after the Financing Sources), on the other hand; (C) providing to Buyer from time to time information regarding the Business reasonably requested by the financing sources (including, without limitation, the Financing Sources) and assisting with the preparation of appropriate and customary materials for rating agency presentations, offering and syndication documents (including prospectuses, private placement memoranda, lender and investor presentations, bank information memoranda and similar documentsClosing), (Dvi) taking reasonable corporate actionsfurnishing, subject at least four (4) Business Days prior to the Closing Date, information and only effective upon the occurrence of the Closing, documentation related to Parent and its Subsidiaries reasonably necessary to permit the consummation of the Debt Financing; (E) providing customary authorization and/or representation letters requested in connection with the distribution of the bank information memoranda contemplated writing by the Debt Commitment Letter to prospective lenders and identifying any portion of the information therein that constitutes material non-public information regarding the Business, Seller or its Subsidiaries; provided that such letters and confirmations expressly state that (x) Seller shall not have any liability of any kind or nature resulting from the use of information in connection with their cooperation with arranging the Debt Financing and (y) the recipient of such letters of authorization shall be entitled to rely only on the representations and warranties contained in the Debt Financing Documents; (F) assisting with the preparation and negotiation of, and facilitating the execution and delivery by the appropriate officers of any Purchased Company of, loan agreements, pledge and security documents and other definitive documents and/or certificates contemplated by the Debt Commitment Letter; (G) have a senior financial officer of any Purchased Company execute and deliver to the Financing Sources a solvency certificate in substantially the form attached to the Debt Commitment Letter; (H) cooperating in the replacement or backstop of any outstanding letters of credit issued for the account of the Business or any Purchased Subsidiaries or any joint venture thereof; (I) furnish Buyer and the Financing Sources at least five eight (8) Business Days prior to the Closing Date with all documentation and other information with respect to the Business and any Purchased Subsidiaries required by the Debt Commitment Letter as may be required under applicable “know your customer” laws and anti-money laundering laws, rules and regulations, including the U.S. USA PATRIOT Act and the “beneficial ownership” regulations, (vii) delivering notices of prepayment for the repayment in full of the indebtedness under the Parent Credit Agreement to the extent requested not less than 10 days prior required under the terms of the Parent Credit Agreement (which notices may be conditioned on the occurrence of the Closing) or obtain a waiver thereof in the Parent Payoff Letter, and (viii) reasonably permit the administrative agent under the Company Existing ABL Credit Agreement to conduct “asset based lending” field examinations and appraisals with respect to Parent and its Subsidiaries (and reasonably assist in the Virgo Borrower’s preparation of a customary “borrowing base certificate” under the Company Existing ABL Credit Agreement in respect of Parent and its Subsidiaries). Notwithstanding anything in this Agreement to the Closing Date; (J) consenting to the use contrary, none of Parent, its Subsidiaries or any officer, employee or representative of any of the logos of the Business so long foregoing, shall be required to (A) provide Excluded Information, (B) pay any commitment or other similar fee, (C) provide Regulation S-X compliant financial statements or any other financial data other than that as such use is not reasonably likely to harm or disparage the Business or its reputation, goodwill, products, services, offerings or intellectual property rights; (K) obtaining customary payoff letters and related documents and instruments relating to the repayment of any exiting third party indebtedness for borrowed money required by the Debt Commitment Letter to be repaid on Section 7.13(a)(iii) (except as otherwise required under this Agreement), (D) approve any document or coincidental with Closing; and (L) supplementing the information covered by this Section 5.22(a)(ii) on a current basis if such supplement is necessary to ensure that such information does not contain an untrue statement of a material fact or omit to state any material fact necessary to make such information not misleading; and
(iii) taking such actions as are reasonably requested by Buyer or its Financing Sources to facilitate the satisfaction on a timely basis of all Financing Conditions that are within its control.
(b) Seller will use its reasonable best efforts, and will cause its Subsidiaries to use their reasonable best efforts, to provide to Buyer and its Financing Sources such information as may be necessary so that the information prepared in connection with the Debt Financing (including the marketing thereof) is complete and correct in all material respects and does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein, in the light of the circumstances under which such statements are made, not misleading.
(c) Seller shall have the right to review and comment on marketing materials other matter related to the Debt Financing or incur or reimburse any costs or expenses or incur any other liability or obligation of any kind or give any indemnities prior to the dissemination of such materials to potential lenders or other counterparties to any proposed financing transaction (or filing with any Governmental Authority); provided, that Seller shall communicate in writing their comments, if any, to Buyer and its counsel within a reasonable period of time under the circumstances and consistent with the time accorded to other participants who were asked to review and comment on such materials. Notwithstanding anything in this Section 5.22 to the contrary, neither Seller nor any of its Affiliates shall be required to (i) pay any commitment fee or similar fee, (ii) except in the case of the Purchased Companies following the Closing and the execution of authorization and representation letters referred to in Section 5.22(a)(ii), incur any Liability (or cause their respective directors, officers or employees to incur any Liability) with respect to the cooperation described in this Section 5.22, (iii) approve or enter into any agreement or binding commitment, (iv) provide (or to have any of their respective Representatives provide) any opinions or reliance letters, in each case, with respect to or in connection with the Financing or the Sale Leaseback Financing, or (v) execute or deliver, or take any corporate or other action to adopt or approve, any documents, agreement, certificate or instrument with respect to the Financing, including any pledge or security documents or closing certificates (other than (x) the execution of authorization and representation letters referred to in Section 5.22(a)(ii) and (y) to the extent necessary for the valid and enforceable execution of definitive Financing documentation, such cooperation as is reasonably necessary to facilitate the adoption of resolutions and consents, as applicable); provided that the foregoing clause (y) shall not prevent any of the officers or directors of any Purchased Company who will remain officers and/or directors of a Purchased Company immediately following the Closing from executing documents, agreements, resolutions, certificates and instruments that do not become effective until the Closing.
(d) Buyer shall indemnify and hold harmless Seller and its Affiliates, and each of their respective directors, officers, employees, agents and other Representatives from and against any and all Liabilities suffered or incurred in connection with the arrangement of the Debt Financing or the Sale Leaseback Financing or any assistance or activities provided in connection therewith (other than historical information relating to the Business provided by Seller or its Affiliates in writing for the purpose of arranging the Debt Financing); provided, however, that the foregoing shall not apply in Seller’s or its Affiliates’ or other Representatives’ willful misconduct or gross negligence. Buyer shall promptly reimburse Seller and its Affiliates for all documented out-of-pocket third party costs incurred by Seller and its Affiliates in connection with such cooperation.
(e) Notwithstanding anything to the contrary herein, it is understood and agreed that the condition set forth in Section 8.02(a), as applied to Seller’s obligations under this Section 5.22, shall be deemed to be satisfied unless the Financing or the Sale Leaseback Financing has not been obtained as a result of Sellers’s breach of its obligations under this Section 5.22 to the extent such breach impairs or adversely affects the Financing or the Sale Leaseback Financing, including the execution, timing and pricing or cost thereof, in a material manner. Buyer acknowledges and agrees that obtaining the Financing and the Sale Leaseback Financing are not conditions to Closing. None of Seller or any of its Affiliates shall have any obligations under this Section 5.22 following the consummation of the transactions contemplated hereby.Debt
Appears in 1 contract
Samples: Merger Agreement (Vectrus, Inc.)
Debt Financing Cooperation. (a) Seller shallThe Company shall use its reasonable best efforts to, and shall cause its Subsidiaries and its and their respective Representatives to use all their reasonable best efforts to cause its Affiliates and Representatives to, provide such all cooperation in connection with the arrangement of the Debt Financing as is may be reasonably requested by Buyer; provided Parent that Seller is necessary and its Affiliates shall customary for financings of the type contemplated by the Debt Commitment Letter as in no event be required to provide such assistance that shall unreasonably interfere effect on the date hereof, including using reasonable best efforts in connection with their respective business operations. Such assistance shall include, without limitation, the following, each of which shall be at Buyer’s request with reasonably practicable prior notice and at Buyer’s sole cost and expense:
(i) furnishing Buyer and its Financing Sources as promptly as practicable with (x) the financial statements and pro forma financial information referred to participating in the Commitment Letters (as in effect as of the date hereof) and (y) such other pertinent and customary financial and other information customarily delivered in connection with Buyer’s preparation of a customary bank book, confidential information memorandum, lender presentations, business projections and similar documents for financings that are similar to the Debt Financing and other marketing materials customarily used in connection with the syndication of financings that are similar to the Debt Financing reasonably requested by Buyer (including with respect to acquired entities) in order to market, syndicate and consummate the Debt Financing, and promptly provide Parent with any supplements to such information requested by Buyer pursuant to this clause (i);
(ii) participation by the senior management team of the Business in the marketing activities undertaken in connection with the marketing of the Debt Financing, including (A) assisting in the preparation of a customary bank book, confidential information memorandum, lender presentations, business projections and similar documents (B) a reasonable number of meetings with prospective lenders or debt investorsmeetings, due diligence sessions, presentations, drafting sessions, lender meetings, “road shows” and similar sessions with rating agencies for the Debt Financing Sources and due diligence sessions and otherwise assisting in marketing efforts related to the Debt Financing including, without limitation, direct contact between senior management and representatives of the Business, on the one hand, and the other prospective financing sources, potential lenders investors and investors for the Debt Financing ratings agencies, in each case on reasonable advance notice;
(including, without limitation, the Financing Sources), on the other hand; (CA) providing to Buyer from time to time information regarding the Business reasonably requested by the financing sources (including, without limitation, the Financing Sources) and assisting with the preparation of appropriate and customary materials for rating agency presentations, offering and syndication documents (including prospectusesmemoranda, private placement memoranda, prospectuses, prospectus supplements, registration statements, lender and investor presentations, bank information memoranda (including a bank information memorandum that does not include material non-public information and the delivery of customary authorization letters with respect to the bank information memoranda executed by a senior officer of the Company authorizing the distribution of information to prospective lenders or investors and containing a representation to the Debt Financing Sources that the public side versions of such documents, if any, do not include material non-public information about the Company or its Subsidiaries or their securities; (B) providing a “10b-5” representation by the Company (consistent with the Debt Commitment Letter) and similar documents), (D) taking reasonable corporate actions, subject to and only effective upon the occurrence of the Closing, reasonably necessary to permit the consummation of marketing documents required in connection with the Debt Financing; (EC) providing customary authorization and/or representation letters (x) furnishing Parent and Merger Sub (and Parent and Merger Sub may then furnish to applicable Debt Financing Sources) with historical financial statements of the Company and its Subsidiaries required to be provided to Parent, Merger Sub or the Debt Financing Sources solely pursuant to paragraph 6(b) of Annex B of the Debt Commitment Letter (as in effect on the date hereof) (the “Required Information”) (in each case, which may be satisfied by including such information in the Company SEC Documents), (y) using reasonable best efforts to cause the applicable independent auditors to reasonably cooperate with Parent in connection with the distribution Debt Financing, including by participating in accounting due diligence sessions upon reasonable advance notice and (z) using reasonable best efforts to obtain the consent of, and facilitate the delivery of, customary “comfort letters” (including as to customary negative assurance) for a Rule 144A private placement of debt securities from, the applicable independent auditors if reasonably necessary or customary for Parent’s use of the bank information memoranda contemplated by the Debt Commitment Letter to prospective lenders and identifying any portion financial statements of the information therein that constitutes material non-public information regarding the Business, Seller Company and its subsidiaries in any marketing or its Subsidiaries; provided that such letters and confirmations expressly state that (x) Seller shall not have any liability of any kind or nature resulting from the use of information offering materials to be used in connection with their cooperation with arranging the Debt Financing Financing;
(iii) participating in meetings with ratings agencies at mutually convenient times on reasonable notice and providing other customary assistance in connection with any ratings agency processes;
(yiv) furnishing, at least three Business Days prior to the recipient of Closing, such letters of authorization shall be entitled to rely only on the representations documentation and warranties contained information as is reasonably requested in the Debt Financing Documents; (F) assisting with the preparation and negotiation of, and facilitating the execution and delivery writing by the appropriate officers of any Purchased Company of, loan agreements, pledge and security documents and other definitive documents and/or certificates contemplated by the Debt Commitment Letter; (G) have a senior financial officer of any Purchased Company execute and deliver to the Financing Sources a solvency certificate in substantially the form attached to the Debt Commitment Letter; (H) cooperating in the replacement or backstop of any outstanding letters of credit issued for the account of the Business or any Purchased Subsidiaries or any joint venture thereof; (I) furnish Buyer and the Financing Sources Parent at least five 10 Business Days prior to the Closing Date with all documentation and other information with respect to the Business and any Purchased Subsidiaries required by the Debt Commitment Letter extent required under applicable “know your customer” and anti-money laundering laws, rules and regulations, including the U.S. USA PATRIOT Act and 31 C.F.R. §1010.230;
(v) (A) providing customary assistance to Parent and Merger Sub in connection with the preparation of any pledge and security documents and other definitive financing documents, including cooperation in connection with the payoff of existing Indebtedness under the Company Credit Agreement, the 2027 Notes Indenture, the 2029 Notes Indenture and the 2031 Notes Indenture, and the release of related Liens, (B) executing and delivering any credit or purchase agreements, indentures, pledge and security documents, guarantees, mortgages, deeds of trusts, other definitive financing documents and schedules thereto or other requested certificates or documents; provided that (x) none of the foregoing agreements, documents or certificates shall be executed and/or delivered, except in connection with the Closing and (y) the effectiveness thereof shall be conditioned upon, or become operative only after or concurrently with, the occurrence of the Closing and (C) facilitating the obtaining of guarantees and pledging of collateral, granting of security interests and other similar matters ancillary to the extent Debt Financing, in each case as may be reasonably requested not less than 10 by Xxxxxx;
(vi) providing customary preliminary “flash” numbers in connection with any Marketing Period occurring between ten (10) and forty (40) days prior following the end of one of the Company’s fiscal quarters and a chief financial officer certificate relating to such customary preliminary “flash” numbers;
(vii) taking certain corporate and other customary actions, subject to the Closing Date; occurrence of the Closing, reasonably requested by Parent or Merger Sub to permit the consummation of the Debt Financing (J) consenting including distributing the proceeds of the Debt Financing, if any, obtained by any Subsidiary of the Company to the use of the logos of the Business so long as such use is not reasonably likely to harm or disparage the Business or its reputation, goodwill, products, services, offerings or intellectual property rights; (K) obtaining customary payoff letters and related documents and instruments relating to the repayment of any exiting third party indebtedness for borrowed money required by the Debt Commitment Letter to be repaid on or coincidental with Closing; and (L) supplementing the information covered by this Section 5.22(a)(ii) on a current basis if such supplement is necessary to ensure that such information does not contain an untrue statement of a material fact or omit to state any material fact necessary to make such information not misleadingSurviving Corporation); and
(iiiviii) taking such actions as are reasonably requested by Buyer or its providing reasonable and customary cooperation to Parent, Merger Sub and the Debt Financing Sources to facilitate the satisfaction (or third party evaluators on a timely basis of all Financing Conditions that are within its control.
(btheir behalf) Seller will use its reasonable best efforts, in obtaining customary appraisals and will cause its Subsidiaries to use their reasonable best efforts, to provide to Buyer and its Financing Sources such information as may be necessary so that the information prepared field exams in connection with the Debt Financing (including upon reasonable prior notice during normal business hours and in providing such available information as is reasonably requested to assist Parent and Merger Sub in their preparation of borrowing base certificates in connection with the marketing thereof) is complete Debt Financing and correct in all material respects and does not contain any untrue statement the determination of a material fact or omit to state a material fact necessary to make the statements contained thereineligible borrowing base assets, in each case, to the light extent customary to obtain any portion of the circumstances under which such statements are made, not misleadingDebt Financing consisting of an asset-based credit facility.
(cb) Seller Notwithstanding the foregoing, nothing in this Section 6.06 shall have require the right Company or any of its Subsidiaries to:
(i) take any action in respect of the Debt Financing to review the extent that such action would cause any condition to Closing set forth in Article 9 to fail to be satisfied by the Outside Date or otherwise result in a breach of this Agreement by the Company;
(ii) take any action in respect of the Debt Financing that would conflict with or violate the Company’s or any if its Subsidiary’s organizational documents or any Applicable Law, or result in the contravention of, or violation of breach of, or default under, any contract to which the Company or any of its subsidiaries is a party;
(iii) take any action to the extent such action would (A) unreasonably interfere with the business or operations of the Company or its Subsidiaries or (B) cause competitive harm to the Company or its Subsidiaries if the transactions contemplated by this Agreement are not consummated;
(iv) execute and comment deliver any letter, agreement, document or certificate in connection with the Debt Financing or take any corporate action that is not contingent on, or that would be effective prior to, the occurrence of the Closing;
(v) pay any commitment fee or other fee or payment to obtain consent or incur any liability with respect to or cause or permit any Lien to be placed on marketing materials related to any of their respective assets in connection with the Debt Financing prior to the dissemination of Closing Date;
(vi) provide access to or disclose information where the Company determines that such materials access or disclosure would reasonably be expected to potential lenders jeopardize the attorney-client privilege or other counterparties to contravene any proposed financing transaction Applicable Law or contract;
(vii) subject the Company or filing with any Governmental Authority); provided, that Seller shall communicate in writing their comments, if any, to Buyer and its counsel within a reasonable period of time under the circumstances and consistent with the time accorded to other participants who were asked to review and comment on such materials. Notwithstanding anything in this Section 5.22 to the contrary, neither Seller nor any of its Affiliates shall be required to (i) pay any commitment fee or similar feeSubsidiaries, (ii) except in the case of the Purchased Companies following the Closing and the execution of authorization and representation letters referred to in Section 5.22(a)(ii), incur any Liability (or cause their respective directors, managers, officers or employees to incur any Liabilityactual or potential personal liability;
(viii) cause the directors and managers of the Company and its Subsidiaries to adopt resolutions (or take other corporate action) approving the agreements, documents and instruments pursuant to which the Debt Financing is obtained unless Parent shall have determined that such directors and managers are to remain as directors and managers of the Company and the applicable Subsidiaries on and after the Closing Date and such resolutions (or take other corporate action) are contingent upon the occurrence of, or only effective as of, the Closing;
(ix) waive or amend any terms of this Agreement or any other contract to which the Company or its Subsidiaries is party; or
(x) take any action that would subject it to actual or potential liability, to bear any cost or expense or to make any other payment or agree to provide any indemnity in connection with respect the Debt Commitment Letter, the definitive documents related to the cooperation described Debt Financing or any information utilized in this Section 5.22, connection therewith (iii) approve or enter into any agreement or binding commitment, (iv) provide (or to have any of their respective Representatives provide) any opinions or reliance letters, in each case, with respect to except following the Closing).
(c) Parent shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiaries in connection with the Financing or the Sale Leaseback Financing, or (v) execute or deliver, or take any corporate or other action to adopt or approve, any documents, agreement, certificate or instrument with respect to the Financing, including any pledge or security documents or closing certificates (other than (x) the execution of authorization and representation letters referred to in Section 5.22(a)(ii) and (y) to the extent necessary for the valid and enforceable execution of definitive Financing documentation, such cooperation as is reasonably necessary to facilitate the adoption of resolutions and consents, as applicable); provided that the foregoing clause (y) shall not prevent any of the officers or directors of any Purchased Company who will remain officers and/or directors of a Purchased Company immediately following the Closing from executing documents, agreements, resolutions, certificates and instruments that do not become effective until the Closing.
(d) Buyer its Subsidiaries contemplated by this Section 6.06 and shall indemnify and hold harmless Seller the Company, its Subsidiaries and its Affiliates, and each of their respective directors, officers, employees, agents and other Representatives from and against any and all Liabilities losses, damages, claims, costs or expenses actually suffered or incurred by any of them of any type in connection with the arrangement of any Debt Financing and any information used in connection therewith, except to the extent such losses, damages, claims, costs or expenses result from the gross negligence, bad faith or willful misconduct of the Company, any of its Subsidiaries or their respective Representatives or Affiliates, and the foregoing obligations shall survive the termination of this Agreement.
(d) All material non-public information provided by the Company or any of its Subsidiaries or any of their Representatives pursuant to this Section 6.06 shall be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Merger Sub shall be permitted to disclose such information to the financing sources, other potential sources of capital, rating agencies and prospective lenders during syndication of the Debt Financing or the Sale Leaseback Financing any permitted replacement, amended, modified or any assistance or activities provided in connection therewith (other than historical information relating alternative financing subject to the Business provided by Seller or its Affiliates in writing for the purpose potential sources of arranging the Debt Financing); providedcapital, however, that the foregoing shall not apply in Seller’s or its Affiliates’ or other Representatives’ willful misconduct or gross negligence. Buyer shall promptly reimburse Seller ratings agencies and its Affiliates for all documented out-of-pocket third party costs incurred by Seller prospective lenders and its Affiliates in connection investors entering into customary confidentiality undertakings with respect to such cooperation.
information (e) Notwithstanding anything to the contrary herein, it is understood including through a notice and agreed that the condition set forth in Section 8.02(a), as applied to Seller’s obligations under this Section 5.22, shall be deemed to be satisfied unless the Financing or the Sale Leaseback Financing has not been obtained as a result of Sellers’s breach of its obligations under this Section 5.22 to the extent such breach impairs or adversely affects the Financing or the Sale Leaseback Financing, including the execution, timing and pricing or cost thereof, undertaking in a material manner. Buyer acknowledges and agrees that obtaining the Financing and the Sale Leaseback Financing are not conditions to Closing. None of Seller or any of its Affiliates shall have any obligations under this Section 5.22 following the consummation of the transactions contemplated herebyform customarily used in confidential information memoranda for senior credit facilities).
Appears in 1 contract
Debt Financing Cooperation.
(a) Seller Prior to the Closing, ITW shall, and shall cause its Affiliates (including the Company and the Company Subsidiaries) to, and shall use all its reasonable best efforts to cause its Affiliates and Representatives their representatives to, provide to Investor such cooperation reasonably requested by Investor to assist Investor in causing the conditions in the Debt Financing Commitment to be satisfied and such cooperation as is otherwise necessary or reasonably requested by Investor or the Financing Sources in connection with the arrangement Company obtaining the Debt Financing in accordance with its terms, including cooperation that consists of:
(1) participating in a customary and reasonable number of meetings, presentations, road shows, due diligence sessions, drafting sessions and sessions with rating agencies;
(2) providing authorization letters to Financing Sources authorizing the distribution of information with respect to the Business to prospective lenders or investors (including a customary representation that information with respect to the Business provided to prospective lenders or investors (i) is publicly available, (ii) is not material with respect to the Company, ITW or their respective securities for purposes of United States federal and state securities laws or (iii) constitutes information of a type that would be publicly available if the Company were a public reporting company), it being understood that any information with respect to the Business provided by ITW pursuant to Section 4.12(a)(4) may be included in the Offering Materials with respect to which such authorization letters are being delivered;
(3) executing and delivering any securities purchase agreement, credit agreement, indentures, notes, guarantees, pledge and security documents, supplemental indentures, currency or interest hedging arrangements, other definitive financing documents, a certificate of an officer of the Company reasonably satisfactory to the Financing Sources with respect to solvency of the Borrower and its Subsidiaries (after giving effect to the Reorganization) on a consolidated basis and other certificates or documents and back-up therefor and for legal opinions as may be reasonably requested by Investor or the Financing Sources and otherwise reasonably facilitating the pledging of collateral; provided that none of the Company or the Company Subsidiaries or any of their respective officers or employees shall be required to or execute any document in connection with this Section 4.12(a)(3), which document would be effective at any time before the time that will be immediately prior to the Closing, other than the execution by the Company and the Company Subsidiaries of any note purchase agreement being entered into at the time of "pricing" of any high yield bonds issued in lieu of all or a portion of the Debt Financing as is reasonably requested by Buyer; provided that Seller Financing, and its Affiliates shall any corporate authorizations in no event be required to provide such assistance that shall unreasonably interfere with their respective business operations. Such assistance shall include, without limitation, the following, each of which shall be at Buyer’s request with reasonably practicable prior notice and at Buyer’s sole cost and expense:connection therewith;
(i4) (A) furnishing Buyer Investor and its Financing Sources as promptly as practicable with (x) audited consolidated balance sheets of the Business for the two most recent completed fiscal years ended at least 90 days prior to the Closing Date, statements of operations, group equity, other comprehensive income and cash flows of the Business for the three most recently completed fiscal years ended at least 90 days prior to the Closing Date, together with all related notes and schedules thereto, accompanied by the reports thereon of the independent auditors and (y) unaudited combined balance sheets and related statements of income, group equity, other comprehensive income and cash flows of the Business prepared in accordance with GAAP for each fiscal quarter ended after the close of its most recent fiscal year and at least 45 days prior to the Closing Date and for the comparable quarter of the prior fiscal year, together with all related notes and schedules thereto, in each case of clauses (x) and (y) prepared in accordance with GAAP and in compliance with Regulation S-X promulgated under the Securities Act, (B) furnishing Investor and its Financing Sources as promptly as practicable with all financial statements and pro forma financial information referred (including for the most recent four fiscal quarter period ended at least 45 days prior to the Closing Date) prepared in the Commitment Letters (as in effect as of the date hereof) and (y) such other pertinent and customary accordance with GAAP, financial data, audit reports and other information customarily delivered in connection with Buyerregarding the Business of the type that would be required by Regulation S-X and Regulation S-K promulgated under the Securities Act for a registered public offering of non-convertible debt securities of the Company (including for the Company’s preparation of a customary bank bookpro forma financial statements), confidential information memorandum, lender presentations, business projections and similar documents for financings that are similar to the Debt Financing extent the same is of the type and form customarily included in an offering memorandum for private placements of non-convertible high-yield bonds under Rule 144A promulgated under the Securities Act, or otherwise necessary to receive from the Company’s independent accountants (and any other marketing materials customarily used in connection with the syndication of financings that are similar accountant to the Debt Financing reasonably requested extent financial statements audited or reviewed by Buyer such accountants are or would be included in such offering memorandum) customary “comfort” (including “negative assurance” comfort), together with respect drafts of customary comfort letters that such independent accountants are prepared to acquired entities) deliver upon “pricing” of any high-yield bonds being issued in order to market, syndicate and consummate the Debt Financing, and promptly provide Parent with any supplements to such information requested by Buyer pursuant to this clause (i);
(ii) participation by the senior management team lieu of the Business in the marketing activities undertaken in connection with the marketing all or a portion of the Debt Financing, including with respect to the financial information to be included in such offering memorandum and which, with respect to any interim financial statements, shall have been reviewed by the Company’s independent accountants as provided in AU 722; (AC) assisting Investor in the preparation of a customary rating agency presentations, lender presentations and high yield road show presentations or memoranda, customary bank bookoffering memoranda, confidential information memorandumsyndication memoranda, lender presentationsprivate offering memoranda, and other marketing materials or memoranda, including business and financial projections and similar documents (B) a reasonable number of meetings reasonably requested by Investor, in each case, required in connection with prospective lenders or debt investors, sessions with rating agencies for the Debt Financing (the “Offering Materials”), and due diligence sessions and otherwise assisting (D) consents of accountants for use of their unqualified audit reports in marketing efforts related any materials relating to the Debt Financing including, without limitation, direct contact between senior management and representatives or any high-yield bonds being issued in lieu of the Business, on the one hand, and the financing sources, potential lenders and investors for all or a portion of the Debt Financing (includingthe authorization letter referred to in clause (2) and all such information in this clause (4), without limitationtogether with any replacements or restatements thereof, and supplements thereto, if any such information would go stale or otherwise be unusable for such purposes, the Financing Sources“Required Information”);
(5) using reasonable best efforts to cooperate with Investor and Investor’s efforts to obtain customary and reasonable corporate and facilities ratings, on the other hand; consents, landlord waivers and estoppels, non disturbance agreements, non-invasive environmental assessments, legal opinions, surveys and title insurance (Cincluding providing reasonable access to Investor and its representatives to all Owned Real Property and Leased Real Property) providing to Buyer from time to time information regarding the Business as reasonably requested by Investor;
(6) taking all actions reasonably necessary to (x) permit Financing Sources to evaluate the financing sources Company’s and the Company Subsidiaries’ current assets, properties, rights, inventory, cash management and accounting systems, policies and procedures relating thereto for the purpose of establishing collateral arrangements to the extent customary and reasonable and (including, without limitation, the Financing Sourcesy) establish bank and assisting other accounts and blocked account agreements and lock box arrangements in connection with the preparation of appropriate foregoing, provided that such agreements and customary materials for rating agency presentations, offering and syndication documents (including prospectuses, private placement memoranda, lender and investor presentations, bank information memoranda and similar documents), (D) taking reasonable corporate actions, subject to and arrangements will only be effective upon the occurrence Closing;
(7) granting Financing Sources, on reasonable terms and upon reasonable request, at reasonable times and on reasonable notice, access to the Company’s and the Company Subsidiaries’ respective properties, rights, assets and cash management and accounting systems (including cooperating in and facilitating the completion of the Closingfield examinations, collateral audits, asset appraisals, surveys, Phase I environmental site assessments and engineering/property condition reports);
(8) taking all corporate actions reasonably necessary requested by a Financing Source to permit the consummation of the Debt Financing; ;
(E9) providing obtaining customary authorization and/or representation letters in connection with the distribution payoff letters, Encumbrance terminations and instruments of the bank information memoranda contemplated by the Debt Commitment Letter discharge to prospective lenders and identifying any portion of the information therein that constitutes material non-public information regarding the Business, Seller or its Subsidiaries; provided that such letters and confirmations expressly state that (x) Seller shall not have any liability of any kind or nature resulting from the use of information in connection with their cooperation with arranging the Debt Financing and (y) the recipient of such letters of authorization shall be entitled delivered at Closing to rely only on the representations and warranties contained in the Debt Financing Documents; (F) assisting with the preparation and negotiation of, and facilitating the execution and delivery by the appropriate officers of any Purchased Company of, loan agreements, pledge and security documents and other definitive documents and/or certificates contemplated by the Debt Commitment Letter; (G) have a senior financial officer of any Purchased Company execute and deliver to the Financing Sources a solvency certificate in substantially the form attached to the Debt Commitment Letter; (H) cooperating in the replacement or backstop of any outstanding letters of credit issued allow for the account of the Business or any Purchased Subsidiaries or any joint venture thereof; (I) furnish Buyer payoff, discharge and the Financing Sources at least five Business Days prior to termination in full on the Closing Date of all Indebtedness (other than that comprising the Debt Financing); and
(10) furnishing Investor and its Financing Sources promptly with all documentation and other information with respect to the Business which any lender providing or arranging Debt Financing has reasonably requested and any Purchased Subsidiaries that such lender has determined is required by the regulatory authorities in connection with such Debt Commitment Letter required Financing under applicable “know your customer” and anti-money laundering laws, rules and regulations, including the U.S. PATRIOT Act Act; provided that (x) nothing in this Section 4.12(a) shall require such cooperation to the extent requested not less than 10 days it would require ITW to waive or amend any terms of this Agreement or agree to pay any fees or reimburse any expenses prior to the Closing Date; for which it has not received prior reimbursement by or on behalf of Investor (J) consenting except to the use of extent Investor has provided the logos of the Business so long as indemnities set forth in Section 4.12(c)) and (y) nothing herein shall require such use is not reasonably likely to harm or disparage the Business cooperation from ITW or its reputation, goodwill, products, services, offerings or intellectual property rights; (K) obtaining customary payoff letters and related documents and instruments relating Affiliates to the repayment extent it would unreasonably interfere with the ongoing operations of any exiting third party indebtedness ITW or its Affiliates.
