Financing Assistance. (a) The Company shall, and shall cause its Subsidiaries to, and shall use its commercially reasonable efforts to cause each of their respective Representatives (including legal, tax, regulatory and accounting advisors) to, provide such cooperation as may be reasonably requested by Parent in connection with the Debt Financing (provided that such cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries), which cooperation shall, to the extent requested, include: (i) as promptly as reasonably practicable and in any event no later than the tenth Business Day preceding the Closing Date (such date, the “Delivery Deadline”) provide Parent and the Financing Sources with (A) all historical consolidated balance sheets and related audited and unaudited statements of income, comprehensive income, shareholders’ equity and cash flows of the Company and other historical financial information regarding the Company and its Subsidiaries, in either case required to be provided to the Financing Sources by the terms of any commitment letter or agreement entered into with any Financing Source, (B) audited consolidated balance sheets and related audited statements of income, comprehensive income, shareholders’ equity and cash flows of the Company for each of the three fiscal years most recently ended more than 90 days prior to the Closing Date, and unaudited consolidated balance sheets and related unaudited statements of income, comprehensive income, shareholders’ equity and cash flows of the Company for each subsequent fiscal quarter ended more than 45 days prior to the Closing Date, all such audited and unaudited statements complying with the requirements of Form F-4 for persons being acquired and Regulation S-X under the Securities Act for a non-issuer entity whose financial statements are filed in a registered offering of securities solely to satisfy Rule 3-05 of Regulation S-X, without giving effect to Rule 3-05(b)(4) of Regulation S-X (clauses (A) and (B), collectively, the “Required Financial Information”) and (C) such other historical financial and other information regarding the Company and its Subsidiaries as Parent may reasonably request; (ii) as promptly as reasonably practicable, and in any event no later than the Delivery Deadline, provide Parent and the Financing Sources with such information (financial or otherwise) relating to the Company and its Subsidiaries (including information to be used in the preparation of an information package regarding the business, operations and financial condition of Parent and the Company) reasonably necessary for Parent’s preparation of customary offering or information documents to be used for the completion of the Debt Financing; (iii) cooperate and assist with the reasonable due diligence, rating agency processes and syndication and marketing efforts of Parent, its Representatives and the Financing Sources, including participating in a reasonable number of meetings (including one-on-one meetings with representatives of the Financing Sources, prospective lenders and prospective investors, on the one hand, and senior management and Representatives of the Company, in each case with appropriate seniority and expertise, on the other hand), due diligence sessions (including accounting due diligence sessions), drafting sessions and road shows, at reasonable times and on reasonable notice; provided that the Company and its Representatives will only be required to travel or attend any in person meetings for a period not to exceed five Business Days and each such Representative shall be reasonably compensated for his or her reasonable costs and expenses; (iv) assist Parent in preparing customary offering memoranda, rating agency presentations, lender and investor presentations, confidential information memoranda, private placement memoranda, prospectuses, filings with the SEC and other similar documents prepared in connection with the Debt Financing, including delivery and consenting to the inclusion or incorporation of the Required Financial Information and all other historical financial and other information regarding the Company and its Subsidiaries reasonably requested by Parent for use in any offering or information documents to be prepared in connection with the Debt Financing; (v) make available, on a customary and reasonable basis and upon reasonable notice, appropriate personnel, including Representatives of the Company and its Subsidiaries, documents and information relating to the Company and its Subsidiaries, in each case, as may be reasonably requested by Parent, the Financing Sources, or as may be requested by the SEC in connection with the completion of the Debt Financing; (vi) provide to Parent and the Financing Sources promptly, and in any event at least five Business Days prior to the Closing Date, all documentation and other information about the Company and its Affiliates requested in writing by Parent and required by the Financing Sources or regulatory authorities with respect to the Debt Financing under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act; (vii) (A) request customary comfort letters from the Company’s independent registered public