(b) Investor shall promptly, upon request by ITW, reimburse ITW for borrowed money required all of its and its Affiliates’ documented reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred by ITW and its Affiliates in connection with the Debt Commitment Letter to be repaid on or coincidental with Closing; cooperation of ITW and (L) supplementing the information covered its Affiliates contemplated by this Section 5.22(a)(ii4.12.
(c) ITW, its Affiliates and their respective officers, advisors and representatives shall be indemnified and held harmless by Investor for and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred by them in connection with the arrangement of the Debt Financing and/or the provision of information utilized in connection therewith (other than information provided in writing specifically for such use by or on behalf of ITW or any of its Affiliates) to the fullest extent permitted by applicable Law, other than to the extent any of the foregoing arises from (i) the willful misconduct, gross negligence or material breach of the obligations of any of ITW, its Affiliates (including the Company and the Company Subsidiaries) or its or their respective directors, officers, employees, attorneys, accountants or other advisors or representatives or (ii) any information provided by or on behalf of ITW or any of its Affiliates (including the Company and the Company Subsidiaries) in connection with the Debt Financing to the extent such information is the subject of any of the representations or warranties set forth in ARTICLE II and where such information would constitute a breach of any such representation or warranty as of the times at which the accuracy of such representation or warranty is tested pursuant to this Agreement.
(d) ITW shall or shall cause the Company to supplement the Required Information on a reasonably current basis if to the extent that any such supplement is necessary Required Information, to ensure that the Knowledge of ITW, when taken as a whole and in light of the circumstances under which such information does not contain an untrue statement statements were made, contains any material misstatement of a material fact or omit omits to state any material fact necessary to make such information not materially misleading; and
(iii) taking such actions as are reasonably requested by Buyer or its Financing Sources to facilitate the satisfaction on a timely basis of all Financing Conditions that are within its control.
(b) Seller will use its reasonable best efforts, and will cause its Subsidiaries to use their reasonable best efforts, to provide to Buyer and its Financing Sources such information as may be necessary so that the information prepared in connection with the Debt Financing (including the marketing thereof) is complete and correct in all material respects and does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein, in the light of the circumstances under which such statements are made, not misleading.
(c) Seller shall have the right to review and comment on marketing materials related to the Debt Financing prior to the dissemination of such materials to potential lenders or other counterparties to any proposed financing transaction (or filing with any Governmental Authority); provided, that Seller shall communicate in writing their comments, if any, to Buyer and its counsel within a reasonable period of time under the circumstances and consistent with the time accorded to other participants who were asked to review and comment on such materials. Notwithstanding anything in this Section 5.22 to the contrary, neither Seller nor any of its Affiliates shall be required to (i) pay any commitment fee or similar fee, (ii) except in the case of the Purchased Companies following the Closing and the execution of authorization and representation letters referred to in Section 5.22(a)(ii), incur any Liability (or cause their respective directors, officers or employees to incur any Liability) with respect to the cooperation described in this Section 5.22, (iii) approve or enter into any agreement or binding commitment, (iv) provide (or to have any of their respective Representatives provide) any opinions or reliance letters, in each case, with respect to or in connection with the Financing or the Sale Leaseback Financing, or (v) execute or deliver, or take any corporate or other action to adopt or approve, any documents, agreement, certificate or instrument with respect to the Financing, including any pledge or security documents or closing certificates (other than (x) the execution of authorization and representation letters referred to in Section 5.22(a)(ii) and (y) to the extent necessary for the valid and enforceable execution of definitive Financing documentation, such cooperation as is reasonably necessary to facilitate the adoption of resolutions and consents, as applicable); provided that the foregoing clause (y) shall not prevent any of the officers or directors of any Purchased Company who will remain officers and/or directors of a Purchased Company immediately following the Closing from executing documents, agreements, resolutions, certificates and instruments that do not become effective until the Closing.
(d) Buyer shall indemnify and hold harmless Seller and its Affiliates, and each of their respective directors, officers, employees, agents and other Representatives from and against any and all Liabilities suffered or incurred in connection with the arrangement of the Debt Financing or the Sale Leaseback Financing or any assistance or activities provided in connection therewith (other than historical information relating to the Business provided by Seller or its Affiliates in writing for the purpose of arranging the Debt Financing); provided, however, that the foregoing shall not apply in Seller’s or its Affiliates’ or other Representatives’ willful misconduct or gross negligence. Buyer shall promptly reimburse Seller and its Affiliates for all documented out-of-pocket third party costs incurred by Seller and its Affiliates in connection with such cooperation.
(e) Notwithstanding anything to With the contrary herein, it is understood and agreed that the condition set forth in Section 8.02(a), as applied to Seller’s obligations under this Section 5.22, shall be deemed prior written consent of ITW (not to be satisfied unless unreasonably withheld or delayed) in connection with any proposed use, the Financing or Company’s and the Sale Leaseback Financing has not been obtained as a result of Sellers’s breach of its obligations under this Section 5.22 to Company Subsidiaries’ logos (other than any logo incorporating the extent “Illinois Tool Works” name) may be used in connection with the Financing; provided that such breach impairs or adversely affects the Financing or the Sale Leaseback Financing, including the execution, timing and pricing or cost thereof, logos are used solely in a material manner. Buyer acknowledges and agrees manner that obtaining is not intended to or reasonably likely to harm or disparage the Financing and the Sale Leaseback Financing are not conditions to Closing. None of Seller Company or any of its Affiliates shall have any obligations under this Section 5.22 following the consummation Company Subsidiaries or the reputation or goodwill of the transactions contemplated herebyCompany or any of the Company Subsidiaries.
Appears in 1 contract
Samples: Investment Agreement
Debt Financing Cooperation. (a) Seller Prior to the Closing, ITW shall, and shall cause its Affiliates (including the Company and the Company Subsidiaries) to, and shall use all its reasonable best efforts to cause its Affiliates and Representatives their representatives to, provide to Investor such cooperation reasonably requested by Investor to assist Investor in causing the conditions in the Debt Financing Commitment to be satisfied and such cooperation as is otherwise necessary or reasonably requested by Investor or the Financing Sources in connection with the arrangement Company obtaining the Debt Financing in accordance with its terms, including cooperation that consists of:
(1) participating in a customary and reasonable number of meetings, presentations, road shows, due diligence sessions, drafting sessions and sessions with rating agencies;
(2) providing authorization letters to Financing Sources authorizing the distribution of information with respect to the Business to prospective lenders or investors (including a customary representation that information with respect to the Business provided to prospective lenders or investors (i) is publicly available, (ii) is not material with respect to the Company, ITW or their respective securities for purposes of United States federal and state securities laws or (iii) constitutes information of a type that would be publicly available if the Company were a public reporting company), it being understood that any information with respect to the Business provided by ITW pursuant to Section 4.12(a)(4) may be included in the Offering Materials with respect to which such authorization letters are being delivered;
(3) executing and delivering any securities purchase agreement, credit agreement, indentures, notes, guarantees, pledge and security documents, supplemental indentures, currency or interest hedging arrangements, other definitive financing documents, a certificate of an officer of the Company reasonably satisfactory to the Financing Sources with respect to solvency of the Borrower and its Subsidiaries (after giving effect to the Reorganization) on a consolidated basis and other certificates or documents and back-up therefor and for legal opinions as may be reasonably requested by Investor or the Financing Sources and otherwise reasonably facilitating the pledging of collateral; provided that none of the Company or the Company Subsidiaries or any of their respective officers or employees shall be required to or execute any document in connection with this Section 4.12(a)(3), which document would be effective at any time before the time that will be immediately prior to the Closing, other than the execution by the Company and the Company Subsidiaries of any note purchase agreement being entered into at the time of "pricing" of any high yield bonds issued in lieu of all or a portion of the Debt Financing as is reasonably requested by Buyer; provided that Seller Financing, and its Affiliates shall any corporate authorizations in no event be required to provide such assistance that shall unreasonably interfere with their respective business operations. Such assistance shall include, without limitation, the following, each of which shall be at Buyer’s request with reasonably practicable prior notice and at Buyer’s sole cost and expense:connection therewith;
(i4) (A) furnishing Buyer Investor and its Financing Sources as promptly as practicable with (x) audited consolidated balance sheets of the Business for the two most recent completed fiscal years ended at least 90 days prior to the Closing Date, statements of operations, group equity, other comprehensive income and cash flows of the Business for the three most recently completed fiscal years ended at least 90 days prior to the Closing Date, together with all related notes and schedules thereto, accompanied by the reports thereon of the independent auditors and (y) unaudited combined balance sheets and related statements of income, group equity, other comprehensive income and cash flows of the Business prepared in accordance with GAAP for each fiscal quarter ended after the close of its most recent fiscal year and at least 45 days prior to the Closing Date and for the comparable quarter of the prior fiscal year, together with all related notes and schedules thereto, in each case of clauses (x) and (y) prepared in accordance with GAAP and in compliance with Regulation S-X promulgated under the Securities Act, (B) furnishing Investor and its Financing Sources as promptly as practicable with all financial statements and pro forma financial information referred (including for the most recent four fiscal quarter period ended at least 45 days prior to the Closing Date) prepared in the Commitment Letters (as in effect as of the date hereof) and (y) such other pertinent and customary accordance with GAAP, financial data, audit reports and other information customarily delivered in connection with Buyerregarding the Business of the type that would be required by Regulation S-X and Regulation S-K promulgated under the Securities Act for a registered public offering of non-convertible debt securities of the Company (including for the Company’s preparation of a customary bank bookpro forma financial statements), confidential information memorandum, lender presentations, business projections and similar documents for financings that are similar to the Debt Financing extent the same is of the type and form customarily included in an offering memorandum for private placements of non-convertible high-yield bonds under Rule 144A promulgated under the Securities Act, or otherwise necessary to receive from the Company’s independent accountants (and any other marketing materials customarily used in connection with the syndication of financings that are similar accountant to the Debt Financing reasonably requested extent financial statements audited or reviewed by Buyer such accountants are or would be included in such offering memorandum) customary “comfort” (including “negative assurance” comfort), together with respect drafts of customary comfort letters that such independent accountants are prepared to acquired entities) deliver upon “pricing” of any high-yield bonds being issued in order to market, syndicate and consummate the Debt Financing, and promptly provide Parent with any supplements to such information requested by Buyer pursuant to this clause (i);
(ii) participation by the senior management team lieu of the Business in the marketing activities undertaken in connection with the marketing all or a portion of the Debt Financing, including with respect to the financial information to be included in such offering memorandum and which, with respect to any interim financial statements, shall have been reviewed by the Company’s independent accountants as provided in AU 722; (AC) assisting Investor in the preparation of a customary rating agency presentations, lender presentations and high yield road show presentations or memoranda, customary bank bookoffering memoranda, confidential information memorandumsyndication memoranda, lender presentationsprivate offering memoranda, and other marketing materials or memoranda, including business and financial projections and similar documents (B) a reasonable number of meetings reasonably requested by Investor, in each case, required in connection with prospective lenders or debt investors, sessions with rating agencies for the Debt Financing (the “Offering Materials”), and due diligence sessions and otherwise assisting (D) consents of accountants for use of their unqualified audit reports in marketing efforts related any materials relating to the Debt Financing including, without limitation, direct contact between senior management and representatives or any high-yield bonds being issued in lieu of the Business, on the one hand, and the financing sources, potential lenders and investors for all or a portion of the Debt Financing (includingthe authorization letter referred to in clause (2) and all such information in this clause (4), without limitationtogether with any replacements or restatements thereof, and supplements thereto, if any such information would go stale or otherwise be unusable for such purposes, the Financing Sources“Required Information”);
(5) using reasonable best efforts to cooperate with Investor and Investor’s efforts to obtain customary and reasonable corporate and facilities ratings, on the other hand; consents, landlord waivers and estoppels, non disturbance agreements, non-invasive environmental assessments, legal opinions, surveys and title insurance (Cincluding providing reasonable access to Investor and its representatives to all Owned Real Property and Leased Real Property) providing to Buyer from time to time information regarding the Business as reasonably requested by Investor;
(6) taking all actions reasonably necessary to (x) permit Financing Sources to evaluate the financing sources Company’s and the Company Subsidiaries’ current assets, properties, rights, inventory, cash management and accounting systems, policies and procedures relating thereto for the purpose of establishing collateral arrangements to the extent customary and reasonable and (including, without limitation, the Financing Sourcesy) establish bank and assisting other accounts and blocked account agreements and lock box arrangements in connection with the preparation of appropriate foregoing, provided that such agreements and customary materials for rating agency presentations, offering and syndication documents (including prospectuses, private placement memoranda, lender and investor presentations, bank information memoranda and similar documents), (D) taking reasonable corporate actions, subject to and arrangements will only be effective upon the occurrence Closing;
(7) granting Financing Sources, on reasonable terms and upon reasonable request, at reasonable times and on reasonable notice, access to the Company’s and the Company Subsidiaries’ respective properties, rights, assets and cash management and accounting systems (including cooperating in and facilitating the completion of the Closingfield examinations, collateral audits, asset appraisals, surveys, Phase I environmental site assessments and engineering/property condition reports);
(8) taking all corporate actions reasonably necessary requested by a Financing Source to permit the consummation of the Debt Financing; ;
(E9) providing obtaining customary authorization and/or representation letters in connection with the distribution payoff letters, Encumbrance terminations and instruments of the bank information memoranda contemplated by the Debt Commitment Letter discharge to prospective lenders and identifying any portion of the information therein that constitutes material non-public information regarding the Business, Seller or its Subsidiaries; provided that such letters and confirmations expressly state that (x) Seller shall not have any liability of any kind or nature resulting from the use of information in connection with their cooperation with arranging the Debt Financing and (y) the recipient of such letters of authorization shall be entitled delivered at Closing to rely only on the representations and warranties contained in the Debt Financing Documents; (F) assisting with the preparation and negotiation of, and facilitating the execution and delivery by the appropriate officers of any Purchased Company of, loan agreements, pledge and security documents and other definitive documents and/or certificates contemplated by the Debt Commitment Letter; (G) have a senior financial officer of any Purchased Company execute and deliver to the Financing Sources a solvency certificate in substantially the form attached to the Debt Commitment Letter; (H) cooperating in the replacement or backstop of any outstanding letters of credit issued allow for the account of the Business or any Purchased Subsidiaries or any joint venture thereof; (I) furnish Buyer payoff, discharge and the Financing Sources at least five Business Days prior to termination in full on the Closing Date of all Indebtedness (other than that comprising the Debt Financing); and
(10) furnishing Investor and its Financing Sources promptly with all documentation and other information with respect to the Business which any lender providing or arranging Debt Financing has reasonably requested and any Purchased Subsidiaries that such lender has determined is required by the regulatory authorities in connection with such Debt Commitment Letter required Financing under applicable “know your customer” and anti-money laundering laws, rules and regulations, including the U.S. PATRIOT Act Act; provided that (x) nothing in this Section 4.12(a) shall require such cooperation to the extent requested not less than 10 days it would require ITW to waive or amend any terms of this Agreement or agree to pay any fees or reimburse any expenses prior to the Closing Date; for which it has not received prior reimbursement by or on behalf of Investor (J) consenting except to the use of extent Investor has provided the logos of the Business so long as indemnities set forth in Section 4.12(c)) and (y) nothing herein shall require such use is not reasonably likely to harm or disparage the Business cooperation from ITW or its reputation, goodwill, products, services, offerings or intellectual property rights; (K) obtaining customary payoff letters and related documents and instruments relating Affiliates to the repayment extent it would unreasonably interfere with the ongoing operations of any exiting third party indebtedness ITW or its Affiliates.
(b) Investor shall promptly, upon request by ITW, reimburse ITW for borrowed money required all of its and its Affiliates’ documented reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred by ITW and its Affiliates in connection with the Debt Commitment Letter to be repaid on or coincidental with Closing; cooperation of ITW and (L) supplementing the information covered its Affiliates contemplated by this Section 5.22(a)(ii4.12.
(c) ITW, its Affiliates and their respective officers, advisors and representatives shall be indemnified and held harmless by Investor for and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred by them in connection with the arrangement of the Debt Financing and/or the provision of information utilized in connection therewith (other than information provided in writing specifically for such use by or on behalf of ITW or any of its Affiliates) to the fullest extent permitted by applicable Law, other than to the extent any of the foregoing arises from (i) the willful misconduct, gross negligence or material breach of the obligations of any of ITW, its Affiliates (including the Company and the Company Subsidiaries) or its or their respective directors, officers, employees, attorneys, accountants or other advisors or representatives or (ii) any information provided by or on behalf of ITW or any of its Affiliates (including the Company and the Company Subsidiaries) in connection with the Debt Financing to the extent such information is the subject of any of the representations or warranties set forth in ARTICLE II and where such information would constitute a breach of any such representation or warranty as of the times at which the accuracy of such representation or warranty is tested pursuant to this Agreement.
(d) ITW shall or shall cause the Company to supplement the Required Information on a reasonably current basis if to the extent that any such supplement is necessary Required Information, to ensure that the Knowledge of ITW, when taken as a whole and in light of the circumstances under which such information does not contain an untrue statement statements were made, contains any material misstatement of a material fact or omit omits to state any material fact necessary to make such information not materially misleading; and
(iii) taking such actions as are reasonably requested by Buyer or its Financing Sources to facilitate the satisfaction on a timely basis of all Financing Conditions that are within its control.
(b) Seller will use its reasonable best efforts, and will cause its Subsidiaries to use their reasonable best efforts, to provide to Buyer and its Financing Sources such information as may be necessary so that the information prepared in connection with the Debt Financing (including the marketing thereof) is complete and correct in all material respects and does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein, in the light of the circumstances under which such statements are made, not misleading.
(c) Seller shall have the right to review and comment on marketing materials related to the Debt Financing prior to the dissemination of such materials to potential lenders or other counterparties to any proposed financing transaction (or filing with any Governmental Authority); provided, that Seller shall communicate in writing their comments, if any, to Buyer and its counsel within a reasonable period of time under the circumstances and consistent with the time accorded to other participants who were asked to review and comment on such materials. Notwithstanding anything in this Section 5.22 to the contrary, neither Seller nor any of its Affiliates shall be required to (i) pay any commitment fee or similar fee, (ii) except in the case of the Purchased Companies following the Closing and the execution of authorization and representation letters referred to in Section 5.22(a)(ii), incur any Liability (or cause their respective directors, officers or employees to incur any Liability) with respect to the cooperation described in this Section 5.22, (iii) approve or enter into any agreement or binding commitment, (iv) provide (or to have any of their respective Representatives provide) any opinions or reliance letters, in each case, with respect to or in connection with the Financing or the Sale Leaseback Financing, or (v) execute or deliver, or take any corporate or other action to adopt or approve, any documents, agreement, certificate or instrument with respect to the Financing, including any pledge or security documents or closing certificates (other than (x) the execution of authorization and representation letters referred to in Section 5.22(a)(ii) and (y) to the extent necessary for the valid and enforceable execution of definitive Financing documentation, such cooperation as is reasonably necessary to facilitate the adoption of resolutions and consents, as applicable); provided that the foregoing clause (y) shall not prevent any of the officers or directors of any Purchased Company who will remain officers and/or directors of a Purchased Company immediately following the Closing from executing documents, agreements, resolutions, certificates and instruments that do not become effective until the Closing.
(d) Buyer shall indemnify and hold harmless Seller and its Affiliates, and each of their respective directors, officers, employees, agents and other Representatives from and against any and all Liabilities suffered or incurred in connection with the arrangement of the Debt Financing or the Sale Leaseback Financing or any assistance or activities provided in connection therewith (other than historical information relating to the Business provided by Seller or its Affiliates in writing for the purpose of arranging the Debt Financing); provided, however, that the foregoing shall not apply in Seller’s or its Affiliates’ or other Representatives’ willful misconduct or gross negligence. Buyer shall promptly reimburse Seller and its Affiliates for all documented out-of-pocket third party costs incurred by Seller and its Affiliates in connection with such cooperation.
(e) Notwithstanding anything to With the contrary herein, it is understood and agreed that the condition set forth in Section 8.02(a), as applied to Seller’s obligations under this Section 5.22, shall be deemed prior written consent of ITW (not to be satisfied unless unreasonably withheld or delayed) in connection with any proposed use, the Financing or Company’s and the Sale Leaseback Financing has not been obtained as a result of Sellers’s breach of its obligations under this Section 5.22 to Company Subsidiaries’ logos (other than any logo incorporating the extent “Illinois Tool Works” name) may be used in connection with the Financing; provided that such breach impairs or adversely affects the Financing or the Sale Leaseback Financing, including the execution, timing and pricing or cost thereof, logos are used solely in a material manner. Buyer acknowledges and agrees manner that obtaining is not intended to or reasonably likely to harm or disparage the Financing and the Sale Leaseback Financing are not conditions to Closing. None of Seller Company or any of its Affiliates shall have any obligations under this Section 5.22 following the consummation Company Subsidiaries or the reputation or goodwill of the transactions contemplated herebyCompany or any of the Company Subsidiaries.
Appears in 1 contract
Debt Financing Cooperation. (a) Seller shallThe Company shall use reasonable best efforts, and shall cause its Subsidiaries to, and shall use all its reasonable best efforts to cause its Affiliates their respective officers, employees, advisors and other Representatives toto use their reasonable best efforts, to provide such cooperation in connection with the arrangement of, and satisfaction of the conditions to, the Debt Financing as is reasonably requested by BuyerParent; provided provided, that Seller and neither the Company nor any of its Affiliates Subsidiaries shall in no any event be required to provide such assistance that shall unreasonably interfere with their respective its business operations. Such assistance cooperation shall include, without limitation, include using reasonable best efforts to do the following, each of which shall be at BuyerParent’s written request with reasonably practicable reasonable prior notice and at BuyerParent’s sole cost and expense:
(i) furnishing Buyer and its Financing Sources as promptly as practicable with (x) the financial statements and pro forma financial information referred to in the Commitment Letters (as in effect as of the date hereof) and (y) such other pertinent and customary financial and other information customarily delivered in connection with Buyer’s preparation of a customary bank book, confidential information memorandum, lender presentations, business projections and similar documents for financings that are similar to the Debt Financing and other marketing materials customarily used in connection with the syndication of financings that are similar to the Debt Financing reasonably requested by Buyer (including with respect to acquired entities) in order to market, syndicate and consummate the Debt Financing, and promptly provide Parent with any supplements to such information requested by Buyer pursuant to this clause (i);
(ii) participation by the senior management team (with appropriate seniority and expertise) of the Business Company and its Subsidiaries in the marketing activities undertaken in connection with the marketing of the Debt Financing, including (A) assisting assistance in preparation of customary marketing material and due diligence sessions related thereto, (B) preparation for and participation in a reasonable number of meetings, presentations, due diligence sessions, drafting sessions, road shows, conference calls, lender meetings and other customary syndication activities with prospective lenders and debt investors, in each case at reasonable times and upon reasonable notice, and (C) delivery of customary authorization and representation letters (including customary representations (solely with respect to the Company and its Subsidiaries) with respect to the absence of material non-public information in the public-side version of documents distributed to potential lenders and the absence of material misstatement(s);
(ii) reasonable assistance with obtaining ratings from one or more rating agencies (including corporate ratings and ratings for the Debt Financing), including participation by senior management of the Company and its Subsidiaries in, and assistance with, the preparation of rating agency presentations and meetings with rating agencies;
(iii) (A) furnishing due diligence materials, financial and other pertinent information relating to the Company and its Subsidiaries and its and their respective businesses (including information to be used in the preparation of a customary rating agency presentations, an information package, bank book, confidential information memorandummemoranda, lender presentationsoffering documents, business prospectus, offering memoranda and similar customary documents regarding the business, operations, financial projections and similar prospects of the Company and its Subsidiaries reasonably required in connection with the Debt Financing) to Parent, Merger Sub and the Financing Sources to the extent reasonably requested by Parent to assist in the preparation of customary prospectus, offering or information documents to be used in connection with the Debt Financing (including in connection with the syndication of a credit facility and/or an offering of securities in reliance on Rule 144A of the Securities Act or other private placement) and (B) reviewing and commenting on Parent’s draft of a reasonable number of meetings with prospective lenders or debt investors, sessions with rating agencies for the Debt Financing and due diligence sessions and otherwise assisting in marketing efforts related business description (solely as it relates to the Debt Company and its Subsidiaries) and “Management’s Discussion and Analysis” of the Company financial statements to be included in offering documents;
(iv) providing as promptly as reasonably practicable (and in any event, no less than four (4) Business Days prior to the Closing Date) such other documentation and other information reasonably requested by the Financing Sources at least nine (9) Business Days prior to the Closing Date under applicable “know-your-customer” and anti-money laundering rules and regulations (including the USA PATRIOT Act), including, without limitation, direct contact between senior management if applicable, a certification regarding beneficial ownership as required by 31 C.F.R. § 1010.230 relating to the Company or any of its Subsidiaries;
(v) obtaining and/or assisting in obtaining Payoff Letters;
(vi) cooperating to facilitate the pledging of, granting of security interests in and representatives obtaining perfection of any Liens on, collateral (including using reasonable best efforts to deliver original copies of all certificated securities and instruments (with transfer powers executed in blank) required to be provided as collateral under the Business, on the one handDebt Commitment Letter), and the financing sources, potential lenders cooperate with any collateral appraisals and investors for the Debt Financing (including, without limitation, field examinations as may be reasonably requested by Parent and the Financing Sources), on which shall take place upon reasonable notice during normal business hours;
(vii) executing and delivering financing agreements (including pledge and security agreements) and related documents (including certificates) as may be reasonably requested by Parent or the Financing Sources;
(viii) establishing bank and other hand; accounts and blocked account agreements and lock-box arrangements to the extent necessary in connection with the Debt Financing;
(Cix) providing to Buyer from time to time furnishing Parent and the Financing Sources as promptly as reasonably practicable with (A) the Financing Information and other information regarding the Business reasonably requested Company and its Subsidiaries customarily included in marketing materials or offering documents for financings similar to the financings contemplated by the financing sources Debt Commitment Letter (including, without limitation, the Financing Sourcesincluding Rule 144A offerings of non-convertible debt securities) and assisting with (B) customary “flash” or “recent development” revenue information (which may be provided in a reasonable range or estimate and may be provided on a non-GAAP basis) for any fiscal quarter or year ending after the preparation of appropriate date hereof and customary materials for rating agency presentations, offering and syndication documents prior to the Closing;
(including prospectuses, private placement memoranda, lender and investor presentations, bank information memoranda and similar documents), (Dx) taking reasonable all customary corporate actions, subject to and only effective upon the occurrence of the ClosingEffective Time, reasonably requested by Parent that are necessary or customary to permit the consummation of the Debt Financing; , including any high yield financing, and to permit the proceeds thereof to be made available on the Closing Date to consummate the Transactions;
(Exi) providing customary authorization and/or representation letters in connection requesting that its independent auditors assist and cooperate with the distribution Debt Financing, including by providing the Specified Auditor Assistance;
(xii) delivering to Parent and its Financing Sources the information with respect to the business, operations and financial condition of the bank information memoranda contemplated by the Debt Commitment Letter Company and its Subsidiaries that is expressly required to prospective lenders and identifying any portion of the information therein that constitutes material non-public information regarding the Business, Seller or its Subsidiaries; be provided that such letters and confirmations expressly state that (x) Seller shall not have any liability of any kind or nature resulting from the use of information in connection with their cooperation with arranging the Debt Financing and (y) the recipient of such letters of authorization shall be entitled to rely only on the representations and warranties contained in the Debt Financing Documents; (F) assisting with the preparation and negotiation of, and facilitating the execution and delivery by the appropriate officers of any Purchased Company of, loan agreements, pledge and security documents and other definitive documents and/or certificates contemplated by the Debt Commitment Letter; and
(Gxiii) have a senior financial officer causing the Financial Information, when delivered by the Company to Parent and its Financing Sources, not to contain any material misstatement of any Purchased Company execute and deliver to material fact; provided, however, that, notwithstanding the Financing Sources a solvency certificate in substantially the form attached to the Debt Commitment Letter; foregoing, (HA) cooperating in the replacement or backstop of any outstanding letters of credit issued for the account no obligation of the Business Company or any Purchased of its Subsidiaries under any such certificate, document or instrument (other than (x) the certificates referred to in clause (iv) and (y) the authorization and representation letters referred to in clause (i) above and “know-your-customer” and beneficial ownership information referred to in clause (iv) above) shall be effective until the Closing, (B) none of the Company or any joint venture thereof; of its Subsidiaries shall be required to execute or take any action under any such certificate, document or instrument (Iother than (x) furnish Buyer the certificates referred to in clause (iv) and (y) the Financing Sources at least five Business Days authorization and representation letters referred to in clause (i) above and “know-your-customer” and beneficial ownership information referred to in clause (iv) above) that is not contingent upon the Closing (including the entry into any agreement that is effective before the Closing) or that would be effective prior to the Effective Time, (C) the Company and its Subsidiaries and their respective directors, officers and employees shall not be required to pass any resolution or consent to approve or authorize the Financing or take any action that would cause any such director, officer or employee to incur or be exposed to any actual or potential personal liability, (D) the Company and its Subsidiaries shall not be required to take any action that would reasonably be expected to (x) conflict with any Law or the organizational documents of the Company or any of its Subsidiaries, or that conflicts with or would result in a breach of or a default under any Company Material Contract or (y) cause any condition to Closing Date set forth in this Agreement to fail to be satisfied or otherwise cause a breach of this Agreement and (E) neither the Company nor any of its Subsidiaries shall be responsible for the preparation of any pro forma financial statements or any adjustments to any pro forma financial information required to be provided in accordance with all documentation and other information with respect to the Business and any Purchased Subsidiaries required by the Debt Commitment Letter required under applicable “know your customer” and anti-money laundering lawsthe Company’s reasonable best efforts to provide assistance, rules and regulationsif requested, including the U.S. PATRIOT Act in connection with pro forma financial information shall be limited to providing financial information reasonably available to the extent requested not less than 10 days prior to the Closing Date; (J) consenting to the use of the logos of the Business so long as such use is not reasonably likely to harm or disparage the Business or Company under its reputation, goodwill, products, services, offerings or intellectual property rights; (K) obtaining customary payoff letters and related documents and instruments relating to the repayment of any exiting third party indebtedness for borrowed money required by the Debt Commitment Letter to be repaid on or coincidental with Closing; and (L) supplementing the information covered by this Section 5.22(a)(ii) on a current basis if such supplement is necessary to ensure that such information does not contain an untrue statement of a material fact or omit to state any material fact necessary to make such information not misleading; and
(iii) taking such actions as are reasonably requested by Buyer or its Financing Sources to facilitate the satisfaction on a timely basis of all Financing Conditions that are within its controlreporting systems.