accounting firm (including customary “negative assurances”), (B) request the Company’s independent registered public accounting firm to consent to the inclusion or incorporation of their audit reports with respect to the Required Financial Information in any filing or registration statement of Parent with the SEC or any prospectus, offering memoranda, private placement memoranda, marketing material or similar documentation, including by providing customary representation letters, and (C) request the Company’s independent registered public accounting firm to reasonably cooperate with Parent and its Representatives, including by participating in accounting due diligence sessions at times and at locations reasonably acceptable to the Company and its independent registered public accounting firm; (viii) subject to customary confidentiality provisions, provide customary authorization letters (in a form and on terms reasonably acceptable to the Company) to the Financing Sources authorizing the distribution of information to prospective lenders or investors, including, if requested, containing a representation to the Financing Sources that the public side versions of such documents, if any, do not include material non-public information about the Company or its Affiliates; (ix) deliver notices of prepayment and/or notices for termination of commitments within the time periods required by the Credit Agreement and obtain payoff letters, lien terminations and releases and instruments of discharge, all in customary form, to be delivered at Closing providing for the payoff in full on the Closing Date of any amounts due under the Credit Agreement and for the termination of all obligations thereunder (other than other such obligations under the Credit Agreement that expressly by their terms survive such payoff, discharge and termination) and releasing, discharging and terminating any liens and other security interests created under any security documents in connection with the Credit Agreement and all related obligations thereunder and under each security documents (other than obligations under such security documents that expressly by their terms survive such payoff, discharge and termination); (x) assisting in the preparation of, and executing and delivering, one or more credit agreements, unsecured notes, indentures and other definitive financing documents or other customary certificates (but not solvency certificates) and customary documents as may be reasonably requested by Parent which are necessary and customary in connection with the Debt Financing (which agreements, notes, indentures and other documents to which the Company is a party will be conditioned on the consummation of the Transactions); (xi) consent to the use of the trademarks, service marks and logos of the Company or any of its Subsidiaries in connection with the Debt Financing; provided that such trademarks, service marks and logos are used solely in a manner that is not intended to or is not reasonably likely to harm or disparage the Company or any of its Subsidiaries; and (xii) taking all other corporate actions, subject to the occurrence of the Closing, as may be reasonably necessary to permit the consummation of the Debt Financing. Notwithstanding the foregoing, (1) neither the Company nor any of its Subsidiaries shall be required to pay any fees, expenses or costs or incur any liability or obligations in connection with the Debt Financing, unless Parent reimburses or is required to indemnify the Company and its Subsidiaries pursuant to this Agreement or otherwise, (2) none of the Company, its Subsidiaries or their respective officers, directors or employees shall be required to execute or enter into or perform under any agreement with respect to the Debt Financing that is not contingent upon the Closing occurring or that would be effective prior to the Effective Time (other than authorization letters contemplated by Section 6.05(a)(viii)), (3) none of the Company, its Subsidiaries or their respective officers, directors or employees shall be required to deliver any certificate that such Person reasonably believes, in good faith, contains any untrue certifications or opinions, and (4) none of the Company, its Subsidiaries or their respective officers, directors or employees shall be required to provide any information the disclosure of which is prohibited or restricted under Applicable Law or the Company’s organizational documents or which is legally privileged or which is otherwise subject to the confidentiality provisions. (b) The Company shall provide the Required Financial Information, together with the other information required under Section 6.05(a), to Parent in a manner that does not contain any untrue statement of a material fact or omit to state a material fact necessary to make such information, in light of the circumstances under which the statements contained in such information were made, not misleading. The Company shall notify Parent in writing if the Company determines that (i) any untrue statement of a material fact or omission of any material fact necessary to make such information, in light of the circumstances under which the statements