(b) Seller will use its reasonable best efforts, and will cause To the extent the Company or any of its Subsidiaries to use their reasonable best efforts, is required to provide any certificate related to Buyer and its Financing Sources such information as may be necessary so that the information prepared or in connection with materials used in connection with the Debt Financing (including the marketing thereof) is complete and correct in all material respects and does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein, in the light arrangement of the circumstances under which such statements are madeDebt Financing, not misleading.
(c) Seller the Company shall have the right be entitled to review and comment on marketing materials related to used in connection with the arrangement of the Debt Financing prior to the dissemination of such materials to potential lenders or other counterparties to any proposed financing transaction (or filing with any Governmental AuthorityEntity); provided, that Seller the Company shall use reasonable best efforts to communicate in writing their its comments, if any, to Buyer Parent and its counsel within a reasonable period of time under the circumstances and consistent with the time accorded to other participants who were asked to review and comment on such marketing materials. Notwithstanding anything Except as expressly contemplated in this Section 5.22 clauses (A) and (B) of the proviso to clause (a), the contrary, neither Seller nor any of Company and its Affiliates Subsidiaries shall not be required to (i) pay agree to any commitment fee or similar fee, (ii) except in contractual obligation relating to the case of the Purchased Companies following Financing that is not conditioned upon the Closing and that does not terminate without liability to the execution Company and its affiliates upon the termination of authorization and representation letters referred this Agreement. The Company shall not be required to in Section 5.22(a)(ii), incur any Liability (deliver or cause their respective directors, officers or employees to incur the delivery of any Liability) with respect to the cooperation described in this Section 5.22, (iii) approve or enter into any agreement or binding commitment, (iv) provide (or to have any of their respective Representatives provide) any legal opinions or reliance letters, in each case, with respect to or letters in connection with the Debt Financing. The Company hereby consents to the use of its and its Subsidiaries’ logos in connection with the Debt Financing so long as such logos are used solely in a manner that is not intended or reasonably likely to harm, disparage or otherwise adversely affect in any material respect the Company or any of its Subsidiaries or the Sale Leaseback Financing, reputation or (v) execute goodwill of the Company or deliver, or take any corporate or other action to adopt or approve, any documents, agreement, certificate or instrument with respect to the Financing, including any pledge or security documents or closing certificates (other than (x) the execution of authorization and representation letters referred to in Section 5.22(a)(ii) and (y) to the extent necessary for the valid and enforceable execution of definitive Financing documentation, such cooperation as is reasonably necessary to facilitate the adoption of resolutions and consents, as applicable); provided that the foregoing clause (y) shall not prevent any of the officers or directors of any Purchased Company who will remain officers and/or directors of a Purchased Company immediately following the Closing from executing documents, agreements, resolutions, certificates and instruments that do not become effective until the Closingits Subsidiaries.
(dc) Buyer Parent shall indemnify and hold harmless Seller the Company and its AffiliatesSubsidiaries, and each of their respective directors, officers, employees, agents and other Representatives Representatives, from and against any and all Liabilities liabilities, costs, losses and expenses suffered or incurred by the Company, its Subsidiaries and their respective officers, directors, agents, employees and other Representatives in connection with the arrangement of the Debt Financing or the Sale Leaseback Financing or any assistance or activities provided in connection therewith (other than historical information relating to the Business provided by Seller or its Affiliates in writing for the purpose of arranging the Debt Financing)therewith; provided, however, that the foregoing shall not apply in Seller’s to the extent that such liabilities, costs, losses or expenses are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from the willful misconduct or bad faith of the Company, any of its Affiliates’ Subsidiaries or any of their respective directors, officers, employees, agents or other Representatives’ willful misconduct ; provided, however, that Parent shall not be required to reimburse the Company, any of its Subsidiaries or gross negligence. Buyer shall promptly reimburse Seller any of their respective officers, directors, agents or employees for any costs and its Affiliates for all documented out-of-pocket third party costs expenses incurred by Seller and its Affiliates with respect to the preparation of financial statements, financial information or other materials not initially prepared in connection with such cooperation.
the Debt Financing (eit being understood that this clause (i) shall not exclude the reasonable and documented fees and expenses of the Company’s auditors, accountants and counsel in providing the assistance or comfort required by this Section 5.11). Notwithstanding anything to the contrary hereincontrary, it is understood and agreed that the condition set forth in Section 8.02(a6.3(b), as applied it applies to Sellerthe Company’s obligations under this Section 5.22subsection (a) above, shall be deemed satisfied if the Debt Financing is consummated.
(d) The Company shall use reasonable best efforts to be satisfied unless the Financing or the Sale Leaseback Financing has not been obtained as a result of Sellers’s breach of its obligations under this Section 5.22 deliver to Parent executed Payoff Letters no less than one (1) Business Day prior to the extent such breach impairs or adversely affects the Financing or the Sale Leaseback Financing, including the execution, timing and pricing or cost thereof, in a material manner. Buyer Closing Date.
(e) Parent acknowledges and agrees that obtaining the Financing and the Sale Leaseback Financing are is not conditions a condition to Closing. None of Seller or any of its Affiliates shall have any obligations under this Section 5.22 following the consummation of the transactions contemplated hereby.
Appears in 1 contract
Debt Financing Cooperation. (a) Seller Prior to the Closing, the Acquired Company shall, and shall cause each of its Subsidiaries to, and shall use all its reasonable best efforts to cause its Affiliates and Representatives to, use commercially reasonable to provide such all cooperation reasonably requested by Purchaser in connection with the arrangement of the Debt Financing, which commercially reasonable efforts shall include:
(a) furnishing Purchaser as promptly as reasonably practicable with (1) financial information and other pertinent information regarding the Acquired Company and its Subsidiaries as may be reasonably requested by Purchaser to consummate the Debt Financing as is reasonably requested by Buyer; provided customary to be included in marketing materials for senior secured notes (or any documentation or deliverables in connection therewith) and (2) (A) all information and data that Seller would be necessary for the Debt Financing Party to receive customary “comfort” letters from the independent accountants of the Acquired Company in connection with such an offering, and its Affiliates shall in no event be required to provide (B) drafts of such assistance that shall unreasonably interfere with their respective business operations. Such assistance shall include, without limitation, the following, each of “comfort” letters (which shall be at Buyer’s request with reasonably practicable prior notice provide customary “negative assurance” comfort) which such accountants are prepared to issue upon completion of customary procedures and at Buyer’s sole cost (C) all other information and expense:
data necessary for the Purchaser to satisfy the conditions set forth in paragraph 4 and subsection (i) furnishing Buyer and its Financing Sources as promptly as practicable with (x) the financial statements and pro forma financial information referred to in the Commitment Letters (as in effect as of paragraph 8 of Exhibit C of the date hereofDebt Commitment Letter (all such information described in this clause (a)(2), the “Required Information”);
(b) participating in a reasonable number of meetings, presentations, road shows, due diligence sessions, drafting sessions, meetings with prospective debtholders and (y) such other pertinent and customary financial and other information customarily delivered sessions with rating agencies in connection with Buyer’s preparation of a customary bank book, confidential information memorandum, lender presentations, business projections and similar documents for financings that are similar to the Debt Financing and other marketing materials customarily used in connection with the syndication of financings that are similar to the Debt Financing reasonably requested by Buyer (including with respect to acquired entities) in order to market, syndicate and consummate the Debt Financing, and promptly provide Parent assisting with any supplements the preparation of materials for rating agency presentations, road show presentations, offering memoranda, bank information memoranda (including, to such the extent necessary, an additional bank information requested by Buyer pursuant to this clause (i);
(iimemorandum that does not include material non-public information) participation by the senior management team of the Business in the marketing activities undertaken and similar documents required in connection with the marketing of Debt Financing;
(c) cooperating reasonably with the Debt Financing Parties’ due diligence, to the extent customary and reasonable, in connection with the Debt Financing, ; (d) obtaining customary comfort letters of independent accountants (including “negative assurance” comfort) as reasonably requested by Purchaser as necessary and customary for financings similar to the Debt Financing; (Ae) assisting reasonably in the preparation of a customary bank book, confidential information memorandum, lender presentations, business projections and similar documents (B) a reasonable number of meetings with prospective lenders or debt investors, sessions with rating agencies for the Debt Financing and due diligence sessions and otherwise assisting in marketing efforts related to the Debt Financing including, without limitation, direct contact between senior management and representatives of the Business, on the one hand, and the financing sources, potential lenders and investors for the Debt Financing (including, without limitation, the Financing Sources), on the other hand; (C) providing to Buyer from time to time information regarding the Business reasonably requested by the financing sources (including, without limitation, the Financing Sources) and assisting with the preparation of appropriate and customary materials for rating agency presentations, offering and syndication documents (including prospectusesdocuments, private placement memoranda, lender and investor presentations, bank information memoranda prospectuses and similar documents), documents to be used in connection with the offering of notes in connection with the Debt Financing; (Df) taking reasonable reasonably assisting Purchaser in procuring a public corporate actions, subject to credit rating and only effective upon the occurrence a public corporate family rating in respect of the Closingrelevant borrower under the notes to be offered in connection with the Debt Financing; (g) executing and delivering any necessary and customary guarantees, and other definitive financing documents (including one or more note purchase agreements, indentures and/or other instruments) on terms satisfactory to Purchaser in connection with such Debt Financing or other certificates or documents as may reasonably be requested by Purchaser and reasonably assisting Purchaser with respect to the taking of all corporation actions by the Acquired Company and its Subsidiaries with respect to entering such definitive financing documents and otherwise necessary to permit the consummation of the Debt Financing; (E) providing customary authorization and/or representation letters in connection with the distribution of the bank information memoranda contemplated by the Debt Commitment Letter to prospective lenders and identifying any portion of the information therein that constitutes material non-public information regarding the Business, Seller or its Subsidiaries; provided that such letters and confirmations expressly state that (x) Seller shall not have any liability of any kind or nature resulting from the use of information in connection with their cooperation with arranging the Debt Financing and (y) the recipient of such letters of authorization shall be entitled to rely only on the representations and warranties contained in the Debt Financing Documents; (F) assisting with the preparation and negotiation of, and facilitating the execution and delivery by the appropriate officers of any Purchased Company of, loan agreements, pledge and security documents and other definitive documents and/or certificates contemplated by the Debt Commitment Letter; (G) have a senior financial officer of any Purchased Company execute and deliver to the Financing Sources a solvency certificate in substantially the form attached to the Debt Commitment Letter; (H) cooperating in the replacement or backstop of any outstanding letters of credit issued for the account of the Business or any Purchased Subsidiaries or any joint venture thereof; (I) furnish Buyer and the Financing Sources at least five Business Days prior to the Closing Date with all documentation and other information with respect to the Business and any Purchased Subsidiaries required by the Debt Commitment Letter required under applicable “know your customer” and anti-money laundering laws, rules and regulations, including the U.S. PATRIOT Act to the extent requested not less than 10 days prior to the Closing Date; (J) consenting to the use of the logos of the Business so long as such use is not reasonably likely to harm or disparage the Business or its reputation, goodwill, products, services, offerings or intellectual property rights; (K) obtaining customary payoff letters and related documents and instruments relating to the repayment of any exiting third party indebtedness for borrowed money required by the Debt Commitment Letter to be repaid on or coincidental with Closing; and (L) supplementing the information covered by this Section 5.22(a)(ii) on a current basis if such supplement is necessary to ensure that such information does not contain an untrue statement of a material fact or omit to state any material fact necessary to make such information not misleading; and
(iii) taking such actions as are reasonably requested by Buyer or its Financing Sources to facilitate the satisfaction on a timely basis of all Financing Conditions that are within its control.
(b) Seller will use its reasonable best efforts, and will cause its Subsidiaries to use their reasonable best efforts, to provide to Buyer and its Financing Sources such information as may be necessary so that the information prepared in connection with the Debt Financing (including the marketing thereof) is complete and correct in all material respects and does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein, in the light of the circumstances under which such statements are made, not misleading.
(c) Seller shall have the right to review and comment on marketing materials related to the Debt Financing prior to the dissemination of such materials to potential lenders or other counterparties to any proposed financing transaction (or filing with any Governmental Authority); provided, that Seller shall communicate in writing their comments, if any, to Buyer and its counsel within a reasonable period of time under the circumstances and consistent with the time accorded to other participants who were asked to review and comment on such materials. Notwithstanding anything in this Section 5.22 to the contrary, neither Seller nor any of its Affiliates shall be required to (i) pay any commitment fee or similar fee, (ii) except in the case of the Purchased Companies following the Closing and the execution of authorization and representation letters referred to in Section 5.22(a)(ii), incur any Liability (or cause their respective directors, officers or employees to incur any Liability) with respect to the cooperation described in this Section 5.22, (iii) approve or enter into any agreement or binding commitment, (iv) provide (or to have any of their respective Representatives provide) any opinions or reliance letters, in each case, with respect to or in connection with the Financing or the Sale Leaseback Financing, or (v) execute or deliver, or take any corporate or other action to adopt or approve, any documents, agreement, certificate or instrument with respect to the Financing, including any pledge or security documents or closing certificates (other than (x) the execution of authorization and representation letters referred to in Section 5.22(a)(ii) and (y) to the extent necessary for the valid and enforceable execution of definitive Financing documentation, such cooperation as is reasonably necessary to facilitate the adoption of resolutions and consents, as applicable); provided that the foregoing clause (y) shall not prevent any of the officers or directors of any Purchased Company who will remain officers and/or directors of a Purchased Company immediately following the Closing from executing documents, agreements, resolutions, certificates and instruments that do not become effective until the Closing.
(d) Buyer shall indemnify and hold harmless Seller and its Affiliates, and each of their respective directors, officers, employees, agents and other Representatives from and against any and all Liabilities suffered or incurred in connection with the arrangement of the Debt Financing or the Sale Leaseback Financing or any assistance or activities provided in connection therewith (other than historical information relating to the Business provided by Seller or its Affiliates in writing for the purpose of arranging the Debt Financing); provided, however, that the foregoing shall not apply in Seller’s or its Affiliates’ or other Representatives’ willful misconduct or gross negligence. Buyer shall promptly reimburse Seller and its Affiliates for all documented out-of-pocket third party costs incurred by Seller and its Affiliates in connection with such cooperation.
(e) Notwithstanding anything to the contrary herein, it is understood and agreed that the condition set forth in Section 8.02(a), as applied to Seller’s obligations under this Section 5.22, shall be deemed to be satisfied unless the Financing or the Sale Leaseback Financing has not been obtained as a result of Sellers’s breach of its obligations under this Section 5.22 to the extent such breach impairs or adversely affects the Financing or the Sale Leaseback Financing, including the execution, timing and pricing or cost thereof, in a material manner. Buyer acknowledges and agrees that obtaining the Financing and the Sale Leaseback Financing are not conditions to Closing. None of Seller or any of its Affiliates shall have any obligations under this Section 5.22 following the consummation of the transactions contemplated hereby.;
Appears in 1 contract
Samples: Purchase and Sale Agreement
Debt Financing Cooperation. Buyer agrees not to amend, supplement or modify, or enter into any agreements, side letters or arrangements relating to, the Equity Commitment Letter without the prior written consent of each Seller (asuch consent not to be unreasonably withheld, conditioned or delayed). Sellers acknowledge that Buyer’s immediate parent entity intends to obtain unsecured debt financing to finance a portion of the purchase price hereunder (and such financing, if Buyer obtains it, shall be in accordance with the terms set forth on Schedule 6.10), which may include, registered or private notes, syndicated loans and/or bank or other credit or debt facilities of any kind (and commitments in respect thereof) (collectively, the “Proposed Financing” and the arrangers, lenders, holders or other providers of such Proposed Financing, the “Financing Sources”). Buyer acknowledges and agrees that neither the completion of the Marketing Period nor the obtaining of the Proposed Financing shall constitute a condition to its obligation to close the transactions contemplated by this Agreement. Prior to the Closing (or until the earlier termination of this Agreement in accordance with Section 9.1), each Seller shall promptly notify Buyer if such Seller has Knowledge that an Audit Event has occurred. Prior to the Closing, at Buyer’s sole expense (and in the case of Plains Seller, subject to Plains Seller’s rights under the LLC Agreement), each Seller shall, and shall cause its Affiliates and the Company to and use all its commercially reasonable best efforts to cause its Affiliates and Representatives to, provide such cooperation in connection with the arrangement of the Debt Financing as is reasonably requested by Buyer; provided that Seller and its Affiliates shall in no event be required to provide such assistance that shall unreasonably interfere with their respective business operations. Such assistance shall include, without limitation, the following, each of which shall be at Buyer’s request with reasonably practicable prior notice and at Buyer’s sole cost and expense:
(i) furnishing Buyer and its Financing Sources as promptly as practicable with (x) the financial statements and pro forma financial information referred to in the Commitment Letters (as in effect as of the date hereof) and (y) such other pertinent and customary financial and other information customarily delivered in connection with Buyer’s preparation of a customary bank book, confidential information memorandum, lender presentations, business projections and similar documents for financings that are similar to the Debt Financing and other marketing materials customarily used in connection with the syndication of financings that are similar to the Debt Financing reasonably requested by Buyer (including with respect to acquired entitieslegal and accounting representatives) in order to market, syndicate and consummate the Debt Financing, and promptly provide Parent with any supplements to such information requested by Buyer pursuant to this clause (i);
(ii) participation by the senior management team of the Business in the marketing activities undertaken in connection with the marketing of the Debt Financing, including (A) assisting in the preparation of a customary bank book, confidential information memorandum, lender presentations, business projections and similar documents (B) a reasonable number of meetings with prospective lenders or debt investors, sessions with rating agencies for the Debt Financing and due diligence sessions and otherwise assisting in marketing efforts related to the Debt Financing including, without limitation, direct contact between senior management and representatives of the Business, on the one hand, and the financing sources, potential lenders and investors for the Debt Financing (including, without limitation, the Financing Sources), on the other hand; (C) providing to Buyer from time to time information regarding the Business reasonably requested by the financing sources (including, without limitation, the Financing Sources) and assisting with the preparation of appropriate and customary materials for rating agency presentations, offering and syndication documents (including prospectuses, private placement memoranda, lender and investor presentations, bank information memoranda and similar documents), (D) taking reasonable corporate actions, subject to and only effective upon the occurrence of the Closing, reasonably necessary to permit the consummation of the Debt Financing; (E) providing customary authorization and/or representation letters in connection with the distribution of the bank information memoranda contemplated by the Debt Commitment Letter to prospective lenders and identifying any portion of the information therein that constitutes material non-public information regarding the Business, Seller or its Subsidiaries; provided that such letters and confirmations expressly state that (x) Seller shall not have any liability of any kind or nature resulting from the use of information in connection with their cooperation with arranging the Debt Financing and (y) the recipient of such letters of authorization shall be entitled to rely only on the representations and warranties contained in the Debt Financing Documents; (F) assisting with the preparation and negotiation of, and facilitating the execution and delivery by the appropriate officers of any Purchased Company of, loan agreements, pledge and security documents and other definitive documents and/or certificates contemplated by the Debt Commitment Letter; (G) have a senior financial officer of any Purchased Company execute and deliver to the Financing Sources a solvency certificate in substantially the form attached to the Debt Commitment Letter; (H) cooperating in the replacement or backstop of any outstanding letters of credit issued for the account of the Business or any Purchased Subsidiaries or any joint venture thereof; (I) furnish Buyer and the Financing Sources at least five Business Days prior to the Closing Date with all documentation and other information with respect to the Business and any Purchased Subsidiaries required by the Debt Commitment Letter required under applicable “know your customer” and anti-money laundering laws, rules and regulations, including the U.S. PATRIOT Act to the extent requested not less than 10 days prior to the Closing Date; (J) consenting to the use of the logos of the Business so long as such use is not reasonably likely to harm or disparage the Business or its reputation, goodwill, products, services, offerings or intellectual property rights; (K) obtaining customary payoff letters and related documents and instruments relating to the repayment of any exiting third party indebtedness for borrowed money required by the Debt Commitment Letter to be repaid on or coincidental with Closing; and (L) supplementing the information covered by this Section 5.22(a)(ii) on a current basis if such supplement is necessary to ensure that such information does not contain an untrue statement of a material fact or omit to state any material fact necessary to make such information not misleading; and
(iii) taking such actions as are reasonably requested by Buyer or its Financing Sources to facilitate the satisfaction on a timely basis of all Financing Conditions that are within its control.
(b) Seller will use its reasonable best efforts, and will cause its Subsidiaries to use their reasonable best efforts, to provide to Buyer and its Financing Sources such information as may be necessary so that the information prepared in connection with the Debt Financing (including the marketing thereof) is complete and correct in all material respects and does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein, in the light of the circumstances under which such statements are made, not misleading.
(c) Seller shall have the right to review and comment on marketing materials related to the Debt Financing prior to the dissemination of such materials to potential lenders or other counterparties to any proposed financing transaction (or filing with any Governmental Authority); provided, that Seller shall communicate in writing their comments, if any, to Buyer and its counsel within a reasonable period of time under the circumstances and consistent with the time accorded to other participants who were asked to review and comment on such materials. Notwithstanding anything in this Section 5.22 to the contrary, neither Seller nor any of its Affiliates shall be required to (i) pay any commitment fee or similar fee, (ii) except in the case of the Purchased Companies following the Closing and the execution of authorization and representation letters referred to in Section 5.22(a)(ii), incur any Liability (or cause their respective directors, officers or employees to incur any Liability) with respect to the cooperation described in this Section 5.22, (iii) approve or enter into any agreement or binding commitment, (iv) provide (or to have any of their respective Representatives provide) any opinions or reliance lettersto, in each case, on a timely basis, upon the reasonable request of Buyer, use commercially reasonable efforts to (i) provide operational, financial and technical information, including the Required Information, (ii) cooperate in connection with both (A) the arrangement of the Proposed Financing as may be reasonably necessary in connection therewith and (B) the Financing Sources’ due diligence requests with respect to or in connection with information of the Financing or the Sale Leaseback FinancingCompany, or (v) execute or deliver, or take any corporate or other action to adopt or approve, any documents, agreement, certificate or instrument with respect to the Financing, including any pledge or security documents or closing certificates (other than (x) the execution of authorization and representation letters referred to in Section 5.22(a)(ii) and (y) to the extent necessary for the valid and enforceable execution of definitive Financing documentationcustomary; provided, however, that nothing herein shall require such cooperation as is reasonably necessary to facilitate the adoption extent it would interfere unreasonably with the ongoing operations of resolutions and consentsSellers, as applicable); provided that the foregoing clause (y) shall not prevent Company or any of the officers their respective Affiliates or directors of Representatives or would require any Purchased Company who will remain officers and/or directors of such Person to violate any Law or agreement to which it is a Purchased Company immediately following the Closing from executing documents, agreements, resolutions, certificates and instruments that do not become effective until the Closing.
(d) party. Buyer shall indemnify and hold harmless each Seller and its Affiliates, the Company and their respective Affiliates and each of their respective directors, officers, employeesemployees and representatives, agents and other Representatives from and against any and all Liabilities liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties imposed on, sustained, suffered or incurred by, or asserted against, any of them, relating to, arising out of or resulting from the Proposed Financing (including any action taken in connection accordance with the arrangement of the Debt Financing or the Sale Leaseback Financing or this Section 6.10) and any assistance or activities provided information utilized in connection therewith (other than historical information relating to the Business provided fullest extent permitted by applicable Law, except to the extent that any of the foregoing arise from the bad faith, gross negligence or willful misconduct of such Seller or the Company or any of their respective Affiliates, directors, officers, employees or representatives, as applicable (except that the foregoing indemnity shall not apply to Losses for which such Seller is obligated to indemnify the Buyer Indemnified Parties pursuant to Section 10.2(a)), and the foregoing obligations shall survive termination of this Agreement. In no event shall (1) a Seller be in breach of this Agreement or (2) Buyer be relieved of its Affiliates obligation to consummate the Closing, in writing for each case, (A) because of the purpose failure by a Seller to deliver, after use of arranging its commercially reasonable efforts to do so subject to its rights under the Debt Financing)LLC Agreement, any financial or other information, including any Required Information, that is not currently in the possession of such Seller on the date of this Agreement or (B) due to the occurrence of an Audit Event; provided, however, that the foregoing shall not apply in Seller’s or its Affiliates’ or other Representatives’ willful misconduct or gross negligence. Buyer shall promptly reimburse Seller if and its Affiliates for all documented out-of-pocket third party costs incurred by Seller and its Affiliates in connection with such cooperation.
(e) Notwithstanding anything to the contrary herein, it is understood and agreed that the condition set forth in Section 8.02(a), as applied to Seller’s obligations under this Section 5.22, shall be deemed to be satisfied unless the Financing or the Sale Leaseback Financing has not been obtained as a result of Sellers’s breach of its obligations under this Section 5.22 to the extent either Seller is otherwise in breach of this Agreement or Buyer is otherwise relieved of its obligation to consummate the Closing, the foregoing does not modify or override such breach impairs or adversely affects the Financing other rights or the Sale Leaseback Financing, including the execution, timing and pricing or cost thereof, in a material manner. Buyer acknowledges and agrees that obtaining the Financing and the Sale Leaseback Financing are not conditions to Closing. None of Seller or any of its Affiliates shall have any obligations under this Section 5.22 following the consummation of the transactions contemplated herebyrespective provisions.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Magellan Midstream Partners Lp)
Debt Financing Cooperation. (a) Seller shallThe Company shall use, and shall use all cause each of its Subsidiaries to use, commercially reasonable best efforts to cause its Affiliates and Representatives to, provide such cooperation in connection with the arrangement of the Debt Financing as is customary for similar debt financings and is reasonably requested by Buyer; provided that Seller and its Affiliates shall in no event be required to provide such assistance that shall unreasonably interfere with their respective business operationsParent. Such assistance shall include, without limitation, include the following, each of which shall be at Buyer’s request with reasonably practicable prior notice and at BuyerParent’s sole cost and expense:
(i) furnishing Buyer and its Financing Sources as promptly as practicable with (x) participation by the financial statements and pro forma financial information referred to senior management team of the Company in the Commitment Letters (as in effect as of the date hereof) and (y) such other pertinent and customary financial and other information customarily delivered marketing activities undertaken in connection with Buyer’s preparation of a customary bank book, confidential information memorandum, lender presentations, business projections and similar documents for financings that are similar to assignments permitted under the Debt Financing Commitment Letter, including (A) due diligence sessions related thereto and other marketing materials customarily used in connection (B) meetings with the syndication prospective lenders and debt investors (each of financings that are similar to the Debt Financing reasonably requested which may be conducted by Buyer (including with respect to acquired entities) in order to market, syndicate and consummate the Debt Financing, and promptly provide Parent with any supplements to such information requested by Buyer pursuant to this clause (iconference call);
(ii) participation by the senior management team of the Business in Company in, and assistance with, the marketing activities undertaken preparation of rating agency presentations and meetings with rating agencies required in connection with the marketing Debt Financing (including customary authorization letters), if necessary;
(iii) delivery to Parent of the Debt Financing, including (A) assisting in the preparation of a customary bank book, confidential information memorandum, lender presentations, business projections Financing Information and similar documents (B) a reasonable number of meetings with prospective lenders or debt investors, sessions with rating agencies for the Debt Financing and due diligence sessions and otherwise assisting in marketing efforts related to the Debt Financing including, without limitation, direct contact between senior management and representatives of the Business, on the one hand, and the financing sources, potential lenders and investors for the Debt Financing (including, without limitation, the Financing Sources), on the other hand; (C) providing to Buyer from time to time time, other pertinent and customary information regarding the Business Company and its Subsidiaries reasonably requested by the financing sources Financing Sources and reasonably available to the Company;
(including, without limitation, iv) participation by senior management of the Company in the negotiation and furnishing of the Debt Financing Documents as may be reasonably requested by Parent; provided that such Debt Financing Documents shall be effective no earlier than as of the Effective Time;
(v) cooperating reasonably with the Financing Sources’ due diligence, to the extent reasonable and customary;
(vi) and assisting with reasonably facilitating the preparation taking of appropriate and customary materials for rating agency presentations, offering and syndication documents (including prospectuses, private placement memoranda, lender and investor presentations, bank information memoranda and similar documents), (D) taking reasonable all corporate actions, subject to and only effective upon the occurrence of the ClosingEffective Time, reasonably necessary requested by Parent to permit the consummation of the Debt Financing; Financing and to permit the proceeds thereof to be made available to Parent (E) providing customary authorization and/or representation letters in connection with the distribution of the bank information memoranda contemplated by the Debt Commitment Letter to prospective lenders and identifying any portion of the information therein that constitutes material non-public information regarding the Business, Seller or its Subsidiaries) immediately after; provided provided, that no such letters and confirmations expressly state that (x) Seller shall not have any liability of any kind or nature resulting from the use of information in connection with their cooperation with arranging the Debt Financing and (y) the recipient of such letters of authorization action shall be entitled required of the Company Board and/or any committee thereof, in any case, which is effective prior to rely only on the representations and warranties contained in Effective Time; and
(vii) providing any information about the Debt Financing Documents; (F) assisting with the preparation and negotiation of, and facilitating the execution and delivery Company required by the appropriate officers any of any Purchased Company of, loan agreements, pledge and security documents and other definitive documents and/or certificates contemplated by the Debt Commitment Letter; (G) have a senior financial officer of any Purchased Company execute and deliver to the Financing Sources a solvency certificate in substantially the form attached to the Debt Commitment Letter; (H) cooperating in the replacement or backstop of any outstanding letters of credit issued for the account of the Business or any Purchased Subsidiaries or any joint venture thereof; (I) furnish Buyer and the Financing Sources at least five Business Days prior to the Closing Date comply with all documentation and other information with respect to the Business and any Purchased Subsidiaries required by the Debt Commitment Letter required under applicable “know your customer” and anti-money laundering laws, rules and regulations, including the U.S. USA PATRIOT Act at least four (4) Business Days prior to the Closing, to the extent requested not less than 10 days by Parent within nine (9) Business Days prior to the Closing DateClosing; provided, however, that (1) other than customary authorization letters (if any), no obligation of the Company or any of its Subsidiaries under any such certificate, document or instrument shall be effective until the Closing; (J2) consenting other than customary authorization letters (if any), none of the Company or any of its Subsidiaries shall be required to take any action under any certificate, document or instrument that is not contingent upon the Closing (including the entry into any agreement that is effective before the Closing), that does not terminate without liability to the use Company upon the termination of the logos of the Business so long as such use is not reasonably likely to harm this Agreement or disparage the Business or its reputation, goodwill, products, services, offerings or intellectual property rights; (K) obtaining customary payoff letters and related documents and instruments relating that would be effective prior to the repayment of any exiting third party indebtedness for borrowed money required by the Debt Commitment Letter to be repaid on or coincidental with ClosingEffective Time; and (L3) supplementing the information covered by foregoing provisions shall not require cooperation to the extent it would (I) interfere unreasonably with the business or operations of the Company or any of its Subsidiaries, (II) cause any condition to Closing to not be satisfied or otherwise cause any breach of this Section 5.22(a)(iiAgreement (including any representations or warranties thereunder), (III) on a current basis if such supplement is necessary to ensure that such information does not contain an untrue statement cause the Company or any of a material fact or omit to state any material fact necessary to make such information not misleading; and
(iii) taking such actions as are reasonably requested by Buyer or its Financing Sources to facilitate the satisfaction on a timely basis of all Financing Conditions that are within its control.
(b) Seller will use its reasonable best efforts, and will cause its Subsidiaries to incur any liability in connection with or related to the Debt Financing prior to the Effective Time, (IV) result in the material contravention of, or that could reasonably be expected to result in a material violation or breach of, or a default under, any Laws, under any material Contract or under any confidentiality arrangement to which the Company or any of its Subsidiaries is a party in effect on the date hereof, (V) require the Company to provide access to or disclose information that the Company determines would jeopardize any attorney-client privilege of the Company or any of its Subsidiaries or (VI) require the Company or any of its Subsidiaries to make any representations, warranties or certifications as to which, after the Company’s use their of reasonable best effortsefforts to cause such representation, warranty or certification to be true, the Company has determined that such representation, warranty or certification is not true. Notwithstanding anything to the contrary elsewhere in this Agreement, neither the Company nor any Subsidiary thereof shall be required to pay any commitment or other similar fee or make any other payment or incur any other expense or liability or provide or agree to provide to Buyer and its Financing Sources such information as may be necessary so that the information prepared any indemnity in connection with the Debt Financing (including that is effective prior to the marketing thereof) is complete and correct in all material respects and does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein, in the light of the circumstances under which such statements are made, not misleadingEffective Time.
(cb) Seller The Company shall have the right to review and comment on marketing materials related to used in connection with the arrangement of the Debt Financing prior to the dissemination of such materials to potential lenders or other counterparties to any proposed financing transaction (or filing with any Governmental Authority)counterparties; provided, that Seller (x) the Company shall promptly communicate in writing their its comments, if any, to Buyer Parent and its counsel within a reasonable period of time under the circumstances and consistent with the time accorded to other participants who were asked to review and comment on such materials. Notwithstanding anything in this Section 5.22 to the contrary, neither Seller nor any of its Affiliates shall be required to (i) pay any commitment fee or similar fee, (ii) except in the case of the Purchased Companies following the Closing and the execution of authorization and representation letters referred to in Section 5.22(a)(ii), incur any Liability (or cause their respective directors, officers or employees to incur any Liability) with respect to the cooperation described in this Section 5.22, (iii) approve or enter into any agreement or binding commitment, (iv) provide (or to have any of their respective Representatives provide) any opinions or reliance letters, in each case, with respect to or in connection with the Financing or the Sale Leaseback Financing, or (v) execute or deliver, or take any corporate or other action to adopt or approve, any documents, agreement, certificate or instrument with respect to the Financing, including any pledge or security documents or closing certificates (other than (x) the execution of authorization and representation letters referred to in Section 5.22(a)(ii) and (y) Parent and its counsel shall give due regard and consideration to any such comments of the extent necessary Company. Notwithstanding the foregoing, Parent shall be solely responsible for the valid and enforceable execution of definitive Financing documentation, such cooperation as is reasonably necessary to facilitate the adoption of resolutions and consents, as applicable); provided that the foregoing clause (y) shall not prevent any of the officers or directors content of any Purchased Company who will remain officers and/or directors of a Purchased Company immediately following the Closing from executing documents, agreements, resolutions, certificates and instruments that do not become effective until the Closingsuch marketing materials.
(dc) Buyer Parent shall indemnify and hold harmless Seller the Company and its AffiliatesSubsidiaries, and each of their respective directors, officers, employees, agents and other Representatives Representatives, from and against any and all Liabilities liabilities, costs or expenses suffered or incurred in connection with the arrangement of the Debt Financing or the Sale Leaseback Financing or any assistance or activities provided in connection therewith (other than historical information relating pursuant to Section 5.20(a), except to the Business provided by Seller extent such losses are suffered or its Affiliates in writing for the purpose incurred (i) as a result of arranging the Debt Financing); providedany such Person’s bad faith, howevergross negligence, that the foregoing shall not apply in Seller’s or its Affiliates’ or other Representatives’ willful misconduct or gross negligencefraud, as applicable, or (ii) as a result of any material errors, omission, misstatements or inaccuracies contained in any written information (including any of the Financial Statements or any other historical financial information). Buyer Promptly upon the termination of this Agreement pursuant to Section 7.1, Parent shall promptly reimburse Seller and its Affiliates the Company for all reasonable and documented out-of-pocket third third-party costs and expenses incurred by Seller and its Affiliates the Company in connection with the cooperation under Section 5.20(a); provided, that the Company shall not incur such cooperationexpenses in excess of $25,000 in the aggregate without Parent’s prior written consent.
(d) All non-public or otherwise confidential information regarding the Company and its Subsidiaries obtained by Parent or its representatives shall be kept confidential in accordance with the Confidentiality Agreement, except that Parent shall be permitted to disclose such information to potential investors and lenders and their respective general or limited partners, shareholders, managers, members, directors, officers, employees, agents and representatives, as necessary and consistent with customary practices in connection with the Debt Financing, in each case, subject to customary confidentiality undertakings with respect to such information.
(e) Notwithstanding anything The Company and its Subsidiaries consents to the contrary hereinuse of their logos by Parent, it is understood and agreed that the condition set forth in Section 8.02(a), as applied to Seller’s obligations under this Section 5.22, shall be deemed to be satisfied unless the Financing Sources and their respective representatives in connection with the Debt Financing in a manner customary for such financing transactions; provided, that such logos are used solely in a manner that is not intended to or reasonably expected to harm or disparage the Company and its Subsidiaries or the Sale Leaseback Financing has not been obtained as a result of Sellers’s breach of its obligations under this Section 5.22 to the extent such breach impairs reputation or adversely affects the Financing or the Sale Leaseback Financing, including the execution, timing and pricing or cost thereof, in a material manner. Buyer acknowledges and agrees that obtaining the Financing and the Sale Leaseback Financing are not conditions to Closing. None of Seller or any of its Affiliates shall have any obligations under this Section 5.22 following the consummation goodwill of the transactions contemplated herebyCompany and its Subsidiaries.
Appears in 1 contract
Debt Financing Cooperation. (a) Seller Prior to the Effective Time, upon the request of the Company, Parent shall keep the Company reasonably informed in reasonable detail of the status of its efforts to arrange any Debt Financing (as defined below). Without the prior written consent of the Paired Entities, the Debt Financing may not exceed $5,000,000,000.
(b) Prior to the Closing, the Paired Entities shall, and shall cause Paired Entities Subsidiaries to, use all their respective commercially reasonable best efforts, and shall use commercially reasonable efforts to cause their and the Paired Entities Subsidiaries’ Representatives, to provide to Parent and its Affiliates and Representatives to, provide potential financing sources for the Debt Financing (the “Financing Sources”) such customary cooperation reasonably requested in writing by Parent in connection with Parent arranging financing with respect to the arrangement Paired Entities, the Paired Entities Subsidiaries or the Paired Entities Properties effective as of or after (and conditioned on the occurrence of) the Effective Time (collectively, the “Debt Financing as is reasonably requested by BuyerFinancing”); provided provided, that Seller the Paired Entities and its Affiliates Paired Entities Subsidiaries shall in no event be required to provide such assistance that shall unreasonably interfere with their respective its business operationsoperations and other than in accordance with guidelines reasonably necessary in response to or related to COVID-19. Such assistance shall include, without limitation, include using commercially reasonable efforts to do the following, each of which shall be at BuyerParent’s written request with reasonably practicable reasonable prior notice and at Buyer’s sole cost and expensenotice:
(i) furnishing Buyer participation by senior management of the Paired Entities and the Paired Entities Subsidiaries in a reasonable number of meetings, due diligence sessions, cooperation with the Financing Sources’ “road shows”, lender presentations and sessions with rating agencies and prospective lenders and purchasers of, the Debt Financing, in each case that are reasonably necessary and customary for a financing similar to the Debt Financing;
(ii) delivery to Parent and its Financing Sources as promptly as practicable with (x) the financial statements such financial, statistical and pro forma financial information referred to in the Commitment Letters (as in effect as of the date hereof) and (y) such other pertinent information and customary financial projections relating to the Paired Entities and other information the Paired Entities Subsidiaries as may be reasonably requested by Parent and as is customarily delivered in connection with Buyer’s preparation a financing of a customary bank book, confidential information memorandum, lender presentations, business projections and similar documents for financings that are similar to the Debt Financing and other marketing materials customarily used in connection with the syndication of financings that are similar to the Debt Financing reasonably requested by Buyer (including with respect to acquired entities) in order to market, syndicate and consummate the Debt Financing, and promptly provide Parent with any supplements to such information requested by Buyer pursuant to this clause (i)applicable type;
(iiiii) participation by the senior management team of the Business in the marketing activities undertaken in connection with the marketing of the Debt Financing, including (A) assisting in the preparation of a customary bank book, confidential information memorandum, lender presentations, business projections executing and similar documents (B) a reasonable number of meetings with prospective lenders or debt investors, sessions with rating agencies for the Debt Financing and due diligence sessions and otherwise assisting in marketing efforts related to the Debt Financing including, without limitation, direct contact between senior management and representatives of the Business, on the one hand, and the financing sources, potential lenders and investors for the Debt Financing (including, without limitation, the Financing Sources), on the other hand; (C) providing to Buyer from time to time information regarding the Business reasonably requested by the financing sources (including, without limitation, the Financing Sources) and assisting with the preparation of appropriate and customary materials for rating agency presentations, offering and syndication documents (including prospectuses, private placement memoranda, lender and investor presentations, bank information memoranda and similar documents), (D) taking reasonable corporate actions, subject to and only effective upon the occurrence of the Closing, reasonably necessary to permit the consummation of the Debt Financing; (E) providing customary delivering authorization and/or representation letters in connection with authorizing the distribution of the bank information memoranda contemplated by the Debt Commitment Letter to prospective lenders and identifying any portion of the information therein that constitutes material non-public information regarding the Business, Seller or its Subsidiaries; provided that such letters and confirmations expressly state that (x) Seller shall not have any liability of any kind or nature resulting from the use of information in connection with their cooperation with arranging the Debt Financing and (y) the recipient of such letters of authorization shall be entitled to rely only on the representations and warranties contained in the Debt Financing Documents; (F) assisting with the preparation and negotiation of, and facilitating the execution and delivery by the appropriate officers of any Purchased Company of, loan agreements, pledge and security documents and other definitive documents and/or certificates contemplated by the Debt Commitment Letter; (G) have a senior financial officer of any Purchased Company execute and deliver to the Financing Sources a solvency certificate in substantially the form attached to the Debt Commitment Letter; and other prospective lenders or investors;
(Hiv) cooperating in the replacement or backstop of any outstanding letters of credit issued for the account of the Business or any Purchased Subsidiaries or any joint venture thereof; (I) furnish Buyer furnishing Parent and the Financing Sources at least five Business Days prior to the Closing Date promptly with all reasonable documentation and other information with respect relating to the Business Paired Entities and any Purchased of the Paired Entities Subsidiaries which any lender providing or arranging Debt Financing has determined is required by the Debt Commitment Letter required regulatory authorities under applicable “know your customer” and anti-money laundering laws, rules and regulations, including the U.S. PATRIOT Patriot Act to the extent and which is requested not less than 10 days at least ten (10) Business Days prior to the Closing Date; ;
(Jv) consenting as may be reasonably requested by Parent to facilitate the Debt Financing, following the obtainment of the Requisite Company Vote and Requisite Hospitality Vote, form new direct and indirect Paired Entities Subsidiaries pursuant to documentation reasonably satisfactory to Parent and the Company;
(vi) as may be reasonably requested by Parent to facilitate the Debt Financing, no earlier than immediately prior to the use Effective Time on the Closing Date and provided such actions would not adversely affect the Tax status of the logos Company or the Paired Entities Subsidiaries or cause the Company or Hospitality to be subject to additional Taxes that are not indemnified by Parent under Section 7.11(d), transfer or otherwise restructure its ownership of existing Paired Entities Subsidiaries, properties or other assets, in each case, pursuant to documentation reasonably acceptable to Parent and the Company;
(vii) providing reasonably timely and customary access to diligence materials reasonably available to the Company, appropriate personnel and properties during normal business hours and on reasonable advance notice to allow Financing Sources and their representatives to complete all reasonable and customary due diligence;
(viii) providing reasonable and customary assistance with respect to the granting of mortgages and security interests in collateral for the Debt Financing and attempting to obtain any consents associated therewith (effective no earlier than the Effective Time);
(ix) to the extent reasonably requested by a Financing Source, attempting to obtain estoppels and certificates from tenants, lenders, managers, franchisors, ground lessors and counterparties to reciprocal easement agreements and PILOT agreements in form and substance reasonably satisfactory to such Financing Source;
(x) cooperating in connection with the repayment or defeasance of any existing indebtedness of any Paired Entity or any Paired Entities Subsidiaries as of the Business so long as Effective Time and the release of related Encumbrances, including delivering such use is not reasonably likely to harm payoff, defeasance or disparage the Business or its reputation, goodwill, products, services, offerings or intellectual property rights; (K) obtaining customary payoff letters and related documents and instruments relating to the repayment similar notices under any existing loans of any exiting third party indebtedness for borrowed money required by the Debt Commitment Letter to be repaid on Paired Entity or coincidental with Closing; and (L) supplementing the information covered by this Section 5.22(a)(ii) on a current basis if such supplement is necessary to ensure that such information does not contain an untrue statement of a material fact or omit to state any material fact necessary to make such information not misleading; and
(iii) taking such actions Paired Entities Subsidiaries as are reasonably requested by Buyer or its Financing Sources Parent (provided that the Paired Entities and the Paired Entities Subsidiaries shall not be required to facilitate the satisfaction on a timely basis of all Financing Conditions deliver any notices that are within its control.not conditioned on the occurrence of the Effective Time);
(bxi) Seller will use its reasonable best efforts, and will cause its Subsidiaries to use their reasonable best effortsthe extent reasonably requested by a Financing Source, to provide the extent reasonably requested by Parent, obtaining accountants’ comfort letters and consents to Buyer the use of accountants’ audit reports relating to the Paired Entities and the Paired Entities Subsidiaries;
(xii) permitting Parent and its Representatives to conduct appraisal and environmental and engineering inspections of each real estate property owned and, subject to obtaining required third party consents with respect thereto (which the Paired Entities shall use reasonable efforts to obtain), leased by the Paired Entities or any of the Paired Entities Subsidiaries; provided that (A) neither Parent, any Financing Source, their respective Representatives, nor any other person shall have the right to take and analyze any samples of any environmental media (including soil, groundwater, surface water, air or sediment) or any building material or to perform any invasive testing procedure on any such property, (B) Parent shall schedule and coordinate all inspections with the Company in accordance with Section 7.7 and (C) the Company shall be entitled to have representatives present at all times during any such inspection;
(xiii) assisting Parent and its Financing Sources with the preparation of materials for rating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses and similar documents necessary, proper or advisable in connection with the Debt Financing;
(xiv) reasonably cooperating with the marketing efforts of Parent and its Financing Sources for any Debt Financing to be raised by Parent to complete the Mergers and the other transactions contemplated by this Agreement; and
(xv) facilitating, effective no earlier than the Effective Time, the execution and delivery of definitive financing, pledge, security and guarantee documents relating to the Debt Financing, including customary indemnities and bring down certificates issued in connection with a securitization of the Debt Financing. provided, however, that notwithstanding anything in this Agreement to the contrary, neither the Paired Entities nor any of the Paired Entities Subsidiaries shall (A) be required to make any representation, warranty or certification, as to which, after the Paired Entities’ use of commercially reasonable efforts to cause such information as may representation, warranty or certification to be necessary so true, the Paired Entities have in their good faith determined that such representation, warranty or certification is not true, (B) be required to pay any commitment, documentation, due diligence or other similar fee, or be required to incur any liability to the information prepared Financing Sources in connection with the Debt Financing (including the marketing thereof) is complete and correct in all material respects and does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein, in the light of the circumstances under which such statements are made, not misleading.
(c) Seller shall have the right to review and comment on marketing materials related to the Debt Financing prior to the dissemination Effective Time (except those fees and expenses that the Paired Entities are reimbursed for by Parent, (C) except with respect to delivery of such materials to potential lenders or other counterparties to any proposed financing transaction the documentation specified in Sections 7.11(b)(iii), (or filing with any Governmental Authorityiv); provided, that Seller shall communicate in writing their comments(v), if any(vi), to Buyer (x) and its counsel within a reasonable period of time under the circumstances and consistent with the time accorded to other participants who were asked to review and comment on such materials. Notwithstanding anything in this Section 5.22 to the contrary(xv), neither Seller nor any of its Affiliates shall be required to (i) pay take any commitment fee action that would require any director, officer or similar fee, (ii) except in the case employee of either of the Purchased Companies following the Closing and the execution of authorization and representation letters referred to in Section 5.22(a)(ii), incur any Liability (Paired Entities or cause their respective directors, officers or employees to incur any Liability) with respect to the cooperation described in this Section 5.22, (iii) approve or enter into any agreement or binding commitment, (iv) provide (or to have any of their respective Representatives provide) the Paired Entities Subsidiaries to execute any opinions or reliance letters, in each case, with respect to or in connection with the Financing or the Sale Leaseback Financing, or (v) execute or deliver, or take any corporate or other action to adopt or approve, any documentsdocument, agreement, certificate or instrument instrument, (D) be required to issue any offering documents, private placement memoranda, bank information memoranda, prospectuses and similar documents required in relation to the Debt Financing, (E) be required to have its pre-Closing board of directors (or other governing body) adopt resolutions approving the agreements, documents and instruments pursuant to which the Debt Financing is obtained except as contemplated by this Agreement, including pursuant to Sections 7.11(b)(v) and (vi), (F) be required to permit any inspection, or to disclose any information, that in the reasonable judgment of the Paired Entities would result in the disclosure of any trade secrets of third parties or violate any of its obligations with respect to confidentiality, (G) be required to disclose any privileged or protected (including attorney-client privilege, attorney work-product protections and confidentiality protections) information of any of the FinancingPaired Entities or the Paired Entities Subsidiaries, including any pledge or security documents or closing certificates it being agreed that, in each case of clauses (other than (x) the execution of authorization and representation letters referred to in Section 5.22(a)(iiF) and (yG), the Paired Entities shall use their respective commercially reasonable efforts to cause such information to be provided in a manner that would not reasonably be expected to violate such restriction or waive the applicable privilege or protection; and (H) be required to the extent necessary for the valid and enforceable execution of definitive Financing documentation, such cooperation as is reasonably necessary permit any person to facilitate the adoption of resolutions and consents, as applicable); provided that the foregoing clause (y) shall not prevent take any of the officers samples or directors perform any invasive testing of any Purchased Company who will remain officers and/or directors of a Purchased Company immediately following the Closing from executing documentsenvironmental media (including soil, agreementsgroundwater, resolutionssurface water, certificates and instruments that do not become effective until the Closing.
(dair or sediment) Buyer shall indemnify and hold harmless Seller and its Affiliates, and each of their respective directors, officers, employees, agents and other Representatives from and against any and all Liabilities suffered or incurred in connection with the arrangement of the Debt Financing or the Sale Leaseback Financing or any assistance or activities provided in connection therewith (other than historical information relating to the Business provided by Seller or its Affiliates in writing for the purpose of arranging the Debt Financing); provided, however, that the foregoing shall not apply in Seller’s or its Affiliates’ or other Representatives’ willful misconduct or gross negligence. Buyer shall promptly reimburse Seller and its Affiliates for all documented out-of-pocket third party costs incurred by Seller and its Affiliates in connection with such cooperationbuilding material.
(e) Notwithstanding anything to the contrary herein, it is understood and agreed that the condition set forth in Section 8.02(a), as applied to Seller’s obligations under this Section 5.22, shall be deemed to be satisfied unless the Financing or the Sale Leaseback Financing has not been obtained as a result of Sellers’s breach of its obligations under this Section 5.22 to the extent such breach impairs or adversely affects the Financing or the Sale Leaseback Financing, including the execution, timing and pricing or cost thereof, in a material manner. Buyer acknowledges and agrees that obtaining the Financing and the Sale Leaseback Financing are not conditions to Closing. None of Seller or any of its Affiliates shall have any obligations under this Section 5.22 following the consummation of the transactions contemplated hereby.
Appears in 1 contract
Debt Financing Cooperation. (a) Seller shallPrior to the earlier of (x) the Closing Date and (y) termination of this Agreement pursuant to Section 9.1, General Partner and Partnership shall provide, and shall use all their commercially reasonable best efforts to cause its Affiliates the Group Companies and their respective Representatives toto provide, provide the Buyer Parties such cooperation in connection as may be reasonably requested by the Buyer Parties with the arrangement of respect to the Debt Financing as is reasonably requested by Buyer; provided that Seller and its Affiliates shall in no event be required to provide such assistance that shall unreasonably interfere with their respective business operations(or any Alternative Financing). Such assistance cooperation shall include, without limitation, the following, each of which shall be at Buyer’s request with reasonably practicable prior notice and at Buyer’s sole cost and expense:
(i) furnishing Buyer and its Financing Sources as promptly as practicable with (x) the financial statements and pro forma financial information referred to in the Commitment Letters (as in effect as of the date hereof) and (y) such other pertinent and customary financial and other information customarily delivered in connection with Buyer’s preparation of a customary bank bookupon reasonable notice, confidential information memorandum, lender presentations, business projections and similar documents for financings that are similar to the Debt Financing and other marketing materials customarily used in connection with the syndication of financings that are similar to the Debt Financing reasonably requested by Buyer (including with respect to acquired entities) in order to market, syndicate and consummate the Debt Financing, and promptly provide Parent with any supplements to such information requested by Buyer pursuant to this clause (i);
(ii) participation by the senior management team of the Business in the marketing activities undertaken in connection with the marketing of the Debt Financing, including (A) assisting make appropriate senior officer reasonably available to participate in “bank meetings” of prospective lenders at times during normal business hours and locations to be mutually agreed upon (and to the preparation of a customary bank bookextent necessary, confidential information memorandum, lender presentations, business projections and similar documents (B) a reasonable number of meetings one or more conference calls with prospective lenders or debt investorsin addition to any such meetings), and sessions with rating agencies for to the Debt Financing extent the Buyer Parties are attempting to obtain a public corporate credit rating and due diligence sessions and otherwise assisting in marketing efforts related public corporate family rating pursuant to the Debt Commitment Letters, the commitment letter relating to the Alternative Financing includingor any definitive documentation relating thereto, without limitation, and (B) cause customary direct contact between senior management management, Representatives and representatives advisors of the BusinessGroup Companies, on the one hand, and the financing sources, proposed lenders providing the Debt Financing (or any Alternative Financing) or their Representatives on the other hand at mutually agreed upon times and locations during normal business hours;
(ii) assist with the due diligence efforts of potential lenders and investors the preparation of customary marketing materials for the Debt Financing (includingor any Alternative Financing), without limitationincluding bank confidential information memoranda, lenders presentations, rating agency presentations and similar documents reasonably necessary in connection with the Debt Financing (or any Alternative Financing), including delivering a customary authorization letter (which shall include a representation to the Financing SourcesSources in connection with (i) the preparation of each financial statements and other financial data of the Group Companies and (ii) as to the accuracy or (as applicable) fairness of the information about the Group Companies contained in the disclosure and marketing materials related to the Debt Financing (or any Alternative Financing) and the Required Financial Information), on ;
(iii) furnishing the other hand; (C) providing to Buyer from time to time information regarding Parties and its Financing Sources with the Business Required Financial Information reasonably requested by the financing sources Buyer Parties (including, without limitation, as soon as reasonably practicable after the Financing Sourcesdate hereof) in each case that is Compliant;
(iv) (A) assist in facilitating the pledge of collateral and the obtaining of guarantees as of the Closing (but not before) and assisting with (B) execute and deliver, solely to the preparation of appropriate and customary materials for rating agency presentations, offering and syndication documents (including prospectuses, private placement memoranda, lender and investor presentations, bank information memoranda and similar documents), (D) taking reasonable corporate actions, subject to and only extent effective upon the occurrence as of the Closing, reasonably necessary to permit the consummation of the Debt Financing; (E) providing customary authorization and/or representation letters in connection with the distribution of the bank information memoranda contemplated by the Debt Commitment Letter to prospective lenders and identifying any portion of the information therein that constitutes material non-public information regarding the Businessdefinitive financing documentation, Seller or its Subsidiaries; provided that such letters and confirmations expressly state that (x) Seller shall not have any liability of any kind or nature resulting from the use of information in connection with their cooperation with arranging the Debt Financing and (y) the recipient of such letters of authorization shall be entitled to rely only on the representations and warranties contained in the Debt Financing Documents; (F) assisting with the preparation and negotiation of, and facilitating the execution and delivery by the appropriate officers of any Purchased Company of, loan agreements, including customary pledge and security documents and other definitive certificates, documents and/or and instruments related to guarantees and collateral (including the delivering or procuring the delivery of share certificates contemplated required to be delivered as conditions to the Debt Financing (or any Alternative Financing)), in each case, to the extent required by the Debt Commitment Letter; (G) have a senior financial officer of any Purchased Company execute and deliver Letters, the commitment letter relating to the Alternative Financing Sources a solvency certificate in substantially or any definitive documentation relating thereto;
(v) using reasonable best efforts to obtain accountants’ consents to use the form attached accountant’s audit reports relating to the Group Companies and other documents required by the Debt Commitment Letter; (H) cooperating in Letters, the replacement or backstop of any outstanding letters of credit issued for commitment letter relating to the account of the Business Alternative Financing or any Purchased Subsidiaries or any joint venture thereof; definitive documentation relating thereto;
(Ivi) furnish to the extent requested by the Buyer and the Financing Sources Parties at least five seven (7) Business Days prior to the Closing Date with all documentation Date, furnish the Buyer Parties and other their Financing Sources information with respect to the Business and any Purchased Subsidiaries Group Companies required by the Debt Commitment Letter required regulatory authorities including under applicable “know your customer” and anti-money laundering laws, rules and regulations, including the U.S. PATRIOT Patriot Act required under the Debt Commitment Letters, the commitment letter relating to the Alternative Financing or any definitive documentation relating thereto; and
(vii) furnish the Buyer Parties with such other customary information regarding the Group Companies (which may be further disclosed and shared with their Financing Sources) as may be reasonably requested by the Buyer Parties to the extent requested not less than 10 days that such information is reasonably available to the Group Companies and is of the type and form customarily included in a bank information memorandum and to the extent contemplated by the Debt Commitment Letters, the commitment letter relating to the Alternative Financing or any definitive documentation relating thereto; provided, that in no event shall any of General Partner and the Group Companies be required to pay any commitment or other fee or incur any other cost, expense, or liability in connection with the Debt Financing prior to the Closing Date; Closing, and provided, further, that nothing herein will require such cooperation (JA) consenting to the extent it unreasonably interferes with the operations of any Group Company or (B) which would violate any obligations or confidentiality or result in violation of any applicable Laws or loss of any privilege or (C) which would require General Partner, any Group Company or any of their respective stockholders, directors or officers to execute any agreement, certificate, document or instrument with respect to the Debt Financing (or the Alternative Financing) that would be effective prior to the Closing. The General Partner and Partnership hereby consent on behalf of the Group Companies to the use of the logos and marks of the Business so long as Group Companies in connection with the Debt Financing and/or Alternative Financing; provided, however, that such use logos and/or marks are used solely in a manner that is not intended, or reasonably likely likely, to harm or disparage any Group Company or the Business reputation or its reputationgoodwill of any Group Company.