contained in such information were made, not misleading exists with regard to any such information, (ii) any Required Financial Information must be restated or (iii) the Company’s independent registered public accounting firm has withdrawn any audit opinion with respect to any financial statements contained in the Required Financial Information. (c) Parent shall, promptly upon written request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses (including reasonable and documented attorneys’ fees) incurred by the Company or any of its Subsidiaries in satisfying its obligations under this Section 6.05. Parent, HoldCo and Merger Sub shall, on a joint and several basis, indemnify and hold harmless the Company and its Subsidiaries and their respective Representatives (each an “Indemnified Party”) from and against any and all losses, claims, damages, liabilities, costs, reasonable attorneys’ fees, judgments, fines, penalties and amounts (including amounts paid in settlement and all interest, assessments and other charges paid or payable in connection with or in respect of any thereof), joint or several, to which such Indemnified Party may become subject, under the Securities Act, the Exchange Act, other Federal or state statutory or other laws or regulations or otherwise, insofar as such losses, claims, damages, liabilities costs, reasonable attorney’s fees, judgements fines, penalties, and amounts paid in settlement (or actions in respect thereof) arise out of or are based upon or suffered or incurred in connection with any action taken (or failure to act) by the Financing Sources, Parent, its Subsidiaries, or any of their respective Affiliates or the Company, any of its Subsidiaries or any of their respective Representatives pursuant to this Section 6.05 (other than the use of any information provided by the Company, any of its Subsidiaries or any of their respective Representatives in writing for use in connection with the Debt Financing), except to the extent such losses, claims, damages, liabilities, costs, reasonable attorneys’ fees, judgments, fines, penalties and amounts paid in settlement are determined by a final non-appealable judgment of a court of competent jurisdiction to have arisen out of, or resulted from, the gross negligence or willful misconduct of, or a Willful Breach by, the Company, any of its Subsidiaries or any of their respective Representatives.
Appears in 2 contracts
Samples: Merger Agreement (Transocean Ltd.), Merger Agreement (Transocean Ltd.)
Financing Assistance. (a) The Prior to and until the Closing, the Company shall, and shall cause use its Subsidiaries to, reasonable best efforts to and shall use its commercially reasonable best efforts to cause its Subsidiaries to use their reasonable best efforts to, and the Company and each of its Subsidiaries shall each use their reasonable best efforts to cause the respective Representatives (including legalofficers, taxemployees, regulatory agents and accounting advisors) to, provide such cooperation as may be reasonably requested by Parent in connection with the Debt Financing (provided that such cooperation does not unreasonably interfere with the ongoing operations representatives of the Company and its Subsidiaries)Subsidiaries to use their reasonable best efforts to, which cooperation shall, to the extent requested, include:
(i) as promptly as reasonably practicable and in any event no later than the tenth Business Day preceding the Closing Date (such date, the “Delivery Deadline”1) provide to Parent and the Financing Sources with Merger Sub 2, as applicable, (Ax) all historical audited consolidated balance sheets and related audited and unaudited financial statements of income, comprehensive income, shareholders’ equity and cash flows of the Company and other historical financial information regarding the Company and its Subsidiaries, in either case required to be provided to the Financing Sources by the terms of any commitment letter or agreement entered into with any Financing Source, (B) audited consolidated balance sheets and related audited statements of income, comprehensive income, shareholders’ equity and cash flows of the Company for each of covering the three fiscal years most recently ended more than 90 days prior to immediately preceding the Closing Datefor which audited consolidated financial statements are then currently available, and unaudited consolidated balance sheets and related unaudited financial statements of income, comprehensive income, shareholders’ equity and cash flows (excluding footnotes) for any regular quarterly interim fiscal period or periods of the Company for each subsequent fiscal quarter ended more than 45 days prior to after the Closing Date, all such audited and unaudited statements complying with date of the requirements most recent
A. Patriot Act of Form F-4 for persons being acquired and Regulation S-X under the Securities Act for a non-issuer entity whose financial statements are filed in a registered offering of securities solely to satisfy Rule 3-05 of Regulation S-X, without giving effect to Rule 3-05(b)(4) of Regulation S-X (clauses (A) and (B), collectively, the “Required Financial Information”) and (C) such other historical financial and other information regarding the Company and its Subsidiaries as Parent may reasonably request;