(b) The Buyer Parties shall promptly, goodwillupon request by General Partner or any Group Company, productsreimburse General Partner or the relevant Group Company for all reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred by General Partner or the relevant Group Company in connection with their cooperation contemplated by Section 7.19(a). Except as expressly set forth in this Agreement, servicesin no event will General Partner, offerings the Group Companies or intellectual property rights; (K) obtaining customary payoff letters and related documents and instruments relating their Representatives have any liability of any kind or nature to the repayment Buyer Parties, Financing Sources or any other Person arising or resulting from the cooperation provided in Section 7.19(a). Without affecting the rights of the Buyer Parties under this Agreement, the Buyer Parties shall indemnify and hold harmless General Partner, the Group Companies and their respective Affiliates and Representatives from and against any exiting third party indebtedness for borrowed money required and all losses suffered or incurred by any of them in connection with the arrangement of the Debt Commitment Letter Financing and any information utilized in connection therewith; provided, however, that Buyer Parties shall not be required to be repaid on or coincidental with Closing; indemnify and (L) supplementing hold harmless General Partner, the information covered by this Section 5.22(a)(ii) on a current basis if such supplement is necessary Group Companies and their respective Affiliates and Representatives to ensure the extent that such losses arise from information does not provided by General Partner, the Group Companies or their respective Affiliates and Representatives to the Buyer Parties in writing specifically for use in the Debt Financing that contain an any untrue statement of a material fact or omit to state any material fact necessary to make such information not misleading; and
(iii) taking such actions as are reasonably requested by Buyer or its Financing Sources to facilitate the satisfaction on a timely basis of all Financing Conditions that are within its control.
(b) Seller will use its reasonable best efforts, and will cause its Subsidiaries to use their reasonable best efforts, to provide to Buyer and its Financing Sources such information as may be necessary so that the information prepared in connection with the Debt Financing (including the marketing thereof) is complete and correct in all material respects and does not contain any untrue statement of a material fact or omit to state a material fact necessary order to make the statements contained therein, in the light of the circumstances under which such statements they are made, not misleading.
(c) Seller shall have the right to review and comment on marketing materials related to the Debt Financing prior to the dissemination of such materials to potential lenders or other counterparties to any proposed financing transaction (or filing with any Governmental Authority); provided, that Seller shall communicate in writing their comments, if any, to Buyer and its counsel within a reasonable period of time under the circumstances and consistent with the time accorded to other participants who were asked to review and comment on such materials. Notwithstanding anything in this Section 5.22 to the contrary, neither Seller nor any of its Affiliates shall be required to (i) pay any commitment fee or similar fee, (ii) except in the case of the Purchased Companies following the Closing and the execution of authorization and representation letters referred to in Section 5.22(a)(ii), incur any Liability (or cause their respective directors, officers or employees to incur any Liability) with respect to the cooperation described in this Section 5.22, (iii) approve or enter into any agreement or binding commitment, (iv) provide (or to have any of their respective Representatives provide) any opinions or reliance letters, in each case, with respect to or in connection with the Financing or the Sale Leaseback Financing, or (v) execute or deliver, or take any corporate or other action to adopt or approve, any documents, agreement, certificate or instrument with respect to the Financing, including any pledge or security documents or closing certificates (other than (x) the execution of authorization and representation letters referred to in Section 5.22(a)(ii) and (y) to the extent necessary for the valid and enforceable execution of definitive Financing documentation, such cooperation as is reasonably necessary to facilitate the adoption of resolutions and consents, as applicable); provided that the foregoing clause (y) shall not prevent any of the officers or directors of any Purchased Company who will remain officers and/or directors of a Purchased Company immediately following the Closing from executing documents, agreements, resolutions, certificates and instruments that do not become effective until the Closing.
(d) Buyer shall indemnify and hold harmless Seller and its Affiliates, and each of their respective directors, officers, employees, agents and other Representatives from and against any and all Liabilities suffered or incurred in connection with the arrangement of the Debt Financing or the Sale Leaseback Financing or any assistance or activities provided in connection therewith (other than historical information relating to the Business provided by Seller or its Affiliates in writing for the purpose of arranging the Debt Financing); provided, however, that the foregoing shall not apply in Seller’s or its Affiliates’ or other Representatives’ willful misconduct or gross negligence. Buyer shall promptly reimburse Seller and its Affiliates for all documented out-of-pocket third party costs incurred by Seller and its Affiliates in connection with such cooperation.
(e) Notwithstanding anything to the contrary herein, it is understood and agreed that the condition set forth in Section 8.02(a), as applied to Seller’s obligations under this Section 5.22, shall be deemed to be satisfied unless the Financing or the Sale Leaseback Financing has not been obtained as a result of Sellers’s breach of its obligations under this Section 5.22 to the extent such breach impairs or adversely affects the Financing or the Sale Leaseback Financing, including the execution, timing and pricing or cost thereof, in a material manner. Buyer acknowledges and agrees that obtaining the Financing and the Sale Leaseback Financing are not conditions to Closing. None of Seller or any of its Affiliates shall have any obligations under this Section 5.22 following the consummation of the transactions contemplated hereby.
Appears in 1 contract
Debt Financing Cooperation. (a) Seller shallPrior to the Closing, the Company shall use commercially reasonable efforts to provide, and shall use all reasonable best efforts cause the Company Subsidiaries to cause its Affiliates and Representatives toprovide, provide to Parent, at Parent’s sole expense, such customary cooperation as is reasonably requested in writing by Parent in connection with the arrangement and consummation of any debt financing in the form of a credit facility financing, one or more note purchase agreement financings, or one or more issuances of non-convertible and non-exchangeable debt securities in an offering registered under the Securities Act or in a private placement pursuant to an exemption from the registration requirements of the Securities Act to be obtained by Parent or Merger Sub in connection with the consummation of the Transactions (the “Debt Financing”), including using commercially reasonable efforts to, upon Parent’s written request: (i) upon reasonable notice and at reasonable times and locations, cause the appropriate members of senior management of the Company to assist in preparation of customary materials for and participate in a reasonable but limited number of meetings, presentations and road shows with arrangers or agents, prospective lenders and other investors and sessions with rating agencies and accountants and due diligence sessions (in each case which may be telephonic or virtual meetings or sessions) and otherwise provide reasonable and customary cooperation with the marketing and due diligence efforts for any of the Debt Financing as is reasonably requested by BuyerFinancing; provided that Seller and its Affiliates shall in no event be required to provide such assistance that shall unreasonably interfere with their respective business operations. Such assistance shall include, without limitation, the following, each of which shall be at Buyer’s request with reasonably practicable prior notice and at Buyer’s sole cost and expense:
(iii) furnishing Buyer and its Financing Sources as promptly as practicable with (x) the financial statements and pro forma financial information referred to in the Commitment Letters (as in effect as of the date hereof) and (y) such other pertinent and customary financial and other information customarily delivered assist Parent in connection with Buyer’s the preparation of a any guarantee, pledge and security documents, other definitive financing documents (including, to the extent regarding the Company or the Company Subsidiaries, the schedules thereto), or other certificates or documents as may be reasonably requested in writing by Parent, including the use of commercially reasonable efforts to provide original copies of all certificated securities (with transfer powers executed in blank) to the extent in the possession of the Company or the applicable Company Subsidiaries and otherwise reasonably cooperating with Parent in facilitating the pledging of collateral and the granting of security interests related to the collateral if required in connection with the Debt Financing, solely to the extent contingent upon the occurrence of the Closing; (iii) provide reasonable and customary bank book, confidential information memorandum, lender presentations, business projections assistance to Parent in (A) obtaining any corporate credit and similar documents for financings that are similar family ratings from any ratings agencies to the extent required in connection with the Debt Financing and other marketing materials customarily used in connection with the syndication of financings that are similar to the Debt Financing reasonably requested by Buyer (including with respect to acquired entitiesB) in order to market, syndicate and consummate the Debt Financing, and promptly provide Parent with any supplements to such information requested by Buyer pursuant to this clause (i);
(ii) participation by the senior management team of the Business in the marketing activities undertaken in connection with the marketing of the Debt Financing, including (A) assisting in the preparation of a customary bank book, confidential information memorandum, lender presentations, business projections and similar documents (B) a reasonable number of meetings with prospective lenders or debt investors, sessions with rating agencies for the Debt Financing and due diligence sessions and otherwise assisting in marketing efforts related to the Debt Financing including, without limitation, direct contact between senior management and representatives of the Business, on the one hand, and the financing sources, potential lenders and investors for the Debt Financing (including, without limitation, the Financing Sources), on the other hand; (C) providing to Buyer from time to time information regarding the Business reasonably requested by the financing sources (including, without limitation, the Financing Sources) and assisting with the preparation of appropriate and customary materials for rating agency presentations, offering and syndication documents (including prospectusesdocuments, lender presentations, private placement memoranda, lender bank information memoranda, syndication memoranda, ratings agency presentations (including executing customary authorization and investor representation letters authorizing the distribution of information relating to the Company and the Company Subsidiaries to prospective lenders or investors (provided that such presentations, bank information documents and memoranda shall include customary language with respect to the exculpation of the Company, each of the Company Subsidiaries and similar documentstheir respective Representatives and Affiliates from all liability in connection with the unauthorized use or misuse by the recipients thereof), ); (Div) taking take reasonable corporate actions, subject to and only effective upon the occurrence of the Closing, reasonably necessary to permit the consummation of the Debt Financing; (Ev) providing provide reasonable and customary authorization and/or representation letters assistance to assist Parent in connection with producing any pro forma financial statements and data regarding the distribution of Company and its Subsidiaries to the bank information memoranda contemplated extent required by the Debt Commitment Letter to prospective lenders and identifying any portion of the information therein that constitutes material non-public information regarding the Business, Seller or its SubsidiariesDefinitive Financing Agreements; provided that such letters and confirmations expressly state that (xvi) Seller shall not have any liability of any kind or nature resulting from the use of information in connection with their cooperation with arranging the Debt Financing and (y) the recipient of such letters of authorization shall be entitled to rely only on the representations and warranties contained assist in the Debt Financing Documents; (F) assisting with the preparation and negotiation of, and facilitating the execution and delivery by at the appropriate officers of any Purchased Company ofClosing, loan agreements, pledge and security documents and other definitive documents and/or certificates contemplated by the Debt Commitment Letter; (G) have a senior financial officer of any Purchased Company execute and deliver to the Financing Sources a solvency certificate in substantially the form attached to the Debt Commitment Letter; (H) cooperating in the replacement or backstop of any outstanding letters of credit issued for the account of the Business or any Purchased Subsidiaries or any joint venture thereof; (I) furnish Buyer and the Financing Sources at least five Business Days prior to the Closing Date with all documentation and other information agreements with respect to the Business Debt Financing (the “Definitive Financing Agreements”) (including schedules, annexes and any Purchased Subsidiaries required by the Debt Commitment Letter required under applicable “know your customer” and anti-money laundering laws, rules and regulationsexhibits thereto), including the U.S. PATRIOT Act to the extent requested not less than 10 days prior to the Closing Date; (J) consenting to the use of the logos of the Business so long as such use is not reasonably likely to harm or disparage the Business or its reputation, goodwill, products, services, offerings or intellectual property rights; (K) obtaining customary payoff letters guarantee and related collateral documents and instruments relating to the repayment of any exiting third party indebtedness for borrowed money required by the Debt Commitment Letter to as may be repaid on or coincidental with Closing; and (L) supplementing the information covered by this Section 5.22(a)(ii) on a current basis if such supplement is necessary to ensure that such information does not contain an untrue statement of a material fact or omit to state any material fact necessary to make such information not misleading; and
(iii) taking such actions as are reasonably requested by Buyer or its Financing Sources to facilitate the satisfaction on a timely basis of all Financing Conditions that are within its control.
(b) Seller will use its reasonable best effortsParent, customary closing certificates, perfection certificates, and will cause its Subsidiaries to use their reasonable best efforts, to provide to Buyer other customary documents and its Financing Sources such information instruments as may be necessary so that the information prepared in connection with the Debt Financing (including the marketing thereof) is complete and correct in all material respects and does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein, in the light of the circumstances under which such statements are made, not misleading.
(c) Seller shall have the right to review and comment on marketing materials related to the Debt Financing prior to the dissemination of such materials to potential lenders or other counterparties to any proposed financing transaction (or filing with any Governmental Authority); provided, that Seller shall communicate in writing their comments, if any, to Buyer and its counsel within a reasonable period of time under the circumstances and consistent with the time accorded to other participants who were asked to review and comment on such materials. Notwithstanding anything in this Section 5.22 to the contrary, neither Seller nor any of its Affiliates shall be required to (i) pay any commitment fee or similar fee, (ii) except in the case of the Purchased Companies following the Closing and the execution of authorization and representation letters referred to in Section 5.22(a)(ii), incur any Liability (or cause their respective directors, officers or employees to incur any Liability) with respect to the cooperation described in this Section 5.22, (iii) approve or enter into any agreement or binding commitment, (iv) provide (or to have any of their respective Representatives provide) any opinions or reliance letters, in each case, with respect to or in connection with the Financing or the Sale Leaseback Financing, or (v) execute or deliver, or take any corporate or other action to adopt or approve, any documents, agreement, certificate or instrument with respect to the Financing, including any pledge or security documents or closing certificates (other than (x) the execution of authorization and representation letters referred to in Section 5.22(a)(ii) and (y) to the extent necessary for the valid and enforceable execution of definitive Financing documentation, such cooperation as is reasonably necessary to facilitate the adoption of resolutions and consents, as applicable)requested by Parent; provided that the foregoing clause (y) shall not prevent any of the officers or directors effectiveness of any Purchased documentation executed by the Company who will remain officers and/or directors of a Purchased Company immediately following the Closing from executing documents, agreements, resolutions, certificates and instruments that do not become effective until the Closing.
(d) Buyer shall indemnify and hold harmless Seller and its Affiliates, and each of their respective directors, officers, employees, agents and other Representatives from and against any and all Liabilities suffered or incurred in connection with the arrangement of the Debt Financing or the Sale Leaseback Financing or any assistance or activities provided in connection therewith (other than historical information relating to the Business provided by Seller or its Affiliates in writing for the purpose of arranging the Debt Financing); provided, however, that the foregoing shall not apply in Seller’s or its Affiliates’ or other Representatives’ willful misconduct or gross negligence. Buyer shall promptly reimburse Seller and its Affiliates for all documented out-of-pocket third party costs incurred by Seller and its Affiliates in connection with such cooperation.
(e) Notwithstanding anything to the contrary herein, it is understood and agreed that the condition set forth in Section 8.02(a), as applied to Seller’s obligations under this Section 5.22, shall be deemed to be satisfied unless the Financing or the Sale Leaseback Financing has not been obtained as a result of Sellers’s breach of its obligations under this Section 5.22 to the extent such breach impairs or adversely affects the Financing or the Sale Leaseback Financing, including the execution, timing and pricing or cost thereof, in a material manner. Buyer acknowledges and agrees that obtaining the Financing and the Sale Leaseback Financing are not conditions to Closing. None of Seller or any of its Affiliates Subsidiaries shall have any obligations under this Section 5.22 following be subject to the consummation occurrence of the transactions contemplated hereby.Closing and any officer of the Company or any Subsidiaries executing documentation at Closing will have the opportunity to review any such documentation (with their advisors or other employees of the Company), prior to execution by such officer; and
Appears in 1 contract
Samples: Merger Agreement (Catalent, Inc.)
Debt Financing Cooperation. (a) Seller shallPrior to the Closing Date, ILG shall provide, and shall cause each of its subsidiaries to provide, and shall use all its reasonable best efforts to cause have each of its Affiliates and Representatives toits subsidiaries’ respective Representatives, provide such in each case, to use their respective reasonable best efforts to provide, in each case, to MVW, Volt Corporate Merger Sub and Volt LLC Merger Sub, at MVW’s sole expense, all cooperation reasonably requested by the MVW Entities and necessary in connection with the arrangement of the MVW Debt Financing as is reasonably requested by Buyer; provided that Seller and its Affiliates shall in no event be required to provide such assistance that shall unreasonably interfere with their respective business operations. Such assistance shall include, without limitation(solely for the purposes of this Section 5.15, the following, each of which term “MVW Debt Financing” shall be at Buyer’s request with reasonably practicable prior notice and at Buyer’s sole cost and expense:
deemed to include customary high-yield non-convertible debt securities offerings, term loans or revolving commitments to be issued or incurred in lieu of all or a portion of any bridge facility contemplated by the Debt Commitment Letter), which reasonable best efforts shall include (i) furnishing Buyer and its Financing Sources as promptly as practicable with (x) the financial statements and pro forma financial information referred to in the Commitment Letters (as in effect as of the date hereof) and (y) such other pertinent and customary financial and other information customarily delivered in connection with Buyer’s preparation of a customary bank book, confidential information memorandum, lender presentations, business projections and similar documents for financings that are similar to the Debt Financing and other marketing materials customarily used in connection with the syndication of financings that are similar to the Debt Financing reasonably requested by Buyer (including with respect to acquired entities) in order to market, syndicate and consummate the Debt Financing, and promptly provide Parent with any supplements to such information requested by Buyer pursuant to this clause (i);
(ii) participation by the senior management team of the Business in the marketing activities undertaken in connection with the marketing of the Debt Financing, including (A) assisting in the preparation of a customary bank book, confidential information memorandum, lender presentations, business projections and similar documents (B) a reasonable number of meetings with prospective lenders or debt investors, sessions with rating agencies for the Debt Financing and due diligence sessions and otherwise assisting in marketing efforts related to the Debt Financing including, without limitation, direct contact between senior management and representatives of the Business, on the one hand, and the financing sources, potential lenders and investors for the Debt Financing (including, without limitation, the Financing Sources), on the other hand; (C) providing to Buyer from time to time information regarding the Business reasonably requested by the financing sources (including, without limitation, the Financing Sources) and assisting with the preparation of appropriate (A) registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses and customary similar documents for any portion of the MVW Debt Financing and (B) materials for rating agency presentations, offering in each case as they relate to ILG and syndication documents its subsidiaries, (ii) executing customary authorization letters or management representation letters, as applicable, as they relate to ILG and its subsidiaries, (iii) assisting in promptly furnishing MVW, Volt Corporate Merger Sub and Volt LLC Merger Sub and the MVW Debt Financing Sources with the Required Information and such other customary financial and other pertinent information regarding ILG and its subsidiaries (including prospectusestheir businesses and operations) as may be reasonably requested in writing by MVW to permit MVW to prepare a customary preliminary offering memorandum, final offering memorandum, registration statement, preliminary private placement memorandamemorandum, lender and investor presentationsfinal private placement memorandum or marketing document for use in a customary “road show” relating to the MVW Debt Financing, bank it being understood that in no event shall ILG or its subsidiaries be required to provide (1) a description of all or any component of the MVW Debt Financing, including any “description of notes,” (2) risk factors relating to all or any component of the MVW Debt Financing, (3) separate subsidiary financial statements or any other information memoranda and similar documentsof the type required by Rule 3-05 (other than as specified in the definition of “Required Information”), Rule 3-09, Rule 3-10 or Rule 3-16 of Regulation S-X or “segment reporting”, (D4) taking reasonable Compensation Discussion and Analysis required by Item 402 of Regulation S-K, (5) pro forma financial statements, (6) information regarding any post-Closing or pro forma cost savings, synergies, capitalization, ownership or other post-Closing pro forma adjustments or (7) other information customarily excluded from an offering memorandum involving an offering of high-yield debt securities, (iv) assisting MVW, Volt Corporate Merger Sub and Volt LLC Merger Sub in obtaining corporate actions, subject to and only effective upon the occurrence of the Closing, reasonably necessary to permit the consummation of the Debt Financing; (E) providing customary authorization and/or representation letters facilities ratings from any rating agencies in connection with the distribution of the bank information memoranda contemplated by the MVW Debt Commitment Letter to prospective lenders and Financing, (v) upon reasonable request, identifying any portion of the information therein that constitutes material non-public information regarding contained in the Businessrelevant marketing materials relating to ILG and its subsidiaries and complying with Regulation FD to the extent applicable to such material non-public information, Seller (vi) cooperating with the marketing efforts of MVW, Volt Corporate Merger Sub and Volt LLC Merger Sub and the MVW Debt Financing Sources for any portion of the MVW Debt Financing as reasonably requested by MVW by having members of senior management of ILG participate, upon reasonable prior notice, in a reasonable and limited number of due diligence sessions and drafting sessions in connection with the MVW Debt Financing at times and locations to be mutually agreed, (vii) cooperating with MVW, Volt Corporate Merger Sub or Volt LLC Merger Sub’s legal counsel in connection with any legal opinions that such legal counsel may be required to deliver in connection with the MVW Debt Financing, (viii) executing and delivering as of (but not before and not to be effective until) the Closing any pledge and security documents, other definitive financing documents, or other related certificates or documents as may be reasonably requested by MVW, Volt Corporate Merger Sub or Volt LLC Merger Sub and otherwise facilitating the pledging of collateral (including cooperation in connection with the pay-off of borrowed indebtedness and the release of related Liens and termination of security interests (including delivering prepayment or termination notices as required by the terms of any existing indebtedness and delivering termination agreements or UCC-3 or equivalent financing statements or notices), (ix) using reasonable best efforts to cause it or its Subsidiaries; provided that such subsidiaries’ independent auditors to cooperate in connection with the MVW Debt Financing, including by providing “customary” comfort letters (including as to customary “negative assurances” comfort) and confirmations expressly state that any consents required to include any financials contemplated in any offering documents and (x) Seller shall not have any liability of any kind or nature resulting from the use of information in connection with their cooperation with arranging the Debt Financing and (y) the recipient of such letters of authorization shall be entitled to rely only on the representations and warranties contained in the Debt Financing Documents; (F) assisting with the preparation and negotiation of, and facilitating the execution and delivery by the appropriate officers of any Purchased Company of, loan agreements, pledge and security documents and other definitive documents and/or certificates contemplated by the Debt Commitment Letter; (G) have a senior financial officer of any Purchased Company execute and deliver to the Financing Sources a solvency certificate in substantially the form attached to the Debt Commitment Letter; (H) cooperating in the replacement or backstop of any outstanding letters of credit issued for the account of the Business or any Purchased Subsidiaries or any joint venture thereof; (I) furnish Buyer and the Financing Sources providing at least five Business Days (5) business days prior to the Closing Date with Date, all documentation and other information with respect to the Business and any Purchased Subsidiaries required by the Debt Commitment Letter required under applicable “know your customer” and anti-money laundering laws, rules and regulationsLaws, including the U.S. USA PATRIOT Act Act, to the extent requested not less than 10 in writing at least nine (9) business days prior to the Closing Date; provided that ILG shall not be required to provide, or cause its subsidiaries to provide, cooperation under this Section 5.15 that: (JA) consenting to unreasonably interferes with the use ongoing business of the logos of the Business so long as such use is not reasonably likely to harm or disparage the Business ILG or its reputation, goodwill, products, services, offerings subsidiaries or intellectual creates an unreasonable risk of damage or destruction to any property rights; or assets of ILG or any of its subsidiaries (K) obtaining customary payoff letters and related documents and instruments relating to provided that the repayment of any exiting third party indebtedness for borrowed money required by the Debt Commitment Letter to be repaid on or coincidental with Closing; and (L) supplementing the information covered cooperation contemplated by this Section 5.22(a)(ii5.15 shall not by its terms be deemed to unreasonably interfere with such business); (B) on causes any covenant, representation or warranty in this Agreement to be breached in a current basis if manner that ILG would cause any closing condition set forth in Section 6.1 or Section 6.3 to fail to be satisfied or otherwise causes the breach of this Agreement (other than those conditions that by their nature are to be satisfied at the Closing); (C) requires ILG or its subsidiaries to provide or enter into any security or guarantee agreements, or otherwise to incur any liability (including any commitment fees and expense reimbursement) in connection with the MVW Debt Financing (other than the authorization letters and management representation letters referenced above) prior to, or that are not conditioned upon, the Closing or are not otherwise promptly reimbursed or indemnified in accordance with the terms hereof; (D) requires ILG or its subsidiaries or their respective directors, officers, managers or employees to execute, deliver or enter into, or perform any agreement, document, certificate or instrument with respect to the MVW Debt Financing (other than (i) such supplement is customary agreements, documents, certificates or instruments necessary to ensure effect the MVW Debt Financing as will not take effect prior to the Closing and that such information does not contain an untrue statement are executed by those directors, officers, managers or employees that will act in a similar capacity after Closing) and (ii) with respect to the authorization letters and management representation letters referenced above) or adopt resolutions approving the agreements, documents, instruments and other actions pursuant to which the MVW Debt Financing is obtained; (E) requires ILG, its subsidiaries or their legal counsel to give any legal opinion or other opinion of a material fact or omit to state any material fact necessary to make such information not misleadingcounsel; and
(iiiF) taking such actions as are reasonably requested by Buyer requires ILG or its subsidiaries to take any action that is prohibited or restricted by, or will conflict with or violate or breach, its organizational documents, any Applicable Laws or any agreement to which ILG or any of its subsidiaries is a party; or (G) requires ILG to provide any information that is subject to legal privilege. In no event shall ILG or its subsidiaries be required to pay any commitment or other fee or give an indemnity or incur any liability (including due to any act or omission by ILG, its subsidiaries or any of their respective affiliates or Representatives) or expense (including legal and accounting expenses) in connection with assisting MVW, Volt Corporate Merger Sub and Volt LLC Merger Sub in arranging the MVW Debt Financing Sources or as a result of any information provided by ILG, its subsidiaries or any of their respective affiliates or Representatives in connection with the MVW Debt Financing to facilitate the satisfaction extent such expenses are not subject to reimbursement in accordance with the terms hereof or such indemnity or liability is not otherwise subject to indemnification pursuant to the terms of this Agreement. MVW, Volt Corporate Merger Sub and Volt LLC Merger Sub agree that any information regarding ILG or any of its subsidiaries or affiliates contained in any presentations, offering documents, teasers or other materials in connection with the MVW Debt Financing shall be subject to the prior review and approval of ILG (which approval shall not be unreasonably withheld or delayed). From the respective dates on a timely basis of all Financing Conditions that are within its control.
(b) Seller which MVW receives the Required Information until the Closing, ILG will use its reasonable best efforts, and will cause each of its Subsidiaries subsidiaries to use their its reasonable best efforts, efforts to provide to Buyer and its Financing Sources such information update any Required Information provided by them or on their behalf as may be necessary so that the information prepared such Required Information is Compliant. The MVW Entities will promptly reimburse ILG and its subsidiaries for all out-of-pocket fees and expenses (including legal fees and expenses) incurred by them in complying with their respective covenants pursuant to this Section 5.15(a), except in connection with the Debt Financing (including the marketing thereof) is complete and correct in all material respects and does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained thereinordinary course preparation of, in the light of the circumstances under which such statements are made, not misleading.
(c) Seller shall have the right to review and comment on marketing materials related to the Debt Financing prior to the dissemination of such materials to potential lenders or other counterparties to any proposed financing transaction (or filing with any Governmental Authority); provided, that Seller shall communicate in writing their comments, if any, to Buyer and its counsel within a reasonable period of time under the circumstances and consistent with the time accorded to other participants who were asked to review and comment on such materials. Notwithstanding anything in this Section 5.22 to the contrary, neither Seller nor any of its Affiliates shall be required to (i) pay any commitment fee or similar fee, (ii) except in the case of the Purchased Companies following the Closing and the execution of authorization and representation letters referred to in Section 5.22(a)(ii), incur any Liability (or cause their respective directors, officers or employees to incur any Liability) with respect to the cooperation described in this Section 5.22, (iii) approve or enter into any agreement or binding commitment, (iv) provide (or to have any of their respective Representatives provide) any opinions or reliance letters, in each case, with respect to or in connection with the Financing or the Sale Leaseback Financing, or (v) execute or deliver, or take any corporate or other action to adopt or approveSEC of, any documentsfinancial information, agreementregistration statements, certificate or instrument with respect to the Financingprospectuses, reports, schedules, forms, statements, certifications and other documents (including any pledge or security documents or closing certificates (exhibits and all other than (x) the execution of authorization and representation letters referred to in Section 5.22(a)(ii) and (y) to the extent necessary for the valid and enforceable execution of definitive Financing documentation, such cooperation as is reasonably necessary to facilitate the adoption of resolutions and consents, as applicableinformation incorporated therein); provided that the foregoing clause (y) shall not prevent any of the officers or directors of any Purchased Company who . The MVW Entities will remain officers and/or directors of a Purchased Company immediately following the Closing from executing documents, agreements, resolutions, certificates and instruments that do not become effective until the Closing.
(d) Buyer shall indemnify and hold harmless Seller ILG and its Affiliates, subsidiaries and each of their respective directors, officers, employees, agents employees and other Representatives representatives from and against any and all Liabilities liabilities or losses, damages, claims, interest, costs, expenses, awards, judgments, penalties and amounts paid in settlement suffered or incurred incurred, directly or indirectly, by them in connection with the arrangement of the any MVW Debt Financing or the Sale Leaseback Financing or and any assistance or activities provided information utilized in connection therewith (other than historical arising from information relating to the Business provided by Seller or its Affiliates in writing by ILG expressly for the purpose of arranging the use in connection with such MVW Debt Financing); provided, howeverexcept in the event (and solely to the extent that) such loss, that the foregoing shall not apply in Seller’s or its Affiliates’ damage or other Representatives’ amount is found by a court of competent jurisdiction to have resulted from the fraud, intentional misrepresentation, intentional breach, bad faith, willful misconduct or gross negligence. Buyer shall promptly reimburse Seller negligence of ILG, its subsidiaries and their respective directors, officers, employees and other representatives.
(b) ILG hereby consents to the reasonable use of the trademarks, service marks and corporate logos owned by ILG and its Affiliates for all documented out-of-pocket third party costs incurred by Seller and its Affiliates subsidiaries in connection with the MVW Debt Financing; provided that such cooperation.
(e) Notwithstanding anything to the contrary hereintrademarks, it is understood service marks and agreed that the condition set forth in Section 8.02(a), as applied to Seller’s obligations under this Section 5.22, shall be deemed to be satisfied unless the Financing or the Sale Leaseback Financing has not been obtained as a result of Sellers’s breach of its obligations under this Section 5.22 to the extent such breach impairs or adversely affects the Financing or the Sale Leaseback Financing, including the execution, timing and pricing or cost thereof, corporate logos are used solely in a material manner. Buyer acknowledges and agrees manner that obtaining the Financing and the Sale Leaseback Financing are is not conditions intended to Closing. None of Seller or reasonably likely to harm or disparage ILG or any of its Affiliates shall have subsidiaries or the reputation or goodwill of ILG or any obligations under this Section 5.22 following the consummation of the transactions contemplated herebyits subsidiaries.
Appears in 1 contract
Samples: Merger Agreement (ILG, Inc.)
Debt Financing Cooperation. (a) Seller Sellers shall, and shall cause the Companies and each of the Subsidiaries to, use all its commercially reasonable best efforts to cause its Affiliates and Representatives their legal and accounting representatives to, provide such to Buyers all cooperation that is customary and reasonably requested by Buyers to assist Buyers in arranging, obtaining and syndicating any debt financing in connection with the arrangement of transactions contemplated by this Agreement (the “Debt Financing as is reasonably requested by Buyer; provided that Seller and its Affiliates shall in no event be required to provide such assistance that shall unreasonably interfere with their respective business operationsFinancing”). Such assistance cooperation shall include, without limitation, the following, each of which shall be at Buyer’s request with reasonably practicable prior notice and at Buyer’s sole cost and expense:
(i) furnishing Buyer and its Financing Sources as promptly as practicable reasonably cooperating with (x) the financial statements and pro forma financial information referred to in the Commitment Letters (as in effect as customary marketing efforts of the date hereof) and (y) such other pertinent and customary financial and other information customarily delivered in connection with Buyer’s preparation of a customary bank book, confidential information memorandum, lender presentations, business projections and similar documents Buyers for financings that are similar to the Debt Financing and other marketing materials customarily used in connection with the syndication of financings that are similar to the Debt Financing reasonably requested by Buyer (including with respect to acquired entities) in order to market, syndicate and consummate the Debt Financing, and promptly provide Parent with all or any supplements to such information requested by Buyer pursuant to this clause (i);
(ii) participation by the senior management team of the Business in the marketing activities undertaken in connection with the marketing portion of the Debt Financing, including (A) assisting causing the management team, with appropriate seniority and expertise, including senior executive officers, external auditors and advisors, in each case of the Companies and the Subsidiaries, to reasonably assist in preparation of a customary bank book, confidential information memorandum, lender presentations, business projections for and similar documents (B) to participate in a reasonable number of meetings with prospective lenders or debt investorsmeetings, presentations, road shows, due diligence sessions, drafting sessions and sessions with proposed lenders, underwriters, initial purchasers, placement agents or rating agencies for the Debt Financing and due diligence sessions and otherwise assisting in marketing efforts related to the Debt Financing including, without limitation, direct contact between senior management and representatives of the Business, on the one hand, and the financing sources, potential lenders and investors for the Debt Financing agencies;
(including, without limitation, the Financing Sources), on the other hand; (Cii) providing to Buyer from time to time information regarding the Business reasonably requested by the financing sources (including, without limitation, the Financing Sources) reasonable and assisting timely assistance with the preparation of appropriate and customary materials for rating agency presentations, road show materials, bank information memoranda, prospectuses and bank syndication materials, offering and syndication documents (including prospectusesdocuments, private placement memoranda, lender and investor presentations, bank information memoranda and similar documents), (D) taking reasonable corporate actions, subject to and only effective upon the occurrence of the Closing, reasonably necessary to permit the consummation of the Debt Financing; (E) providing customary authorization and/or representation letters documents customarily required in connection with the distribution of Debt Financing, including the bank marketing and syndication thereof;
(iii) furnishing Buyers and their Debt Financing Source Parties, promptly following Buyers’ reasonable request, with all customary information memoranda contemplated by relating to the Debt Commitment Letter to prospective lenders Companies and identifying any portion of the information therein that constitutes material non-public information regarding the Business, Seller or its Subsidiaries; provided that such letters and confirmations expressly state that (x) Seller shall not have any liability of any kind or nature resulting from the use of information Subsidiaries reasonably required in connection with their cooperation with arranging the Debt Financing Financing, and using reasonable best efforts to assist Buyers with Buyers’ preparation of pro forma financial information and projections;
(yiv) the recipient of such letters of authorization shall be entitled to rely only on the representations furnishing Buyers and warranties contained in the their Debt Financing Documents; (F) assisting with the preparation and negotiation ofSource Parties promptly, and facilitating the execution and delivery by the appropriate officers of in any Purchased Company of, loan agreements, pledge and security documents and other definitive documents and/or certificates contemplated by the Debt Commitment Letter; (G) have a senior financial officer of any Purchased Company execute and deliver to the Financing Sources a solvency certificate in substantially the form attached to the Debt Commitment Letter; (H) cooperating in the replacement or backstop of any outstanding letters of credit issued for the account of the Business or any Purchased Subsidiaries or any joint venture thereof; (I) furnish Buyer and the Financing Sources event at least five Business Days prior to the Closing Date (to the extent requested within ten (10) Business Days prior to the Closing Date), with all customary documentation and other information with respect to the Business and any Purchased Subsidiaries required by the Debt Commitment Letter required under applicable “know your customer” and anti-money laundering laws, rules and regulations, including the U.S. PATRIOT Act;
(v) providing reasonable authorization letters authorizing the distribution of information to prospective lenders;
(vi) using commercially reasonable efforts to cause the Companies’ independent accountants to provide assistance and cooperation to Buyers, including using commercially reasonable efforts to cause their participation in drafting sessions and accounting due diligence sessions, using reasonable best efforts to cause them to agree that Buyers may use their audit reports on the consolidated financial statements of the Companies in any materials relating to the Debt Financing or in connection with any filings made with the Securities and Exchange Commission or pursuant to Applicable Law, and using commercially reasonable efforts to cause them to provide any comfort letters reasonably necessary and reasonably requested by Buyers in connection with any debt capital markets transaction comprising a part of the Debt Financing, in each case, on customary terms and consistent with customary practice; and
(vii) as promptly as practicable on an ongoing basis, and in any event by the Closing Date, (A) furnishing Buyers and their Debt Financing Source Parties with (1) the Financial Statements and (2) unaudited consolidated financial statements of the Companies and the Subsidiaries for each subsequent fiscal quarter ended at least 40 days before the Closing Date and for the corresponding period in the prior fiscal year; and (3) all other financial statements, financial data, audit reports and other information regarding the Companies and the Subsidiaries as are reasonably necessary to prepare pro forma financial statements of Buyers that shall meet the requirements of Regulation S-X and Regulation S-K under the Securities Act to the extent applicable with respect to a registration statement for Buyers’ securities under the Securities Act on Form S-1 for the most recent period for which financial statements are required to be delivered pursuant to clause (A)(1) and (A)(2), and (B) using reasonable best efforts to furnish Buyers and their Debt Financing Source Parties (1) all other financial statements, financial data, audit reports and other information (other than information described in clause (A)) regarding the Companies and the Subsidiaries of the type required by Form S-1, Regulation S-X and Regulation S-K under the Securities Act in connection with a registered public offering of debt securities of Buyers or as otherwise reasonably necessary to permit the Companies’ independent accountants to issue “comfort letters” to Buyers’ Debt Financing Source Parties (which accountants have confirmed they are prepared to issue), including as to customary negative assurances and change period in order to consummate any debt or equity capital markets transaction comprising a part of the Debt Financing and (2) such other financial and other information relating to the Companies and the Subsidiaries customary or reasonably necessary for the completion of such Debt Financing to the extent reasonably requested by Buyers to assist in preparation of customary offering or confidential information memoranda or otherwise to be used in connection with the marketing or consummation of the Debt Financing.
(b) Notwithstanding anything to the contrary contained in this Section 5.16: (i) Sellers, the Companies and the Subsidiaries shall not less be required in connection with any Debt Financing to (A) pay any commitment or other fees or reimburse any expenses prior to the Closing for which it has not received prior reimbursement or is not otherwise indemnified by or on behalf of Buyers, (B) take any action that would unreasonably interfere with the ongoing business or operations of Sellers, the Companies and the Subsidiaries, (C) require Sellers, the Companies or any of the Subsidiaries to take any action that conflicts with, or results in any violation or breach of, or default (with or without notice or lapse of time, or both) under, the Governing Documents of Sellers, the Companies or the Subsidiaries, any Applicable Laws, or any Contract, (D) provide any information subject to attorney-client privilege, attorney work product protection or other legal privilege, or (E) enter into or approve any agreement or other documentation (other than 10 days delivery of customary authorization and representation letters in connection with the Debt Financing), or agree to any change or modification of any existing agreement or other documentation that would be effective prior to the Closing Date; , and (Jii) consenting no action, liability or obligation of Sellers, the Companies or the Subsidiaries pursuant to any certificate, agreement, arrangement, document or instrument relating to the Debt Financing (other than customary authorization and representation letters) shall be effective until (or not be contingent upon) the Closing.
(c) Buyers shall (i) promptly upon request by Sellers or the Companies, reimburse Sellers or the Companies for all of their reasonable and documented out-of-pocket fees and expenses (including reasonable and documented out-of-pocket attorneys’ fees, but excluding the costs of Sellers or the Companies’ preparation of their annual and quarterly financial statements) incurred by Sellers, the Companies and the Subsidiaries in connection with any cooperation contemplated by this Section 5.16(c) and, to the extent Buyers do not reimburse Sellers or the applicable Subsidiary for any such fees and expenses on or prior to the date of the Pre-Closing Statement, the Companies and the Subsidiaries shall be deemed to have a current asset on the Pre-Closing Statement in the amount of such unreimbursed fees and expenses, and (ii) indemnify and hold harmless Sellers, the Companies and the Subsidiaries against any claim, loss, damage, injury, liability, judgment, award, penalty, fine, cost, settlement payment or expense incurred in connection with, or as a result of, the arrangement of the Debt Financing or their cooperation therewith and any information (other than information provided in writing by Sellers, the Companies or the Subsidiaries) used in connection therewith. Notwithstanding anything to the contrary in this Agreement, the condition set forth in Section 6.2, as it applies to Sellers’ obligations under this Section 5.16, shall be deemed satisfied unless Sellers have willfully and materially breached its obligations under this Section 5.16.
(d) Sellers hereby consent to the use of the trademarks and logos of the Business so long as Companies and the Subsidiaries in connection with the Debt Financing; provided, that such use trademarks and logos are used solely in a manner that is not intended to or reasonably likely to harm or disparage the Business Companies or its reputation, goodwill, products, services, offerings or intellectual property rights; (K) obtaining customary payoff letters and related documents and instruments relating to the repayment of any exiting third party indebtedness for borrowed money required by the Debt Commitment Letter to be repaid on or coincidental with Closing; and (L) supplementing the information covered by this Section 5.22(a)(ii) on a current basis if such supplement is necessary to ensure that such information does not contain an untrue statement of a material fact or omit to state any material fact necessary to make such information not misleading; and
(iii) taking such actions as are reasonably requested by Buyer or its Financing Sources to facilitate the satisfaction on a timely basis of all Financing Conditions that are within its control.
(b) Seller will use its reasonable best efforts, and will cause its Subsidiaries to use their reasonable best efforts, to provide to Buyer and its Financing Sources such information as may be necessary so that the information prepared in connection with the Debt Financing (including the marketing thereof) is complete and correct in all material respects and does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein, in the light of the circumstances under which such statements are made, not misleading.
(c) Seller shall have the right to review and comment on marketing materials related to the Debt Financing prior to the dissemination of such materials to potential lenders or other counterparties to any proposed financing transaction (or filing with any Governmental Authority); provided, that Seller shall communicate in writing their comments, if any, to Buyer and its counsel within a reasonable period of time under the circumstances and consistent with the time accorded to other participants who were asked to review and comment on such materials. Notwithstanding anything in this Section 5.22 to the contrary, neither Seller nor any of its Affiliates shall be required to (i) pay any commitment fee or similar fee, (ii) except in the case of the Purchased Companies following the Closing and the execution of authorization and representation letters referred to in Section 5.22(a)(ii), incur any Liability (or cause their respective directors, officers or employees to incur any Liability) with respect to the cooperation described in this Section 5.22, (iii) approve or enter into any agreement or binding commitment, (iv) provide (or to have any of their respective Representatives provide) any opinions or reliance letters, in each case, with respect to or in connection with the Financing or the Sale Leaseback Financing, or (v) execute or deliver, or take any corporate or other action to adopt or approve, any documents, agreement, certificate or instrument with respect to the Financing, including any pledge or security documents or closing certificates (other than (x) the execution of authorization and representation letters referred to in Section 5.22(a)(ii) and (y) to the extent necessary for the valid and enforceable execution of definitive Financing documentation, such cooperation as is reasonably necessary to facilitate the adoption of resolutions and consents, as applicable); provided that the foregoing clause (y) shall not prevent any of the officers Subsidiaries or directors of any Purchased Company who will remain officers and/or directors of a Purchased Company immediately following the Closing from executing documents, agreements, resolutions, certificates and instruments that do not become effective until the Closing.
(d) Buyer shall indemnify and hold harmless Seller and its Affiliates, and each of their respective directors, officers, employees, agents and other Representatives from and against any and all Liabilities suffered reputation or incurred in connection with the arrangement goodwill of the Debt Financing or the Sale Leaseback Financing or any assistance or activities provided in connection therewith (other than historical information relating to the Business provided by Seller or its Affiliates in writing for the purpose of arranging the Debt Financing); provided, however, that the foregoing shall not apply in Seller’s or its Affiliates’ or other Representatives’ willful misconduct or gross negligence. Buyer shall promptly reimburse Seller and its Affiliates for all documented out-of-pocket third party costs incurred by Seller and its Affiliates in connection with such cooperation.
(e) Notwithstanding anything to the contrary herein, it is understood and agreed that the condition set forth in Section 8.02(a), as applied to Seller’s obligations under this Section 5.22, shall be deemed to be satisfied unless the Financing or the Sale Leaseback Financing has not been obtained as a result of Sellers’s breach of its obligations under this Section 5.22 to the extent such breach impairs or adversely affects the Financing or the Sale Leaseback Financing, including the execution, timing and pricing or cost thereof, in a material manner. Buyer acknowledges and agrees that obtaining the Financing and the Sale Leaseback Financing are not conditions to Closing. None of Seller Companies or any of its Affiliates shall have any obligations under this Section 5.22 following the consummation of the transactions contemplated herebySubsidiaries.
Appears in 1 contract
Debt Financing Cooperation. (a) Seller From the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Section 9.01, the Company shall, and shall use all reasonable best efforts to cause its Affiliates Subsidiaries and its and their respective Representatives to, use commercially reasonable efforts to provide such cooperation in connection with the arrangement of the Debt Financing as is reasonably requested by BuyerParent and is customarily provided for issuers in financings of the type contemplated by the Debt Commitment Letter; provided that Seller and its Affiliates the Company shall in no event be required to provide (or cause its Subsidiaries or its and their respective Representatives to provide) such assistance that shall unreasonably interfere with their respective its or its Subsidiaries’ business operations. Such assistance shall include, without limitation, include using commercially reasonable efforts to do the following, each of which shall be at BuyerParent’s request with reasonably practicable reasonable prior notice and at BuyerParent’s sole cost and expense:expense (other than costs and expenses related to the provision of Required Information pursuant to clause (i) below, which shall be borne by the Company):
(i) furnishing Buyer and its Financing Sources as promptly as practicable with (x) practicable, furnish, or cause to be furnished to, Parent the financial statements and pro forma financial information referred to in the Commitment Letters (as in effect as of the date hereof) and (y) such other pertinent and customary financial and other information customarily delivered in connection with Buyer’s preparation of a customary bank book, confidential information memorandum, lender presentations, business projections and similar documents for financings that are similar to the Debt Financing and other marketing materials customarily used in connection with the syndication of financings that are similar to the Debt Financing reasonably requested by Buyer (including with respect to acquired entities) in order to market, syndicate and consummate the Debt Financing, and promptly provide Parent with any supplements to such information requested by Buyer pursuant to this clause (i)Required Information;
(ii) participation by the participate (and cause appropriate members of senior management team of the Business Company to participate) in the marketing activities undertaken in connection with the marketing of the Debt Financing, including (A) assisting in the preparation of a customary bank book, confidential information memorandum, lender presentations, business projections and similar documents (B) a reasonable number of meetings (including customary one-on-one meetings and calls that are requested in advance with or by the parties acting as lead arrangers or agents for, and prospective lenders or debt investorsof, the Debt Financing), drafting sessions, conference calls, presentations, road shows, due diligence sessions, sessions with rating agencies for the Debt Financing and due diligence sessions and or other customary financing activities, in each case which shall be telephonic or held by videoconference (unless otherwise assisting in marketing efforts related to the Debt Financing including, without limitation, direct contact between senior management and representatives of the Business, on the one hand, and the financing sources, potential lenders and investors for the Debt Financing (including, without limitation, the Financing Sources), on the other hand; (C) providing to Buyer from time to time information regarding the Business reasonably requested by the financing sources (including, without limitation, the Financing Sourcesagreed) and assisting at reasonable times and with reasonable advance notice;
(iii) solely with respect to financial information and data derived from the Company’s historical books and records, provide reasonable and customary assistance to Parent with the preparation of appropriate pro forma financial information and customary materials for rating agency presentations, offering and syndication documents (including prospectuses, private placement memoranda, lender and investor presentations, bank information memoranda and similar documents), (D) taking reasonable corporate actions, subject pro forma financial statements to and only effective upon the occurrence of the Closing, extent reasonably necessary to permit the consummation of the Debt Financing; (E) providing customary authorization and/or representation letters in connection with the distribution of the bank information memoranda contemplated requested by the Debt Commitment Letter to prospective lenders and identifying any portion of the information therein that constitutes material non-public information regarding the Business, Seller Parent or its Subsidiaries; provided that such letters and confirmations expressly state that (x) Seller shall not have any liability of any kind or nature resulting from the use of information in connection with their cooperation with arranging the Debt Financing and (y) the recipient of such letters of authorization shall be entitled to rely only on the representations and warranties contained in the Debt Financing Documents; (F) assisting with the preparation and negotiation of, and facilitating the execution and delivery by the appropriate officers of any Purchased Company of, loan agreements, pledge and security documents and other definitive documents and/or certificates contemplated by the Debt Commitment Letter; (G) have a senior financial officer of any Purchased Company execute and deliver to the Financing Sources a solvency certificate and customary to be included in substantially the form attached to the Debt Commitment Letter; (H) cooperating in the replacement any marketing materials or backstop of any outstanding letters of credit issued for the account Offering Documents or of the Business or any Purchased Subsidiaries or any joint venture thereof; (I) furnish Buyer and the Financing Sources at least five Business Days prior to the Closing Date with all documentation and other information with respect to the Business and any Purchased Subsidiaries type required by the Debt Commitment Letter required under applicable “know your customer” (provided that the Company shall not be responsible for the preparation of any pro forma financial statements or pro forma adjustments thereto);
(iv) provide reasonable and anti-money laundering lawscustomary assistance to Parent and the Financing Sources in the preparation of customary Offering Documents, rules syndication memoranda, ratings agency presentations and regulationsother marketing material for the Debt Financing, including the U.S. PATRIOT Act execution and delivery of customary authorization letters related thereto (including customary representations with respect to the absence of material non-public information in the public-side versions of documents and the absence of material misstatements or omissions) and customary financial officer and similar certificates with respect to certain financial information of the Company in the Offering Documents not otherwise covered by a “comfort” letter to the extent reasonably requested not less than 10 days prior by the underwriters or initial purchasers of such offering and, at the reasonable request of Parent;
(v) cooperate with Parent to obtain customary corporate and facilities credit ratings;
(vi) cooperate with the Financing Sources’ due diligence, to the Closing Date; extent customary and reasonable;
(Jvii) consenting to assist in the use preparation and negotiation, and in the execution and delivery of at Closing, of the logos Debt Financing Documents, including assistance with the preparation of the Business so long as such use is not reasonably likely to harm schedules and exhibits thereto or disparage the Business or its reputation, goodwill, products, services, offerings or intellectual property rights; (K) obtaining other customary payoff letters and related documents and instruments informational requirements relating to the repayment Company and its Subsidiaries as are requested by Parent, provide the Financing Deliverables (as and when required in the definition thereof) and other customary documents as may be reasonably requested by Parent or the Financing Sources, and otherwise assist in facilitating the creation and perfection of any exiting third party indebtedness for borrowed money required the security interests in the collateral contemplated by the Debt Commitment Letter Financing, in each case, to be repaid on or coincidental with Closing; and (L) supplementing the information covered by this Section 5.22(a)(ii) on a current basis if such supplement is necessary to ensure that such information does not contain an untrue statement of a material fact or omit to state any material fact necessary to make such information not misleading; and
(iii) taking such actions as are reasonably requested by Buyer or its Financing Sources extent required to facilitate the satisfaction on a timely basis of all the Financing Conditions set forth in the Debt Commitment Letter that are within its control, provided that no such document or certificate or the creation or perfection of any security interest in any of the equity of or assets owned by the Company and its Subsidiaries shall be effective prior to Effective Time; facilitate customary cooperation and assistance of the Company’s independent auditors to (a) provide customary “comfort” letters (including “negative assurance” and change period comfort), (b) deliver consents and (c) attend accounting diligence sessions; and
(viii) cooperate with Parent, and take all corporate, limited liability company, partnership or other similar actions reasonably requested by Parent to permit the consummation of the Debt Financing, provided that no such actions shall be required to be effective prior to the Closing; provided that (w) nothing in this Section 7.12 shall require any such action to the extent it (1) would unreasonably interfere with the business or operations of the Acquired Companies or require the Acquired Companies to agree to pay any fees, reimburse any expenses or incur any liability or obligation (including any indemnification obligation) in any case prior to the Closing, other than fees, expenses, liabilities and obligations that are subject to reimbursement and/or indemnification pursuant to Section 7.12(b) below, (2) would require the Company, any Company Party or their respective Representatives or financing sources to execute, deliver or enter into, or perform any Debt Financing Document, the effectiveness of which is not contingent on the occurrence of the Closing (other than customary authorization letters and customary representation letters), (3) cause any director, manager, officer or employee of any Acquired Company to incur any actual personal liability or (4) would require the delivery of any legal opinions, (x) none of the board of directors (or other similar governing body) of any Acquired Company to adopt resolutions approving the Debt Financing Documents, in each case, the effectiveness of which is not contingent on the occurrence of the Closing (other than customary authorization letters and customary representation letters), (y) the Company’s obligations under this Section 7.12 shall be subject to the Financing Related Persons being bound by confidentiality agreements in accordance with customary market practice, and (z) none of the Acquired Companies shall be required to provide any information to the extent it (1) would violate Applicable Law or the provisions of any material Contract (including any confidentiality agreement or similar agreement or arrangement) to which any Acquired Company is a party or any organizational document applicable to any Acquired Company, (2) would jeopardize any attorney-client or other legal privilege, (3) would violate any applicable confidentiality obligation of any Acquired Company in effect as of the date of this Agreement so long as that the Company provides Parent written notice of any information so withheld and reasonably cooperates with Parent in seeking to allow disclosure of such information in a manner that is not reasonably likely to cause such violation of Applicable Law or Contract, jeopardize such attorney-client or other legal privilege or violate any such confidentiality obligation or (4) would cause the Company to breach this Agreement.
(b) Seller will use its reasonable best efforts, and will cause its Subsidiaries to use their reasonable best efforts, to provide to Buyer and its Financing Sources such information as may be necessary so that the information prepared in connection with the Debt Financing (including the marketing thereof) is complete and correct in all material respects and does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein, in the light of the circumstances under which such statements are made, not misleading.
(c) Seller The Company shall have the right to review and comment on marketing materials related to used in connection with the arrangement of the Debt Financing prior to the dissemination of such materials to potential lenders or other counterparties to any proposed financing transaction (or filing with any Governmental Authority); provided, that Seller the Company shall communicate in writing their its comments, if any, to Buyer Parent and its counsel within a reasonable period of time under the circumstances and consistent with the time accorded to other participants who were asked to review and comment on such marketing materials. Notwithstanding anything in this Section 5.22 Other than pursuant to customary authorization letters and customary representation letters, the contrary, neither Seller nor any of its Affiliates Company shall not be required to (i) pay agree to any commitment fee or similar fee, (ii) except in contractual obligation relating to the case of the Purchased Companies following Debt Financing that is not conditioned upon the Closing and that does not terminate without liability to the execution Company and its Affiliates upon the termination of authorization and representation letters referred this Agreement. The Company shall not be required to in Section 5.22(a)(ii), incur any Liability (deliver or cause their respective directors, officers or employees to incur the delivery of any Liability) with respect to the cooperation described in this Section 5.22, (iii) approve or enter into any agreement or binding commitment, (iv) provide (or to have any of their respective Representatives provide) any legal opinions or reliance letters, in each case, with respect to or in connection with the Financing or the Sale Leaseback Debt Financing, or (v) execute or deliver, or take any corporate or other action to adopt or approve, any documents, agreement, certificate or instrument with respect to the Financing, including any pledge or security documents or closing certificates (other than (x) the execution of authorization and representation letters referred to in Section 5.22(a)(ii) and (y) to the extent necessary for the valid and enforceable execution of definitive Financing documentation, such cooperation as is reasonably necessary to facilitate the adoption of resolutions and consents, as applicable); provided that the foregoing clause (y) shall not prevent any of the officers or directors of any Purchased Company who will remain officers and/or directors of a Purchased Company immediately following the Closing from executing documents, agreements, resolutions, certificates and instruments that do not become effective until the Closing.
(dc) Buyer Parent shall indemnify and hold harmless Seller and its Affiliatesthe Acquired Companies, and each of their respective directors, officers, employees, agents and other Representatives Representatives, from and against any and all Liabilities liabilities, costs or expenses suffered or incurred in connection with the arrangement of the Debt Financing or the Sale Leaseback Financing or any information, assistance or activities provided in connection therewith therewith, except to the extent arising from (other than i) any material inaccuracy of any historical information relating to the Business provided by Seller or its Affiliates furnished in writing for by or on behalf of the purpose of arranging Acquired Companies, including financial statements or (ii) the Debt Financing); provided, however, that the foregoing shall not apply in Seller’s or its Affiliates’ or other Representatives’ willful misconduct or gross negligence, bad faith, willful misconduct, fraud or intentional misrepresentation of the Acquired Companies or any of their respective employees or representatives. Buyer Following the earlier of the Effective Time or the termination of this Agreement in accordance with Section 9.01, Parent shall promptly reimburse Seller the Acquired Companies for any reasonable and its Affiliates for all documented out-of-pocket third party costs and expenses incurred by Seller the Acquired Companies and its Affiliates each of their respective directors, officers, employees, agents and other Representatives in connection with the Debt Financing or such cooperationassistance other than (x) costs and expenses incurred in connection with the preparation of historical financial statements in the ordinary course of business, including the Required Information, and (y) any other ordinary course amounts that would have been incurred in connection with the transactions contemplated hereby entirely and completely regardless of (A) any debt financing established in connection herewith and (B) any requirements or actions under this Section 7.12.
(ed) Notwithstanding anything to the contrary herein, (i) it is understood and agreed that the condition precedent set forth in Section 8.02(a8.02(b), as applied to Sellerthe Company’s obligations under this Section 5.227.12, shall be deemed to be satisfied unless the Financing or the Sale Leaseback Debt Financing has not been obtained primarily as a result of Sellersthe Company’s willful and material breach of its obligations under this Section 5.22 to the extent such breach impairs or adversely affects the Financing or the Sale Leaseback Financing, including the execution, timing 7.12 and pricing or cost thereof, in a material manner. Buyer (ii) Parent and Merger Sub each acknowledges and agrees that obtaining the Debt Financing and the Sale Leaseback Financing are is not conditions a condition to Closing. None of Seller or any of its Affiliates shall have any their obligations under this Section 5.22 following Agreement.
(e) The Company hereby consents to the consummation use of the transactions contemplated herebylogos of the Acquired Companies in connection with any such Debt Financing; provided that such logos shall be used solely in a manner that is not intended or reasonably likely to harm, disparage or otherwise adversely affect the Acquired Companies, their reputation or goodwill.