(ii) as promptly as reasonably practicable2001, and beneficial ownership regulations, but in any event no later than the Delivery Deadlineeach case, provide Parent and the Financing Sources with such information (financial or otherwise) solely as relating to the Company and its Subsidiaries (including information to be used in the preparation of an information package regarding extent requested by the business, operations and financial condition of Parent and the CompanyFinancing Sources at least ten Business Days prior to the Closing Date, which information shall be provided no later than three Business Days prior to the Closing Date and (2) provide to Parent, Merger Sub 1 and Merger Sub 2 all cooperation reasonably requested by Parent that is necessary for Parent’s preparation of customary offering or information documents to be used for the completion of the Debt Financing;
(iii) cooperate and assist reasonably required in connection with the reasonable due diligence, rating agency processes and syndication and marketing efforts of Parent, its Representatives and the Financing SourcesFinancing, including participating in a the following: (i) using reasonable number of meetings (including one-on-one meetings with representatives of the Financing Sources, prospective lenders and prospective investors, on the one hand, and senior management and Representatives of best efforts to cause the Company’s and its Subsidiaries’ senior officers and other representatives to participate in meetings and calls, in each case with appropriate seniority and expertisepresentations, on the other hand)road shows, due diligence sessions (including accounting due diligence sessions), drafting sessions and road showssessions with rating agencies, at reasonable times investors and prospective lenders on reasonable noticeadvance notice to the extent practicable; provided (ii) using reasonable best efforts to assist with the preparation of appropriate and customary materials for rating agency presentations, offering and syndication documents (including any customary offering or private placement memoranda to be prepared for any debt securities offering in connection with the Financing Commitment), bank information memoranda, business projections, customary pro forma financial statements reflecting the Combination and the Financing; provided, that such assistance will be limited to providing financial information reasonably required to allow Parent to prepare such pro forma financial statements, and any other marketing documentation and similar documents reasonably required in connection with the Financing (and executing customary representation letters in connection herewith); provided, that any such marketing materials shall reflect that one or more of Parent and its Subsidiaries will be the obligors at Closing and that the Company and its Representatives will only Subsidiaries shall have no obligations thereunder unless and until the Effective Time occurs; (iii) using reasonable best efforts to assist with the preparation of any pledge, security and other collateral documents, any loan agreement, currency or interest hedging agreement, other definitive financing documents on terms reasonably satisfactory to Parent, or other certificates, resolutions, consents or documents as may be required to travel reasonably requested by Parent and usual and customary for transactions of the type contemplated by the Financing Commitment; provided that no obligation of the Company or attend any in person meetings for a period not to exceed five Business Days and each of its Subsidiaries under any such Representative document or agreement shall be reasonably compensated for his effective or her reasonable costs and expenses;
filed in the public record until the Effective Time; (iv) assist Parent using reasonable best efforts to facilitate the pledging of collateral, provided that no pledge shall be effective or public filing be made until the Effective Time; (v) using reasonable best efforts to facilitate the pay-off of any Existing Indebtedness of the Company and its Subsidiaries and to arrange for the receipt of customary pay-off documentation evidencing the satisfaction and discharge of such Existing Indebtedness and the release of related Liens and termination of security interests with respect thereto, in preparing customary offering memorandaeach case, rating agency presentations, lender in form and investor presentations, confidential information memoranda, private placement memoranda, prospectuses, filings with the SEC and other similar documents prepared in connection with the Debt Financing, including delivery and consenting substance reasonably acceptable to the inclusion or incorporation of Financing Sources; (vi) using reasonable best efforts to furnish to Parent, Merger Sub 1 and Merger Sub 2 and the Financing Sources, as promptly as reasonably practicable, with (A) all Required Financial Information and all other historical financial Information, including, without limitation, customary pertinent financial, business and other information regarding the Company and its Subsidiaries as may be reasonably requested by Parent and including in any event the financial statements required under Paragraph 9 of Annex III of the Commitment Letter, including any additional financial information and data regarding the Company and its Subsidiaries reasonably requested by Parent for use in any offering or information documents to be prepared the Financing Sources in connection with the Debt Financing;
, (vB) make availableother financial data necessary or reasonably required to permit Parent to prepare customary pro forma financial statements in form and substance reasonably acceptable to the Financing Sources reflecting the Combination and the Financing, and (C) any supplements to the Required Information on a customary reasonably current basis to the extent that any Required Information, to the knowledge of the Company, when taken as a whole and in light of the circumstances under which such statements were made, contains any material misstatement of fact or omits to state any material fact necessary to make such information not materially misleading; (vii) [reserved]; (viii) [reserved], (ix) using reasonable basis and upon reasonable notice, appropriate personnel, including Representatives best efforts to cause the independent auditors of the Company to assist and its Subsidiariescooperate with Parent in connection with the Financing, documents including by providing consent to offering memoranda, registration statements and/or prospectus that include or incorporate the Company’s consolidated financial information and their reports thereon, and customary comfort letters (including “negative assurance” and change period comfort) with respect to financial information relating to the Company and its Subsidiaries, in each case(x) [reserved], as may be reasonably requested by Parent, (xi) using reasonable best efforts to cooperate with the Financing Sources’ due diligence requests and review, or as may be to the extent reasonably requested by the SEC in connection with the completion of the Debt Financing;
, (vixii) provide [reserved], (xiii) using reasonable best efforts to request that its independent accountants cooperate with and assist Parent in preparing customary and appropriate information packages and offering and private placement memoranda or other offering materials as the Financing Sources promptlymay reasonably request for use in connection with the offering and/or syndication of debt securities, loan participations and other matters contemplated with respect to the Financing, in obtaining third party consents in connection with such financing, and in any event at least five Business Days prior to the Closing Date, all documentation and other information about extinguishing Existing Indebtedness for borrowed money of the Company and its Affiliates Subsidiaries and releasing liens securing such Existing Indebtedness, in each case to take effect at the Effective Time, (xiv) [reserved], and (xv) using reasonable best efforts to take such actions as are reasonably requested in writing by the Parent and required by or the Financing Sources or regulatory authorities with respect to facilitate the satisfaction of all conditions precedent to obtaining the Financing to the Debt Financing under applicable “know your customer” extent within the control of the Company (including delivery of the stock and anti-money laundering rules other equity certificates of the Company and regulationsits Subsidiaries to the Parent); provided that until the Effective Time occurs, including neither the PATRIOT Act;
(vii) Company nor any of its Subsidiaries shall (A) request customary comfort letters from be required to pay any fees, expenses or other amounts in connection with the Company’s independent registered public accounting firm (including customary “negative assurances”)Financing, (B) request the Company’s independent registered public accounting firm to consent have any liability or obligation under any loan agreement or any related document or any other agreement or document related to the inclusion Financing or incorporation of their audit reports with respect to the Required Financial Information in any filing or registration statement of Parent with the SEC or any prospectus, offering memoranda, private placement memoranda, marketing material or similar documentation, including by providing customary representation letters, and (C) request be required to incur any liability in connection with the Company’s independent registered public accounting firm to reasonably cooperate with Parent and its RepresentativesFinancing. For the avoidance of doubt, including by participating in accounting due diligence sessions at times and at locations reasonably acceptable to the Board of Directors of the Company and each of its independent registered public accounting firm;Subsidiaries, in each case as constituted prior to the Effective Time, shall not be required to adopt any resolutions or take any other action in connection with the authorization of any of the Financing, or otherwise contingent upon the occurrence of the Effective Time.