Appears in 1 contract
Debt Financing Cooperation. (a) Seller shall, and The Company shall use all reasonable best efforts to, and to cause its Affiliates their respective officers, employees and Representatives advisors, including legal, financial and accounting advisors (collectively, the “Company Representatives”) to, provide such cooperation in connection with the arrangement of the Debt Financing as is reasonably requested by BuyerParent, or the arrangement of the Debt Financing or any capital markets debt financing undertaken in replacement of all or any portion of the Debt Financing (the “Bond Financing”); provided provided, that Seller and its Affiliates the Company shall in no event be required to provide such assistance that shall unreasonably interfere with their respective its business operations. Such assistance shall include, without limitation, include the following, each of which shall be at BuyerParent’s written request with reasonably practicable prior notice and at Buyer’s sole cost and expense:
(i) furnishing Buyer and its Financing Sources as promptly as practicable with (x) the financial statements and pro forma financial information referred to in the Commitment Letters (as in effect as of the date hereof) and (y) such other pertinent and customary financial and other information customarily delivered in connection with Buyer’s preparation of a customary bank book, confidential information memorandum, lender presentations, business projections and similar documents for financings that are similar to the Debt Financing and other marketing materials customarily used in connection with the syndication of financings that are similar to the Debt Financing reasonably requested by Buyer (including with respect to acquired entities) in order to market, syndicate and consummate the Debt Financing, and promptly provide Parent with any supplements to such information requested by Buyer pursuant to this clause (i);
(ii) participation by the senior management team of the Business Company in the marketing activities undertaken in connection with the marketing of the Debt Financing and the Bond Financing, including (A) assisting in the preparation of customary marketing materials, including preliminary offering circular, preliminary offering memorandum or preliminary private placement memorandum (“Offering Document”) for use in a customary bank book“high-yield road show” relating to the Bond Financing, confidential information memorandum, lender presentations, business projections and similar documents (B) a reasonable number of road shows and meetings (including customary one-on-one meetings) with prospective lenders or and debt investorsinvestors and (C) delivery of customary authorization letters, sessions subject to subsection (b) below;
(ii) participation by senior management of the Company in, and assistance with, the preparation of rating agency presentations and “road shows” and meetings with rating agencies for agencies;
(iii) delivery to Parent and its Financing Sources of the Required Information and Financing Deliverables;
(iv) participation by senior management and the Company Representatives in the negotiation of the Debt Financing Documents and the Bond Financing; and
(v) requesting that its independent auditors as of the Closing cooperate with the Debt Financing and Bond Financing, as applicable, including by participating in a reasonable number of drafting sessions and accounting due diligence sessions and otherwise providing the Specified Auditor Assistance;
(vi) assisting Parent with Parent’s preparation of pro forma financial statements and providing financial information necessary to satisfy the conditions set forth in marketing efforts related the Debt Commitment Letter; provided, that neither the Company nor any of its Subsidiaries or Company Representatives shall be responsible in any manner for information relating to the proposed debt and equity capitalization that is required for such pro forma financial information;
(vii) cooperating reasonably with the Financing Sources’ due diligence, to the extent reasonable and customary;
(viii) cooperating reasonably to facilitate discussions with the Company’s existing lending and investment banking relationships;
(ix) providing access and information reasonably requested by Parent to allow to permit the prospective Persons involved in the Debt Financing and the Bond Financing to evaluate the Company, including the Company’s current assets, cash management and accounting systems, policies and procedures relating thereto for the purposes of establishing collateral arrangements, in each case, upon reasonable advance notice and at times and locations to be agreed and as necessary and customary for financings similar to the Debt Financing including, without limitation, direct contact between senior management and representatives of the Business, on the one handBond Financing;
(x) providing access and information to allow Parent to obtain, and the financing sourcesusing reasonable best efforts to assist Parent in obtaining, potential lenders consents, landlord waivers and investors estoppels, non-disturbance agreements, surveys, title insurance (including providing reasonable access to Parent and its representatives to any Company Owned Real Property or Company Leased Real Property), as reasonably requested by Parent and as necessary and customary for financings similar to the Debt Financing and the Bond Financing;
(including, without limitation, xi) reasonably facilitating the Financing Sources), on the other hand; (C) providing to Buyer from time to time information regarding the Business reasonably requested by the financing sources (including, without limitation, the Financing Sources) and assisting with the preparation taking of appropriate and customary materials for rating agency presentations, offering and syndication documents (including prospectuses, private placement memoranda, lender and investor presentations, bank information memoranda and similar documents), (D) taking reasonable all corporate actions, subject to and only effective upon the occurrence of the ClosingEffective Time, reasonably necessary required to permit the consummation of the Debt Financing; Financing and to permit the proceeds thereof to be made available to the Surviving Corporation immediately after the Effective Time;
(Exii) providing customary authorization and/or representation letters in connection with any information about the distribution of the bank information memoranda contemplated by the Debt Commitment Letter to prospective lenders and identifying any portion of the information therein that constitutes material non-public information regarding the Business, Seller or its Subsidiaries; provided that such letters and confirmations expressly state that (x) Seller shall not have any liability of any kind or nature resulting from the use of information in connection with their cooperation with arranging the Debt Financing and (y) the recipient of such letters of authorization shall be entitled to rely only on the representations and warranties contained in the Debt Financing Documents; (F) assisting with the preparation and negotiation of, and facilitating the execution and delivery by the appropriate officers of any Purchased Company of, loan agreements, pledge and security documents and other definitive documents and/or certificates contemplated by the Debt Commitment Letter; (G) have a senior financial officer of any Purchased Company execute and deliver to the Financing Sources a solvency certificate in substantially the form attached to the Debt Commitment Letter; (H) cooperating in the replacement or backstop of any outstanding letters of credit issued for the account of the Business or any Purchased Subsidiaries or any joint venture thereof; (I) furnish Buyer and the Financing Sources at least five Business Days prior to the Closing Date with all documentation and other information as is reasonably requested with respect to the Business and any Purchased Subsidiaries required by the Debt Commitment Letter required under applicable “know your customer” and anti-money laundering laws, rules and regulations, including the U.S. USA PATRIOT Act within ten (10) Business Days after request by Parent;
(xiii) taking commercially reasonable efforts to the extent requested not less than 10 days prior assist Parent’s efforts to the Closing Date; (J) consenting to the use obtain ratings of the logos of the Business so long as such use is not reasonably likely to harm or disparage the Business or its reputation, goodwill, products, services, offerings or intellectual property rights; (K) obtaining customary payoff letters Bond Financing from Xxxxx’x and related documents and instruments relating to the repayment of any exiting third party indebtedness for borrowed money required by the Debt Commitment Letter to be repaid on or coincidental with Closing; and (L) supplementing the information covered by this Section 5.22(a)(ii) on a current basis if such supplement is necessary to ensure that such information does not contain an untrue statement of a material fact or omit to state any material fact necessary to make such information not misleadingS&P; and
(iiixiv) to the extent required in connection with the Bond Financing, taking commercially reasonable efforts to provide customary “10b-5” representation discourse letters from the Company. Notwithstanding the foregoing, (A) no obligation of the Company or any of its Subsidiaries under any certificate, document or instrument (other than the authorization and representation letters referred to above) shall be effective until the Closing and (B) none of the Company or any of its Subsidiaries shall be required to take any action under any such actions as are reasonably requested by Buyer certificate, document or its Financing Sources instrument that is not contingent upon the Closing (including the entry into any agreement that is effective before the Closing) or that would be effective prior to facilitate the satisfaction on a timely basis of all Financing Conditions that are within its controlEffective Time.
(b) Seller will use its reasonable best efforts, and will cause its Subsidiaries to use their reasonable best efforts, to provide to Buyer and its Financing Sources such information as may be necessary so that the information prepared in connection with the Debt Financing (including the marketing thereof) is complete and correct in all material respects and does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein, in the light of the circumstances under which such statements are made, not misleading.
(c) Seller The Company shall have the right to review and comment on marketing materials related to used in connection with the arrangement of the Debt Financing prior to the dissemination of such materials to potential lenders or other counterparties to any proposed financing transaction (or filing with any Governmental AuthorityEntity); provided, that Seller the Company shall communicate in writing their its comments, if any, to Buyer Parent and its counsel within a reasonable period of time under the circumstances and consistent with the time accorded to other participants who were asked to review and comment on such marketing materials. Notwithstanding anything in this Section 5.22 to the contrary, neither Seller nor any of its Affiliates The Company shall not be required to (i) pay agree to any commitment fee or similar fee, (ii) except in contractual obligation relating to the case of the Purchased Companies following Financing that is not conditioned upon the Closing and that does not terminate without liability to the execution Company and its affiliates upon the termination of authorization and representation letters referred this Agreement. The Company shall not be required to in Section 5.22(a)(ii), incur any Liability (deliver or cause their respective directorsthe delivery of any legal opinions or, officers or employees to incur any Liabilityother than as specified in clause (a) with respect to the cooperation described in this Section 5.22above, (iii) approve or enter into any agreement or binding commitment, (iv) provide (or to have any of their respective Representatives provide) any opinions or reliance letters, in each case, with respect to or letters in connection with the Financing or the Sale Leaseback Debt Financing, or (v) execute or deliver, or take any corporate or other action to adopt or approve, any documents, agreement, certificate or instrument with respect to the Financing, including any pledge or security documents or closing certificates (other than (x) the execution of authorization and representation letters referred to in Section 5.22(a)(ii) and (y) to the extent necessary for the valid and enforceable execution of definitive Financing documentation, such cooperation as is reasonably necessary to facilitate the adoption of resolutions and consents, as applicable); provided that the foregoing clause (y) shall not prevent any of the officers or directors of any Purchased Company who will remain officers and/or directors of a Purchased Company immediately following the Closing from executing documents, agreements, resolutions, certificates and instruments that do not become effective until the Closing.
(dc) Buyer Parent shall indemnify and hold harmless Seller the Company and its AffiliatesSubsidiaries, and each of their respective directorsthe Company Representatives, officers, employees, agents and other Representatives from and against any and all Liabilities liabilities, costs or expenses suffered or incurred in connection with the arrangement of the Debt Financing or the Sale Leaseback Financing or any assistance or activities provided in connection therewith (other than historical information relating to the Business provided by Seller or its Affiliates in writing for the purpose of arranging the Debt Financing“Reimbursement Obligations”); provided, however, that the foregoing shall not apply in Sellerthe Company’s or its Affiliates’ Subsidiaries’, or other any of their respective Representatives’ ’, willful misconduct or gross negligence. Buyer Parent shall promptly reimburse Seller and its Affiliates the Company for all reasonable and documented out-of-pocket third party costs and expenses incurred by Seller and its Affiliates the Company in connection with such cooperation.
(d) The Company consents to the use of its and its Subsidiaries’ logos by Parent, the Financing Sources and their Representatives in connection with the Debt Financing and the Bond Financing in a manner customary for such financing transactions; provided, that such logos are used solely in a manner that is not intended to or reasonably expected to harm or disparage the Company or any of its Subsidiaries or the reputation or goodwill of the Company or any of its Subsidiaries.
(e) Notwithstanding anything to the contrary contained herein, it if any portion of the Debt Financing or Bond Financing is funded into an escrow prior to the Effective Time, the parties hereto acknowledge and agree that the inclusion in the escrow arrangement of conditions customary for escrow arrangements of this nature (and the escrow arrangement itself) will not constitute a breach of this Agreement.
(f) The Company shall, and shall cause each of its Subsidiaries to, use its reasonable best efforts to periodically update any Required Information in order to ensure that the Required Information does not, when furnished and taken as a whole, contain any untrue statement of a material fact or omit to state any material fact, in each case with respect to the Company or its Subsidiaries, necessary in order to make the Required Information, in light of the circumstances under which the statements contained in the Required Information are made, not misleading.
(g) It is understood and agreed that the condition precedent set forth in Section 8.02(a6.3(b), as applied to Sellerthe Company’s obligations under this Section 5.225.11, shall be deemed to be satisfied unless (i) the Financing or the Sale Leaseback Financing has not been obtained as a result of Sellers’s breach Company shall have materially breached any of its obligations under this Section 5.22 to 5.11, (ii) such material breach shall not have been cured within 10 days after receipt of written notice thereof from Parent and (iii) such material breach shall have been the extent such breach impairs or adversely affects the primary cause of a Financing or the Sale Leaseback Financing, including the execution, timing and pricing or cost thereof, in a material mannerFailure Event. Buyer Parent acknowledges and agrees that obtaining the Financing and the Sale Leaseback Financing are is not conditions a condition to Closing. None of Seller or any of its Affiliates shall have any obligations under this Section 5.22 following the consummation of the transactions contemplated hereby.
Appears in 1 contract
Samples: Merger Agreement (LogMeIn, Inc.)
Debt Financing Cooperation. (a) Seller shallThe Company shall use reasonable best efforts to provide, and shall cause its Subsidiaries to use all reasonable best efforts to provide (or cause to be provided, including by using reasonable best efforts to cause its Affiliates and their respective Representatives to, provide to provide) on a timely basis (taking into account the timing of the Marketing Period) such cooperation (including with respect to timeliness) in connection with the arrangement of the Debt Financing as is reasonably requested by BuyerParent; provided provided, that Seller and its Affiliates the Company shall in no event be required to provide (or cause to be provided) such assistance that shall unreasonably interfere with their respective its or its Subsidiaries’ business operations. Such assistance shall include, without limitation, include the following, each of which shall be at BuyerParent’s reasonable written request with reasonably practicable reasonable prior notice and at BuyerParent’s sole cost and expense:
(i) furnishing Buyer and its Financing Sources as promptly as practicable with (x) the financial statements and pro forma financial information referred to in the Commitment Letters (as in effect as of the date hereof) and (y) such other pertinent and customary financial and other information customarily delivered in connection with Buyer’s preparation of a customary bank book, confidential information memorandum, lender presentations, business projections and similar documents for financings that are similar to the Debt Financing and other marketing materials customarily used in connection with the syndication of financings that are similar to the Debt Financing reasonably requested by Buyer (including with respect to acquired entities) in order to market, syndicate and consummate the Debt Financing, and promptly provide Parent with any supplements to such information requested by Buyer pursuant to this clause (i);
(ii) participation by the senior management team of the Business Company in the marketing activities undertaken in connection with the marketing of the Debt Financing, including (A) assisting in the preparation of a customary bank bookinformation memoranda (including, confidential to the extent necessary, an additional bank information memorandummemorandum that does not include material non-public information), lender presentationspresentations and other customary marketing and syndication materials used to arrange financings similar to the Debt Financing, business projections and similar documents (B) participation in due diligence sessions, (C) a reasonable number of meetings meetings, presentations and other customary syndication activities with the actual and prospective lenders or debt investorsFinancing Sources, sessions with rating agencies for the Debt Financing and due diligence sessions and otherwise assisting in marketing efforts related to the Debt Financing including, without limitation, including direct contact between the senior management team and the other representatives of the BusinessCompany and its Subsidiaries, on the one hand, and the financing sources, potential lenders actual and investors for the Debt Financing (including, without limitation, the prospective Financing Sources), on the other hand; (C) providing to Buyer from time to time information regarding the Business reasonably requested by the financing sources (including, without limitation, the Financing Sources) hand and assisting with the preparation of appropriate and customary materials for rating agency presentations, offering and syndication documents (including prospectuses, private placement memoranda, lender and investor presentations, bank information memoranda and similar documents), (D) taking reasonable corporate actions, subject to execution and only effective upon the occurrence delivery of the Closing, reasonably necessary to permit the consummation of the Debt Financing; (E) providing customary authorization and/or representation letters in connection with the distribution of the bank information memoranda contemplated by the Debt Commitment Letter Letter; provided, that Parent will use reasonable best efforts to prospective lenders and identifying any portion of the information therein that constitutes material non-public information regarding the Business, Seller or its Subsidiaries; provided ensure that such letters and confirmations expressly state that (x) Seller the Company shall not have any liability of any kind or nature resulting from the use of information in connection with their cooperation with arranging the Debt Financing, except for liability under the applicable definitive Debt Financing Documents executed on the Closing Date;
(ii) participation by senior management of the Company and applicable representatives in, and assistance with, the preparation of rating agency presentations and meetings with rating agencies;
(iii) delivery as promptly as reasonably practicable (taking into account the timing of the Marketing Period) to Parent and the applicable Financing Sources of the Financing Information and Financing Deliverables;
(iv) participation by senior management of the Company in the negotiation of the Debt Financing Documents, execution and delivery of definitive Debt Financing Documents and providing information necessary for the completion of any schedules thereto;
(v) reasonably facilitating the taking of collateral contemplated by the Debt Financing and the taking of all corporate actions by the Company and its Subsidiaries with respect to entering into such definitive Debt Financing Documents and otherwise necessary to permit consummation of the Debt Financing; and
(vi) delivering (or causing to be delivered) notices of prepayment (which notice may be conditioned upon the consummation of the Closing and other transactions contemplated hereunder (including the Financing)) within the time periods required by the relevant agreements governing the Funded Debt and obtaining the Payoff Letter at least three (3) Business Days prior to Closing; provided that (w) nothing in this Section 5.11 shall require any such action to the extent it would (1) unreasonably interfere with the business or operations of the Company or its Subsidiaries or require the Company or its Subsidiaries to agree to pay any fees, reimburse any expenses or give any indemnities, in any case prior to the Closing, for which Parent does not promptly reimburse or indemnify it, as the case may be, under this Agreement or (2) require the Company, any Company Related Party or their respective representatives or financing sources to (I) execute, deliver or enter into, or perform any agreement, document or instrument (except for the customary authorization letter referred to in clause (i)(D) above), including any commitment letter, with respect to any Financing prior to the Effective Time that is not contingent upon the consummation of Closing or that would be effective prior to the Effective Time, (II) commit to take any action (including entry into an agreement) that is not contingent upon the consummation of Closing or that would be effective prior to the Effective Time or (III) deliver any legal opinions or reliance letters in connection with the Debt Financing, (x) none of the board or its directors (or other similarly governing body) of the Company or its Subsidiaries shall be required to adopt resolutions approving the agreements, documents and instruments pursuant to which any Financing is obtained (except that the board of directors of Subsidiaries may adopt such resolutions derived from and based on (1) the authorizations (including appointment of directors and authorized officers) provided by Parent in its capacity as the direct or indirect controlling equity-holder of the Surviving Corporation and (2) resolutions adopted by the Surviving Corporation, and solely to the extent such Subsidiary resolutions are contingent upon the Closing or become effective after giving effect to the Effective Time), (y) the recipient of such letters of authorization Company’s obligations under this Section 5.11 shall be entitled to rely only on the representations and warranties contained in the Debt Financing Documents; (F) assisting with the preparation and negotiation of, and facilitating the execution and delivery by the appropriate officers of any Purchased Company of, loan agreements, pledge and security documents and other definitive documents and/or certificates contemplated by the Debt Commitment Letter; (G) have a senior financial officer of any Purchased Company execute and deliver subject to the Financing Sources a solvency certificate and their affiliates and their respective Representatives (as applicable) being bound by confidentiality agreements in substantially the form attached to the Debt Commitment Letteraccordance with customary market practice; and (Hz) cooperating in the replacement or backstop of any outstanding letters of credit issued for the account none of the Business Company or any Purchased of its Subsidiaries or shall be required to provide any joint venture thereof; information pursuant to this clause (Ia) furnish Buyer and the Financing Sources at least five Business Days prior to the Closing Date with all documentation and other information with respect to the Business and any Purchased Subsidiaries required by the Debt Commitment Letter required under applicable “know your customer” and anti-money laundering laws, rules and regulations, including the U.S. PATRIOT Act to the extent requested not less than 10 days prior it would result in the waiver of an attorney-client or similar privilege if the Company shall have used its reasonable best efforts to the Closing Date; (J) consenting to the use of the logos of the Business so long as such use is not reasonably likely to harm or disparage the Business or its reputation, goodwill, products, services, offerings or intellectual property rights; (K) obtaining customary payoff letters and related documents and instruments relating to the repayment of any exiting third party indebtedness for borrowed money required by the Debt Commitment Letter to be repaid on or coincidental with Closing; and (L) supplementing the information covered by this Section 5.22(a)(ii) on a current basis if such supplement is necessary to ensure that provide such information does in a way that would not contain an untrue statement of a material fact or omit to state any material fact necessary to make waive such information not misleading; and
(iii) taking such actions as are reasonably requested by Buyer or its Financing Sources to facilitate the satisfaction on a timely basis of all Financing Conditions that are within its controlprivilege.
(b) Seller will Parent shall use its reasonable best efforts, and will cause its Subsidiaries to use their reasonable best efforts, efforts to provide to Buyer and its Financing Sources such information as may be necessary so that the information prepared in connection with the Debt Financing (including the marketing thereof) is complete and correct in all material respects and does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein, in the light of the circumstances under which such statements are made, not misleading.
(c) Seller shall have the right Company sufficient time to review and comment on marketing materials related to used in connection with the arrangement of the Debt Financing prior to the dissemination of such materials to potential lenders or other counterparties to any proposed financing transaction (or filing with any Governmental AuthorityEntity); provided, that Seller the Company shall communicate in writing their comments, if any, to Buyer Parent and its counsel within a reasonable period of time under the circumstances and consistent with the time accorded to other participants who were asked to review and comment on such marketing materials. Notwithstanding anything in this Section 5.22 to the contrary, neither Seller nor any of its Affiliates shall be required to (i) pay any commitment fee or similar fee, (ii) except in the case of the Purchased Companies following the Closing and the execution of authorization and representation letters referred to in Section 5.22(a)(ii), incur any Liability (or cause their respective directors, officers or employees to incur any Liability) with respect to the cooperation described in this Section 5.22, (iii) approve or enter into any agreement or binding commitment, (iv) provide (or to have any of their respective Representatives provide) any opinions or reliance letters, in each case, with respect to or in connection with the Financing or the Sale Leaseback Financing, or (v) execute or deliver, or take any corporate or other action to adopt or approve, any documents, agreement, certificate or instrument with respect to the Financing, including any pledge or security documents or closing certificates (other than (x) the execution of authorization and representation letters referred to in Section 5.22(a)(ii) and (y) to the extent necessary for the valid and enforceable execution of definitive Financing documentation, such cooperation as is reasonably necessary to facilitate the adoption of resolutions and consents, as applicable); provided that the foregoing clause (y) shall not prevent any of the officers or directors of any Purchased Company who will remain officers and/or directors of a Purchased Company immediately following the Closing from executing documents, agreements, resolutions, certificates and instruments that do not become effective until the Closing.
(dc) Buyer Parent shall indemnify and hold harmless Seller the Company and its AffiliatesSubsidiaries, and each of their respective directors, officers, employees, agents and other Representatives Representatives, from and against any and all Liabilities liabilities, costs or expenses suffered or incurred in connection with the arrangement arranging or obtaining of the Debt Financing or the Sale Leaseback Financing or any information, assistance or activities provided in connection therewith (other than historical information relating to therewith. Parent shall promptly, upon the Business provided by Seller or its Affiliates in writing request of the Company, reimburse the Company for the purpose of arranging the Debt Financing); provided, however, that the foregoing shall not apply in Seller’s or its Affiliates’ or other Representatives’ willful misconduct or gross negligence. Buyer shall promptly reimburse Seller any and its Affiliates for all reasonable and documented out-of-pocket third party costs and expenses incurred by Seller and the Company or any of its Affiliates Subsidiaries in connection with such cooperationthis Section 5.11.
(ed) Parent acknowledges and agrees that obtaining the Financing is not a condition to Closing. Notwithstanding anything to the contrary herein, it is understood and agreed that the condition precedent set forth in Section 8.02(a6.3(b), as applied to Sellerthe Company’s obligations under this Section 5.225.11, shall be deemed to be satisfied unless the Financing or the Sale Leaseback Financing has not been obtained as a direct result of Sellersthe Company’s breach Willful and Material Breach of its obligations under this Section 5.22 5.11.
(e) The Company hereby consents to the extent reasonable use of the Company’s logos in connection with the Debt Financing, provided that such breach impairs logos are used solely in a manner that is not intended to or adversely affects reasonably likely to harm or disparage the Financing Company or the Sale Leaseback Financing, including the execution, timing and pricing reputation or cost thereof, in a material manner. Buyer acknowledges and agrees that obtaining the Financing and the Sale Leaseback Financing are not conditions to Closing. None of Seller goodwill thereof or any of its Affiliates shall have any obligations under this Section 5.22 following the consummation of the transactions contemplated herebyassociated therewith.
Appears in 1 contract
Debt Financing Cooperation. (a) Prior to the Closing, Seller shallshall use its commercially reasonable efforts to provide, and shall cause its Subsidiaries (including the Acquired Companies) and its and their respective representatives to use all commercially reasonable best efforts to cause its Affiliates and Representatives toprovide, provide such cooperation as is reasonably requested by Buyer in connection with the arrangement of the Debt Financing as is reasonably requested by Buyer; (provided that such requested cooperation does not (1) require Seller and or any of its Affiliates shall Subsidiaries (including the Acquired Companies) to take any action that would violate any Laws or would result in no event be required a violation or breach by Seller or any of its Subsidiaries (including the Acquired Companies), or default under, any contract or agreement to provide which such assistance that shall unreasonably interfere with their respective business operations. Such assistance shall include, without limitation, the following, each of which shall be at Buyer’s request with reasonably practicable prior notice and at Buyer’s sole cost and expense:
(i) furnishing Buyer and its Financing Sources as promptly as practicable with (x) the financial statements and pro forma financial information referred to in the Commitment Letters (as in effect Person is a party as of the date hereofhereof or (2) and result in any officer, manager or director of Seller or any of its Subsidiaries incurring any personal liability), including by using commercially reasonable efforts to: (yi) such other pertinent and customary financial and other information customarily delivered in connection with Buyer’s preparation of a customary bank book, confidential information memorandum, lender presentations, business projections and similar documents for financings that are similar to the Debt Financing and other marketing materials customarily used extent reasonable, participate in connection with the syndication of financings that are similar to the Debt Financing reasonably requested by Buyer (including with respect to acquired entities) in order to market, syndicate and consummate the Debt Financing, and promptly provide Parent with any supplements to such information requested by Buyer pursuant to this clause (i);
(ii) participation by the senior management team of the Business in the marketing activities undertaken in connection with the marketing of the Debt Financing, including (A) assisting in the preparation of a customary bank book, confidential information memorandum, lender presentations, business projections and similar documents (B) a reasonable number of meetings (including meetings with prospective lenders or debt investorslenders), presentations, road shows, drafting sessions with rating agencies for the Debt Financing and due diligence sessions and otherwise assisting in marketing sessions, including using commercially reasonable efforts related to the Debt Financing including, without limitation, coordinate direct contact between senior management and representatives the independent auditors of Seller and the Business, Acquired Companies on the one hand, and the financing sources, actual and potential lenders and investors for the Debt Financing (including, without limitation, the Financing Sources)lenders, on the other hand; hand and sessions with rating agencies, at reasonable times and with reasonable advance notice, (Cii) providing furnish to Buyer from time as promptly as reasonably practicable the Required Information, (iii) provide upon the reasonable request of Buyer such information reasonably deemed necessary to time prepare a confidential information regarding the Business reasonably requested by the financing sources memorandum (including, without limitation, the Financing Sourcesincluding a version that does not include material non-public information) and assisting with other customary materials reasonably required to complete the syndication, (iv) assist Buyer in the preparation of appropriate and (A) customary materials for rating agency presentationsand investor presentations (including “roadshow” or investor meeting slides), registration statements, offering and syndication documents (including memoranda, prospectuses, private placement memoranda, lender and investor presentations, bank information memoranda other customary marketing materials and similar documents)(B) definitive documentation for the Debt Financing, (Dv) taking cooperate to facilitate the due diligence efforts of the Debt Financing Sources relating to the Business, to the extent customary and reasonable corporate actionsand not unreasonably interfering with the business of Seller and its Subsidiaries, (vi) facilitate the release of any Liens on the Equity Interests and the termination of all guarantees (if any) in connection therewith subject to and only effective upon the occurrence of the Closing, reasonably necessary to permit the consummation of the Debt Financing; (E) providing customary authorization and/or representation letters in connection with the distribution of the bank information memoranda contemplated by the Debt Commitment Letter to prospective lenders and identifying any portion of the information therein that constitutes material non-public information regarding the Business, Seller or its Subsidiaries; provided that such letters and confirmations expressly state that (x) Seller shall not have any liability of any kind or nature resulting from the use of information in connection with their cooperation with arranging the Debt Financing Closing and (yvii) the recipient of such letters of authorization shall be entitled to rely only on the representations and warranties contained in the Debt Financing Documents; (F) assisting with the preparation and negotiation of, and facilitating the execution and delivery by the appropriate officers of any Purchased Company of, loan agreements, pledge and security documents and other definitive documents and/or certificates contemplated by the Debt Commitment Letter; (G) have a senior financial officer of any Purchased Company execute and deliver to the Financing Sources a solvency certificate in substantially the form attached to the Debt Commitment Letter; (H) cooperating in the replacement or backstop of any outstanding letters of credit issued for the account of the Business or any Purchased Subsidiaries or any joint venture thereof; (I) furnish Buyer and the Financing Sources provide at least five (5) Business Days prior to the Closing Date with Date, all documentation and other information with respect to the Business and any Purchased Subsidiaries as is required by the Debt Commitment Letter required under applicable “know your customer” and anti-money laundering laws, rules and regulations, regulations including the U.S. USA PATRIOT Act and the beneficial ownership regulations. Notwithstanding anything in this Agreement to the extent requested not less contrary, (i) none of Seller or any of its Affiliates (other than 10 days prior the Acquired Companies at and following the Closing) shall be required to the Closing Date; (J) consenting to the use of the logos of the Business so long as such use is not reasonably likely to harm pay any commitment or disparage the Business other fee or its reputation, goodwill, products, services, offerings incur any other liability or intellectual property rights; (K) obtaining customary payoff letters and related documents and instruments relating to the repayment of any exiting third party indebtedness for borrowed money required by the Debt Commitment Letter to be repaid on or coincidental with Closing; and (L) supplementing the information covered by this Section 5.22(a)(ii) on a current basis if such supplement is necessary to ensure that such information does not contain an untrue statement of a material fact or omit to state any material fact necessary to make such information not misleading; and
(iii) taking such actions as are reasonably requested by Buyer or its Financing Sources to facilitate the satisfaction on a timely basis of all Financing Conditions that are within its control.
(b) Seller will use its reasonable best efforts, and will cause its Subsidiaries to use their reasonable best efforts, to provide to Buyer and its Financing Sources such information as may be necessary so that the information prepared obligation in connection with the Debt Financing Financing, (including the marketing thereofii) is complete and correct in all material respects and does not contain no obligation of any untrue statement of a material fact Acquired Company under any document, certificate or omit instrument executed pursuant to state a material fact necessary to make the statements contained therein, in the light of the circumstances under which such statements are made, not misleading.
(c) Seller shall have the right to review and comment on marketing materials related to the Debt Financing prior to the dissemination of such materials to potential lenders or other counterparties to any proposed financing transaction (or filing with any Governmental Authority); provided, that Seller shall communicate in writing their comments, if any, to Buyer and its counsel within a reasonable period of time under the circumstances and consistent with the time accorded to other participants who were asked to review and comment on such materials. Notwithstanding anything in this Section 5.22 to 5.4 shall be effective until the contraryClosing, neither and (iii) none of Seller nor or any of its Affiliates shall be required to (i) pay execute or deliver or have any commitment fee liability or similar fee, (ii) except in the case of the Purchased Companies following the Closing and the execution of authorization and representation letters referred to in Section 5.22(a)(ii), incur obligation under any Liability (or cause their respective directors, officers or employees to incur any Liability) with respect to the cooperation described in this Section 5.22, (iii) approve or enter into any loan agreement or binding commitmentany related document or any other agreement or document (including any certificates, (iv) provide (or to have any of their respective Representatives provide) any legal opinions or reliance letters, in each case, with respect to or in connection with the Financing or the Sale Leaseback Financing, or (v) execute or deliver, or take any corporate or other action to adopt or approve, any documents, agreement, certificate or instrument with respect to the Financing, including any pledge or security documents or closing certificates (other than (xdocuments) the execution of authorization and representation letters referred related to in Section 5.22(a)(ii) and (y) to the extent necessary for the valid and enforceable execution of definitive Financing documentation, such cooperation as is reasonably necessary to facilitate the adoption of resolutions and consents, as applicable); provided that the foregoing clause (y) shall not prevent any of the officers or directors of any Purchased Company who will remain officers and/or directors of a Purchased Company immediately following the Closing from executing documents, agreements, resolutions, certificates and instruments that do not become effective until the Closing.
(d) Buyer shall indemnify and hold harmless Seller and its Affiliates, and each of their respective directors, officers, employees, agents and other Representatives from and against any and all Liabilities suffered or incurred in connection with the arrangement of the Debt Financing or the Sale Leaseback Financing or any assistance or activities provided in connection therewith (other than historical information relating to the Business provided by Seller or its Affiliates in writing for the purpose of arranging the Debt Financing); provided, however, that the foregoing shall not apply in Seller’s or its Affiliates’ or other Representatives’ willful misconduct or gross negligence. Buyer shall promptly promptly, upon request by Seller, reimburse Seller and its Affiliates for all documented reasonable and invoiced out-of-pocket third party costs (including reasonable attorneys’ fees) incurred by Seller and its Affiliates in connection with such cooperation.
(e) Notwithstanding anything to the contrary herein, it is understood and agreed that the condition set forth in Section 8.02(a), as applied to Seller’s obligations under this Section 5.22, shall be deemed to be satisfied unless the Financing or the Sale Leaseback Financing has not been obtained as a result of Sellers’s breach of its obligations under this Section 5.22 to the extent such breach impairs or adversely affects the Financing or the Sale Leaseback Financing, including the execution, timing and pricing or cost thereof, in a material manner. Buyer acknowledges and agrees that obtaining the Financing and the Sale Leaseback Financing are not conditions to Closing. None of Seller or any of its Affiliates shall have any obligations under in connection with the cooperation of Seller and its Affiliates contemplated by this Section 5.22 following 5.4. All non-public or other confidential information provided by Seller or its representatives pursuant to this Agreement will be kept confidential in accordance with the consummation NDA, except that Buyer will be permitted to disclose such information to any Debt Financing Sources or prospective Debt Financing Sources and other financial institutions and investors that may become parties to the Debt Financing and to any underwriters, initial purchasers or placement agents in connection with the Debt Financing (and, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the NDA as if parties thereto or other confidentiality obligations that are substantially similar to those contained in the NDA or (ii) are subject to customary confidentiality arrangements, or other confidentiality undertakings reasonably satisfactory to Buyer and of the transactions contemplated herebywhich Buyer is a beneficiary.
Appears in 1 contract
Samples: Purchase Agreement (E.W. SCRIPPS Co)
Debt Financing Cooperation. (a) Seller Prior to the Closing, the Company shall, and shall cause its Subsidiaries to, use all reasonable best efforts to cause its Affiliates and Representatives to, provide such cooperation in connection with the arrangement arrangement, syndication and consummation of the Debt Financing as is reasonably requested by BuyerParent; provided provided, that Seller and its Affiliates the Company shall in no event be required to provide such assistance that shall unreasonably interfere with their respective its business operations. Such assistance shall include, without limitation, include the following, each of which shall be at BuyerParent’s written request with reasonably practicable reasonable prior notice and at BuyerParent’s sole cost and expense:
(i) furnishing Buyer and its Financing Sources as promptly as practicable with (x) the financial statements and pro forma financial information referred to in the Commitment Letters (as in effect as of the date hereof) and (y) such other pertinent and customary financial and other information customarily delivered in connection with Buyer’s preparation of a customary bank book, confidential information memorandum, lender presentations, business projections and similar documents for financings that are similar to the Debt Financing and other marketing materials customarily used in connection with the syndication of financings that are similar to the Debt Financing reasonably requested by Buyer (including with respect to acquired entities) in order to market, syndicate and consummate the Debt Financing, and promptly provide Parent with any supplements to such information requested by Buyer pursuant to this clause (i);
(ii) participation by the senior management team of the Business Company in the marketing activities undertaken in connection with the marketing of the Debt Financing, including (A) assisting in the preparation of a customary bank book, confidential information memorandum, lender presentations, business projections marketing material and similar documents due diligence sessions and drafting sessions related thereto and (B) a reasonable number of road shows and meetings with prospective lenders and debt investors (including a customary lender meeting with the Financing Sources acting as lead arrangers or debt investorsagents for, sessions and material prospective Financing Sources for, the Debt Financing);
(ii) participation by senior management of the Company in, and assistance with, the preparation of rating agency presentations and meetings with rating agencies for the Debt agencies;
(iii) delivery to Parent and its Financing and due diligence sessions and otherwise assisting in marketing efforts related to the Debt Financing including, without limitation, direct contact between senior management and representatives Sources of the Business, on the one hand, Financing Information and the financing sources, potential lenders and investors for the Debt Financing Deliverables;
(including, without limitation, the Financing Sources), on the other hand; (Civ) providing to Buyer from time to time information regarding the Business and executing documents as may be reasonably requested by the financing sources (includingParent, without limitation, the Financing Sources) and assisting with the preparation of appropriate and customary materials for rating agency presentations, offering and syndication documents (including prospectuses, private placement memoranda, lender and investor presentations, bank information memoranda and similar documents), (D) taking reasonable corporate actions, subject to and only effective upon the occurrence of the Closing, reasonably necessary to permit the consummation of the Debt Financing; (E) providing customary authorization and/or representation letters and confirmations in connection with the distribution Financing Information;
(v) subject to customary confidentiality agreements, using commercially reasonable efforts to cooperate with the due diligence investigation of the bank information memoranda contemplated by Financing Sources in connection with the Debt Financing, to the extent customary and reasonable;
(vi) reasonably cooperating with Parent in satisfying on a timely basis all conditions to funding set forth in the Debt Commitment Letter to prospective lenders and identifying any portion the applicable Debt Financing Documents that are within the control of the information therein that constitutes material non-public information regarding the Business, Seller or its Subsidiaries; provided that such letters and confirmations expressly state that Company;
(xvii) Seller shall not have any liability of any kind or nature resulting from the use of information if reasonably requested in connection with their cooperation with arranging the Debt Financing and (y) the recipient of such letters of authorization shall be entitled to rely only on the representations and warranties contained in the Debt Financing Documents; (F) assisting with the preparation and negotiation of, and facilitating the execution and delivery by the appropriate officers of any Purchased Company of, loan agreements, pledge and security documents and other definitive documents and/or certificates contemplated by the Debt Commitment Letter; (G) have a senior financial officer of any Purchased Company execute and deliver to the Financing Sources a solvency certificate in substantially the form attached to the Debt Commitment Letter; (H) cooperating in the replacement or backstop of any outstanding letters of credit issued for the account of the Business or any Purchased Subsidiaries or any joint venture thereof; (I) furnish Buyer and the Financing Sources writing at least five ten (10) business days prior to Closing, providing at least three (3) Business Days prior to the Closing Date with Closing, all documentation and other information with respect to the Business Company and the Subsidiaries of the Company that are guarantors under the Debt Financing Documents, that any Purchased Subsidiaries Financing Source has reasonably determined is required by the Debt Commitment Letter required regulatory authorities under applicable “know your customer” and anti-money laundering laws, rules and regulations, including the U.S. USA PATRIOT Act ACT, Title III of Pub. L. 107-56 (signed into law October 26, 2001);
(viii) cooperating in the prepayment in full and termination in full of any Existing Indebtedness of the Company or its Subsidiaries, the termination in full of all guaranties and security interests in connection therewith and the delivery of customary payoff letters, lien releases and termination documentation with respect to the extent requested not less than 10 days prior foregoing, in each case reasonably satisfactory to Parent;
(ix) using reasonable best efforts to (A) permit the Closing Date; prospective Financing Sources involved in the Debt Financing to evaluate the Company and its Subsidiaries’ current assets, cash management and accounting systems, policies and procedures relating thereto for the purpose of establishing collateral arrangements, (JB) consenting cooperate with Parent to establish bank and other accounts and blocked account agreements and lock box arrangements in connection with the use foregoing and (C) permit representatives of the logos prospective Financing Sources to conduct customary commercial field examinations, inventory and intellectual property appraisals and make audits and appraisals delivered for the purposes of the Business so long as such use is not reasonably likely to harm or disparage Debt Financing;
(x) participation by senior management of the Business or its reputation, goodwill, products, services, offerings or intellectual property rights; (K) obtaining customary payoff letters and related documents and instruments relating to Company in the repayment negotiation of any exiting third party indebtedness for borrowed money required by the Debt Commitment Letter to be repaid on or coincidental with Closing; and (L) supplementing the information covered by this Section 5.22(a)(ii) on a current basis if such supplement is necessary to ensure that such information does not contain an untrue statement of a material fact or omit to state any material fact necessary to make such information not misleadingFinancing Documents; and
(iiixi) taking requesting that its independent auditors as of the Closing cooperate with the Debt Financing, including by providing the Specified Auditor Assistance; provided, however, that, (A) no obligation of the Company or any of its Subsidiaries under any such actions as are reasonably requested by Buyer certificate, document or instrument (other than the authorization and representation letters referred to above) shall be effective until the Closing and (B) none of the Company or any of its Financing Sources Subsidiaries shall be required to facilitate take any action under any such certificate, document or instrument that is not contingent upon the satisfaction on a timely basis of all Financing Conditions Closing (including the entry into any agreement that are within its controlis effective before the Closing) or that would be effective prior to the Effective Time.
(b) Seller will use its reasonable best efforts, and will cause its Subsidiaries to use their reasonable best efforts, to provide to Buyer and its Financing Sources such information as may be necessary so that the information prepared in connection with the Debt Financing (including the marketing thereof) is complete and correct in all material respects and does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein, in the light of the circumstances under which such statements are made, not misleading.
(c) Seller The Company shall have the right to review and comment on marketing materials related to used in connection with the arrangement of the Debt Financing prior to the dissemination of such materials to potential lenders or other counterparties to any proposed financing transaction (or filing with any Governmental AuthorityEntity); provided, that Seller the Company shall communicate in writing their comments, if any, to Buyer Parent and its counsel within a reasonable period of time under the circumstances and consistent with the time accorded to other participants who were asked to review and comment on such marketing materials. Notwithstanding anything in this Section 5.22 The Company shall not be required to agree to any contractual obligation relating to the contraryFinancing that is not conditioned upon the Closing and that does not terminate without liability to the Company and its affiliates upon the termination of this Agreement. The Company shall not be required to deliver or cause the delivery of any legal opinions (but will cooperate in providing information with local counsel to the Company) or reliance letters in connection with the Debt Financing.
(c) The Company hereby consents to the use of its and its Subsidiaries’ logos in connection with the Debt Financing; provided, neither Seller nor that such logos shall be used solely in a manner that is not intended or reasonably likely to harm, disparage or otherwise adversely affect the Company or any of its Affiliates shall be required Subsidiaries. In addition, the Company agrees that, upon Parent’s reasonable request, it will cooperate with Parent to supplement the Financing Information so that Parent may most effectively access the financing markets.
(i) pay As soon as reasonably practicable after the receipt of any commitment fee written request by Parent or similar feeMerger Sub to do so, the Company shall use its reasonable best efforts to commence offers to purchase (iiincluding change of control offers) except in the case and/or consent solicitations related to any or all of the Purchased Companies following outstanding aggregate principal amount and all other amounts due pursuant to or under the Company’s 9.5% senior secured notes due 2018 (the “Existing Notes”), on such terms and conditions, including pricing terms, that are specified and requested, from time to time, by Parent (each a “Debt Tender Offer” and collectively, the “Debt Tender Offers”) and Parent shall assist the Company in connection therewith; provided that Parent shall only request the Company to conduct any Debt Tender Offer in compliance with the documents governing the applicable debt securities and applicable federal securities Laws. The Company, and its counsel, shall be given a reasonable opportunity to review documentation with respect to any Debt Tender Offer before it is distributed to holders of the Existing Notes or filed with the SEC, as applicable, and Parent and Merger Sub shall give due consideration to any reasonable additions, deletions or changes suggested thereto by the Company or its counsel. Notwithstanding the foregoing, the closing of the Debt Tender Offers shall be conditioned on the occurrence of the Closing, and the parties shall use their respective reasonable best efforts to cause the Debt Tender Offers to close on the Closing Date. Subject to the preceding sentence, the Company shall, and the execution of authorization shall cause its Subsidiaries to, and representation letters referred shall use its reasonable best efforts to in Section 5.22(a)(ii), incur any Liability (or cause their respective directorsRepresentatives to, officers or employees provide all cooperation reasonably requested by Parent in connection with the Debt Tender Offers, including using reasonable best efforts in assisting with the preparation of the offer to incur purchase, consent solicitation statement, letter of transmittal and/or form of consent. The Company (A) shall waive any Liability) with respect of the conditions to the cooperation described in this Section 5.22, Debt Tender Offers (iiiother than the occurrence of the Closing) approve or enter into and make any agreement or binding commitment, (iv) provide (or change to have any of their respective Representatives provide) any opinions or reliance lettersthe Debt Tender Offers, in each case, with respect as may be reasonably requested by Parent and (B) shall not, without the written consent of Parent, waive any condition to the Debt Tender Offers or make any changes to the Debt Tender Offers. Parent shall ensure that, at the Effective Time, the Company has all funds necessary to pay for such notes that have been properly tendered and not withdrawn pursuant to the Debt Tender Offers. The dealer manager, solicitation agent, information agent, depositary, paying agent and/or any other agents retained in connection with the Financing or Debt Tender Offers shall be selected by Parent and shall be reasonably acceptable to the Sale Leaseback FinancingCompany. Without limiting Section 5.11(e), or the Company shall enter into customary agreements (vincluding indemnities) execute or deliver, or take with such parties so selected and on terms and conditions acceptable to Parent. Parent acknowledges that the consummation of any corporate or other action Debt Tender Offer is not a condition to adopt or approve, any documents, agreement, certificate or instrument with Closing.
(ii) With respect to the FinancingExisting Notes, including any pledge if requested by Parent or security documents or closing certificates (other than (x) the execution of authorization Merger Sub in writing on a timely basis, and representation letters referred to in Section 5.22(a)(ii) and (y) solely to the extent necessary permitted by the documents governing such securities, in lieu of commencing a Debt Tender Offer for such series, or in addition thereto, the valid and enforceable execution Company shall, to the extent permitted by the applicable indenture or other documents governing such series of definitive Financing documentationsecurities, (A) issue a notice of redemption at least 30 days but not more than 60 days before the redemption date agreed with Parent (or such cooperation later time as is may be required by such indenture, other governing documents or law) for all of the outstanding aggregate principal amount of the Existing Notes pursuant to the requisite provisions of such indenture or other governing documents or (B) take any actions reasonably requested by Parent that are customary or necessary to facilitate the adoption redemption, defeasance, satisfaction and/or discharge of resolutions the Existing Notes pursuant to the applicable section of such governing documents, and consentsshall redeem, defease or satisfy and/or discharge, as applicable), such series in accordance with the terms of such governing documents at the Effective Time; provided provided, that any such redemption, defeasance, satisfaction and/or discharge must be conditioned on the occurrence of the Closing and shall be required only to the extent such condition is permitted by the documents governing the applicable debt securities. Parent shall only request the Company to conduct any transaction contemplated by this Section 5.11(d)(ii) in compliance with the documents governing the applicable debt securities and applicable federal securities Laws. The Company, and its counsel, shall be given a reasonable opportunity to review documentation with respect to any redemption, defeasance, satisfaction and/or discharge of the Existing Notes before it is distributed to holders of the Existing Notes or filed with the SEC, as applicable, and Parent and Merger Sub shall give due consideration to any reasonable additions, deletions or changes suggested thereto by the Company or its counsel. Parent shall ensure that, at the Effective Time, the Company has all funds necessary in connection with any such redemption, defeasance, satisfaction and/or discharge. Parent acknowledges that the foregoing clause (y) shall not prevent consummation of any redemption, defeasance, satisfaction and/or discharge of the officers or directors of any Purchased Company who will remain officers and/or directors of Existing Notes is not a Purchased Company immediately following the Closing from executing documents, agreements, resolutions, certificates and instruments that do not become effective until the condition to Closing.
(de) Buyer Parent shall indemnify and hold harmless Seller the Company and its AffiliatesSubsidiaries, and each of their respective directors, officers, employees, agents and other Representatives Representatives, from and against any and all Liabilities liabilities, costs or expenses suffered or incurred in connection with their cooperation with the arrangement arrangement, syndication and consummation of the Debt Financing or the Sale Leaseback Financing or any assistance or activities provided in connection therewith (other than historical information relating to the Business provided by Seller or its Affiliates in writing for the purpose of arranging Financing, the Debt Financing)Tender Offers and any redemption, defeasance, satisfaction and/or discharge of the Existing Notes pursuant to this Section 5.11; provided, however, that the foregoing shall not apply in Sellerthe Company’s or its Affiliates’ Subsidiaries’, or other any of their respective Representatives’ ’, willful misconduct or gross negligence. Buyer Parent shall promptly reimburse Seller and its Affiliates the Company for all documented out-of-pocket third party costs and expenses incurred by Seller and its Affiliates the Company in connection with such cooperationits cooperation pursuant to this Section 5.11.
(ef) Notwithstanding anything to the contrary herein, it is understood and agreed that the condition set forth in Section 8.02(a), as applied to Seller’s obligations under this Section 5.22, shall be deemed to be satisfied unless the Financing or the Sale Leaseback Financing has not been obtained as a result of Sellers’s breach of its obligations under this Section 5.22 to the extent such breach impairs or adversely affects the Financing or the Sale Leaseback Financing, including the execution, timing and pricing or cost thereof, in a material manner. Buyer Parent acknowledges and agrees that obtaining the Financing and the Sale Leaseback Financing are is not conditions a condition to Closing. None of Seller or any of its Affiliates shall have any obligations under this Section 5.22 following the consummation of the transactions contemplated hereby.
Appears in 1 contract
Samples: Merger Agreement (Accuride Corp)
Debt Financing Cooperation. (a) Prior to Closing and subject in all respects to Section 4.12(b), Seller shallwill, and shall will use all reasonable best efforts Commercially Reasonable Efforts to cause its Affiliates and Representatives to, provide to Parent and Buyer, in each case at the sole cost and expense of Parent and Buyer, upon reasonable notice and on a timely basis, such cooperation as may be reasonably requested by Parent, Buyer, or the Debt Financing Sources to assist Buyer and Parent in causing the conditions described in the Debt Financing Commitment that relate to any information about Seller, the Business, or the Acquired Assets with respect to pre-Closing periods to be satisfied and all other commercially reasonable cooperation as is reasonably necessary or requested by Parent, Buyer, or the Debt Financing Sources in connection with the arrangement of obtaining, arranging, and consummating the Debt Financing as is reasonably requested by Buyer; provided in accordance with its terms, including cooperation that Seller and its Affiliates shall in no event be required to provide such assistance that shall unreasonably interfere with their respective business operations. Such assistance shall include, without limitation, the following, each of which shall be at Buyer’s request with reasonably practicable prior notice and at Buyer’s sole cost and expenseconsists of:
(i) furnishing providing Parent and Buyer and its Financing Sources as promptly as reasonably practicable with (x) the financial statements and pro forma financial information referred to in the Commitment Letters (as in effect as of the date hereof) and (y) such other pertinent and customary readily available financial and other information customarily delivered regarding the Business and Acquired Assets as may be necessary in connection with any Debt Financing or as otherwise reasonably requested by Parent or Buyer in connection therewith, including furnishing Parent, Buyer’s preparation , and the sources of a customary bank book, confidential information memorandum, lender presentations, business projections and similar documents for financings that are similar to the Debt Financing and other marketing materials customarily used in connection with the syndication financial information set forth in Exhibit C of financings that are similar to the Debt Financing reasonably requested by Buyer (including with respect to acquired entities) in order to market, syndicate and consummate the Debt Financing, and promptly provide Parent with any supplements to such information requested by Buyer pursuant to this clause (i)Commitment;
(ii) participation by the senior management team of the Business in the marketing activities undertaken in connection with the marketing of the Debt Financing, including (A) assisting in the preparation of a customary bank book, confidential information memorandum, lender presentations, business projections furnishing Parent and similar documents (B) a reasonable number of meetings with prospective lenders or debt investors, sessions with rating agencies for the Debt Financing and due diligence sessions and otherwise assisting in marketing efforts related to the Debt Financing including, without limitation, direct contact between senior management and representatives of the Business, on the one hand, and the financing sources, potential lenders and investors for the Debt Financing (including, without limitation, the Financing Sources), on the other hand; (C) providing to Buyer from time to time information regarding the Business reasonably requested by the financing sources (including, without limitation, the Financing Sources) and assisting with the preparation of appropriate and customary materials for rating agency presentations, offering and syndication documents (including prospectuses, private placement memoranda, lender and investor presentations, bank information memoranda and similar documents), (D) taking reasonable corporate actions, subject to and only effective upon the occurrence of the Closing, reasonably necessary to permit the consummation of the Debt Financing; (E) providing customary authorization and/or representation letters in connection with the distribution of the bank information memoranda contemplated by the Debt Commitment Letter to prospective lenders and identifying any portion of the information therein that constitutes material non-public information regarding the Business, Seller or its Subsidiaries; provided that such letters and confirmations expressly state that (x) Seller shall not have any liability of any kind or nature resulting from the use of information in connection with their cooperation with arranging the Debt Financing and (y) the recipient of such letters of authorization shall be entitled to rely only on the representations and warranties contained in the Debt Financing Documents; (F) assisting with the preparation and negotiation of, and facilitating the execution and delivery by the appropriate officers of any Purchased Company of, loan agreements, pledge and security documents and other definitive documents and/or certificates contemplated by the Debt Commitment Letter; (G) have a senior financial officer of any Purchased Company execute and deliver to the Financing Sources a solvency certificate in substantially the form attached to the Debt Commitment Letter; (H) cooperating in the replacement or backstop of any outstanding letters of credit issued for the account of the Business or any Purchased Subsidiaries or any joint venture thereof; (I) furnish Buyer and the Financing Sources at least five Business Days prior to the Closing Date promptly with all documentation and other information as reasonably requested by Parent or Buyer within five Business Days following written request therefor from Parent or Buyer in connection with respect to the Business and any Purchased Subsidiaries required by the such Debt Commitment Letter required Financing under applicable “know your customer” and anti-money laundering laws, rules and regulations, including the U.S. PATRIOT Act to the extent requested not less than 10 days prior to the Closing Date; (J) consenting to the use of the logos of the Business so long as such use is not reasonably likely to harm or disparage the Business or its reputation, goodwill, products, services, offerings or intellectual property rights; (K) obtaining customary payoff letters and related documents and instruments relating to the repayment of any exiting third party indebtedness for borrowed money required by the Debt Commitment Letter to be repaid on or coincidental with Closing; and (L) supplementing the information covered by this Section 5.22(a)(ii) on a current basis if such supplement is necessary to ensure that such information does not contain an untrue statement of a material fact or omit to state any material fact necessary to make such information not misleading; and;
(iii) taking such actions as are reasonably requested by Buyer or its Financing Sources making appropriate officers and members of senior management of Seller available to facilitate the satisfaction on (1) participate in a timely basis reasonable number of all Financing Conditions that are within its control.
(b) Seller will use its reasonable best effortsmeetings, presentations, due diligence sessions, and will cause its Subsidiaries sessions with prospective lenders in connection with the Debt Financing; and (2) assist with the preparation of materials for bank information memoranda and similar documents required in connection with the arranging, obtaining, and consummation of the Debt 05466425.6 39 Financing, which includes the consent to the reasonable use their reasonable best efforts, to provide to Buyer and its Financing Sources such information as may be necessary so that the information prepared of Seller’s logos in connection with the Debt Financing (and will, upon request of Buyer, provide Buyer with electronic versions of such logos for such use); and
(iv) assisting Parent and Buyer in connection with the preparation and registration of any pledge and security documents, supplemental indentures, currency or interest hedging arrangements, and other definitive financing agreements or documents (including any related schedules, annexes, and exhibits thereto) as may be reasonably requested by Parent, Buyer, or the marketing thereof) is complete Debt Financing Sources, and correct in all material respects otherwise reasonably facilitating the pledging of collateral and does not contain any untrue statement the granting of a material fact or omit to state a material fact necessary to make the statements contained therein, security interests in the light of Acquired Assets with respect to the circumstances under which Debt Financing, it being understood that such statements are made, documents will not misleadingbe recorded or take effect until the Closing.
(cb) Seller shall have Notwithstanding the right to review and comment on marketing materials related foregoing or anything else to the Debt Financing prior to the dissemination of such materials to potential lenders or other counterparties to any proposed financing transaction (or filing with any Governmental Authority); provided, that Seller shall communicate in writing their comments, if any, to Buyer and its counsel within a reasonable period of time under the circumstances and consistent with the time accorded to other participants who were asked to review and comment on such materials. Notwithstanding anything contrary in this Section 5.22 to the contraryAgreement, (i) neither Seller nor any of its Affiliates shall or Representatives will be required to (i) pay any commitment fee or similar fee, (ii) except in the case of the Purchased Companies following the Closing and the execution of authorization and representation letters referred to in Section 5.22(a)(ii), incur any Liability (or cause their respective directors, officers or employees to incur any Liability) with respect to the cooperation described in this Section 5.22, (iii) approve execute or enter into any agreement certificate, instrument, Contract, or binding commitment, (iv) provide (or to have any of their respective Representatives provide) any opinions or reliance letters, in each case, with respect to or other document in connection with the Financing or the Sale Leaseback Financing, or (v) execute or deliver, or take any corporate or other action to adopt or approve, any documents, agreement, certificate or instrument with respect to the Financing, including any pledge or security documents or closing certificates (other than (x) the execution of authorization and representation letters referred to solvency certificate in Section 5.22(a)(ii) and (y) to the extent necessary for the valid and enforceable execution of definitive Financing documentation, such cooperation as is reasonably necessary to facilitate the adoption of resolutions and consents, as applicable); provided that the foregoing clause (y) shall not prevent any of the officers or directors of any Purchased Company who will remain officers and/or directors of a Purchased Company immediately following the Closing from executing documents, agreements, resolutions, certificates and instruments that do not become effective until the Closing.
(d) Buyer shall indemnify and hold harmless Seller and its Affiliates, and each of their respective directors, officers, employees, agents and other Representatives from and against any and all Liabilities suffered or incurred in connection with the arrangement of the Debt Financing or the Sale Leaseback Financing or any assistance or activities provided in connection therewith (other than historical information relating to the Business provided by Seller or its Affiliates in writing for the purpose of arranging the Debt Financing); provided, howevercase, that the foregoing shall is not apply in Seller’s or its Affiliates’ contingent upon Closing; (ii) nothing herein will require cooperation or other Representatives’ willful misconduct actions or gross negligence. Buyer shall promptly reimburse Seller and its Affiliates for all documented out-of-pocket third party costs incurred by Seller and its Affiliates in connection with such cooperation.
(e) Notwithstanding anything to efforts on the contrary herein, it is understood and agreed that the condition set forth in Section 8.02(a), as applied to Seller’s obligations under this Section 5.22, shall be deemed to be satisfied unless the Financing or the Sale Leaseback Financing has not been obtained as a result of Sellers’s breach of its obligations under this Section 5.22 to the extent such breach impairs or adversely affects the Financing or the Sale Leaseback Financing, including the execution, timing and pricing or cost thereof, in a material manner. Buyer acknowledges and agrees that obtaining the Financing and the Sale Leaseback Financing are not conditions to Closing. None part of Seller or any of its Affiliates or Representatives in connection with the Financing to the extent it would interfere unreasonably with the business or operations of Seller or its Affiliates; (iii) neither Seller nor any of its Affiliates or Representatives will be required to pay any commitment or other similar fee, to incur any other Liability, or to enter into any Contract or other instrument or document (including grants of security interests or pledging of collateral) in connection with the Debt Financing that is not contingent upon Closing; and (iv) nothing herein will require Seller or any of its Affiliates or Representatives to adopt resolutions approving or otherwise approve or execute the Contracts, documents, or instruments pursuant to which the Debt Financing is made.
(c) Prior to the Closing, Buyer and Parent shall, and shall have cause their respective Affiliates to (and use Commercially Reasonable Efforts to cause their respective Representatives to), hold in confidence and not disclose to any obligations under Person other than their respective legal, Tax, accounting, banking, or other professional advisers and the Debt Financing Sources or any Debt Financing Sources Related Parties, any information furnished to or obtained by Parent, Buyer, or the sources of the Financing pursuant to this Section 5.22 following 4.12 (excluding any such information that otherwise is or becomes generally available to the consummation public other than as a result of disclosure by Parent, Buyer, or any of their respective Affiliates or Representatives in violation of this Section 4.12). If either Buyer, Parent, or any of their respective Affiliates or Representatives are compelled to disclose any such information by judicial or administrative Proceeding (but specifically excluding any disclosure required by applicable Law), Buyer and Parent shall notify Buyer and shall disclose only that portion of such information that Buyer or Parent is advised by its counsel (including in-house counsel) is legally required to be disclosed. Buyer and Parent shall cooperate with Seller, at Seller’s sole expense, to obtain an appropriate protective Order or other reasonable assurance that confidential treatment will be accorded such information. 05466425.6 40
(d) Promptly upon termination of this Agreement pursuant to Section 6.1 (other than pursuant to Section 6.1(c)) and notwithstanding Section 8.1, Buyer and Parent will reimburse Seller for any and all reasonable and documented out-of-pocket costs (including reasonable attorneys’ fees) incurred by any of them in connection with their obligations pursuant to this Section 4.12; provided that Seller, and not Parent and Buyer, will be responsible for (i) fees payable to existing legal, financial, or other advisors of Seller and its Representatives with respect to services provided on or prior to the Closing, (ii) any ordinary course amounts payable to existing employees of or consultants or advisors to Seller with respect to services provided on or prior to the Closing, and (iii) any amounts that would have been incurred in connection with the Transactions regardless of the transactions contemplated herebyDebt Financing (including the preparation, execution, and delivery of financial information and the Lien Release Letters), except, in each case with respect to clauses (ii) or (iii), to the extent such amounts are included as Current Liabilities for purposes of the purchase price adjustments in Section 1.3.
Appears in 1 contract
Samples: Asset Purchase Agreement (Priority Technology Holdings, Inc.)