(viiib) subject to customary confidentiality provisions, provide customary authorization letters (in a form and on terms reasonably acceptable to the Company) to the Financing Sources authorizing the distribution of information to prospective lenders or investors, including, if requested, containing a representation to the Financing Sources that the public side versions of such documents, if any, do not include All material non-public information about regarding the Company or and its Affiliates;
Subsidiaries provided to Parent, Merger Sub 1, Merger Sub 2 and their respective Representatives pursuant to this Section 7.14 shall be kept confidential by them in accordance with the Confidentiality Agreement. The Company hereby consents to (ixi) deliver notices of prepayment and/or notices for termination of commitments within the time periods required by the Credit Agreement and obtain payoff letters, lien terminations and releases and instruments of discharge, all in customary form, to be delivered at Closing providing for the payoff in full on the Closing Date of any amounts due under the Credit Agreement and for the termination use of all obligations thereunder (other than other such obligations under the Credit Agreement that expressly by their terms survive such payoff, discharge of its and termination) and releasing, discharging and terminating any liens and other security interests created under any security documents its Subsidiaries’ logos in connection with the Credit Agreement and all related obligations thereunder and under each security documents (other than obligations under such security documents that expressly by their terms survive such payoff, discharge and termination);
(x) assisting in the preparation of, and executing and delivering, one or more credit agreements, unsecured notes, indentures and other definitive financing documents or other customary certificates (but not solvency certificates) and customary documents as may be reasonably requested by Parent which are necessary and customary in connection with the Debt Financing (which agreements, notes, indentures and other documents to which the Company is a party will be conditioned on the consummation of the Transactions);
(xi) consent to the use of the trademarks, service marks and logos of the Company or any of its Subsidiaries in connection with the Debt Financing; Financing; provided that such trademarks, service marks and logos are used solely in a manner that is not intended to or nor is not reasonably likely to harm or disparage the Company or any of its Subsidiaries; and
(xii) taking all other corporate actions, subject to the occurrence reputation or goodwill of the Closing, as may be reasonably necessary to permit the consummation of the Debt Financing. Notwithstanding the foregoing, (1) neither the Company nor or any of its Subsidiaries shall be required to pay or any feesof their assets, expenses or costs or incur any liability or obligations in connection with the Debt Financing, unless Parent reimburses or is required to indemnify the Company including their logos and its Subsidiaries pursuant to this Agreement or otherwise, (2) none of the Company, its Subsidiaries or their respective officers, directors or employees shall be required to execute or enter into or perform under any agreement with respect to the Debt Financing that is not contingent upon the Closing occurring or that would be effective prior to the Effective Time (other than authorization letters contemplated by Section 6.05(a)(viii)), (3) none of the Company, its Subsidiaries or their respective officers, directors or employees shall be required to deliver any certificate that such Person reasonably believes, in good faith, contains any untrue certifications or opinions, marks and (4) none of the Company, its Subsidiaries or their respective officers, directors or employees shall be required to provide any information the disclosure of which is prohibited or restricted under Applicable Law or the Company’s organizational documents or which is legally privileged or which is otherwise subject to the confidentiality provisions.
(b) The Company shall provide the Required Financial Information, together with the other information required under Section 6.05(a), to Parent in a manner that does not contain any untrue statement of a material fact or omit to state a material fact necessary to make such information, in light of the circumstances under which the statements contained in such information were made, not misleading. The Company shall notify Parent in writing if the Company determines that (i) any untrue statement of a material fact or omission of any material fact necessary to make such information, in light of the circumstances under which the statements contained in such information were made, not misleading exists with regard to any such information, (ii) any Required Financial Information must be restated or (iii) Parent sharing confidential information regarding the Company’s independent registered public accounting firm has withdrawn any audit opinion Company with respect to any financial statements contained in Financing Sources as “representatives” of Parent under the Required Financial InformationConfidentiality Agreement.
(c) If requested by Parent, the Company shall use reasonable best efforts to, and shall cause its Subsidiaries to use reasonable best efforts to provide any other cooperation reasonably requested by Parent to facilitate the assumption by the Surviving Corporation and the Surviving Company of any or all Existing Indebtedness of the Company and/or its Subsidiaries, including the Convertible Senior Note Indentures and the Convertible Senior Notes thereunder (including, if elected by Parent, delivering such certificates or other documents and taking such actions (and using reasonable best efforts to cause the applicable lenders, agents, and/or trustees in respect thereof to take such actions) as may be required as may be required in connection therewith by the applicable credit agreements, indentures or other definitive documents governing such Indebtedness) effective as of (or at Parent’s election, following) the Effective Time.
(d) Parent shall, promptly upon written request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs fees and expenses (including reasonable professional fees and documented attorneys’ feesexpenses of accountants, legal counsel and other advisors (limited, in the case of counsel, to one primary counsel to the Company)) to the extent such costs are incurred by the Company or any of its Subsidiaries in satisfying connection with such cooperation provided by the Company, its Subsidiaries, their respective officers, employees and other representatives pursuant to the terms of this Section 7.14(d), or in connection with compliance with its obligations under this Section 6.05. Parent7.14, HoldCo and Merger Sub shall, on a joint and several basis, Parent hereby agrees to indemnify and hold harmless the Company and its Subsidiaries and their respective Representatives (each an “Indemnified Party”) officers, employees, agents and representatives from and against any and all losses, claims, damages, liabilities, costs, reasonable attorneys’ fees, judgments, fines, penalties and amounts (including amounts paid in settlement and all interest, assessments and other charges paid liabilities or payable losses suffered or incurred by them in connection with the arrangement of the Financing, any information utilized in connection therewith (other than arising from information provided by the Company or in respect its Subsidiaries) and any misuse of any thereof)the logos or marks of the Company or its Subsidiaries, joint except to the extent that such liabilities or several, to which such Indemnified Party may become subject, under the Securities Act, the Exchange Act, other Federal or state statutory or other laws or regulations or otherwise, insofar as such losses, claims, damages, liabilities costs, reasonable attorney’s fees, judgements fines, penalties, and amounts paid in settlement (or actions in respect thereof) arise losses arose out of or are based upon or suffered or incurred in connection with any action taken (or failure to act) by result from the Financing Sources, Parent, its Subsidiaries, or any willful misconduct of their respective Affiliates or the Company, any of its Subsidiaries or any of their respective Representatives representatives.
(e) From and after the date hereof and until the earlier to occur of the Closing Date or the termination of this Agreement pursuant to Article IX hereof, the Company shall promptly give written notice with particularity upon the occurrence of any “Default” or “Event of Default” that has occurred or is threatened in writing under any of the indentures governing the Convertible Senior Notes or the Existing Credit Agreement (in each case, with “Default” and “Event of Default” having the meanings provided in such document).
(f) Parent, Merger Sub 1 and Merger Sub 2 each acknowledge and agree that obtaining the Financing is not a condition to the Closing. If the Financing has not been obtained, Parent, Merger Sub 1 and Merger Sub 2 will each continue to be obligated, subject to the satisfaction or waiver of the conditions set forth in Article VIII, to consummate the Combination.
(g) The Company will be deemed have performed this Section 6.05 7.14 unless and until (other than i) Parent provides written notice (the use “Non-Cooperation Notice”) to the Company of any information provided by alleged failure to comply, or action or failure to act which could be believed to be a breach of this Section 7.14, (ii) Parent includes in such Non-Cooperation Notice reasonable detail regarding the cooperation required to cure such alleged failure (which shall not require the Company to provide any cooperation that it would not otherwise be required to provide under this Section 7.14) and (iii) the Company fails to take the actions specified in such Non-Cooperation Notice within five Business Days from receipt of such Non-Cooperation Notice. Notwithstanding anything to the contrary in this Agreement, the condition set forth in Section 8.2(b), as it applies to the Company’s obligations under this Section 7.14, any of its Subsidiaries or any of their respective Representatives in writing for use in connection with the Debt Financing), except will be deemed to the extent such losses, claims, damages, liabilities, costs, reasonable attorneys’ fees, judgments, fines, penalties and amounts paid in settlement are determined by a final non-appealable judgment of a court of competent jurisdiction to have arisen out of, or resulted from, the gross negligence or willful misconduct of, or a Willful Breach by, be satisfied if the Company’s failure to perform its obligations under this Section 7.14, any if any, did not cause the failure of its Subsidiaries or any of their respective Representativesthe Financing to be obtained.
Appears in 1 contract
Samples: Merger Agreement (Take Two Interactive Software Inc)
Financing Assistance. (a) The Prior to the Closing, the Company shall, and shall cause its Subsidiaries to, and shall use its commercially reasonable best efforts to cause each of their respective Representatives (including legal, tax, regulatory and accounting advisors) the Company Subsidiaries to, provide such cooperation as may be reasonably requested by Parent Holdco in connection with the arrangement of the Debt Financing, or if applicable, the Alternative Debt Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and its the Company Subsidiaries), which cooperation shall, including using reasonable best efforts to the extent requested, include:
(i) as promptly as reasonably practicable furnish to Holdco and in any event no later than the tenth Business Day preceding the Closing Date (such date, the “Delivery Deadline”) provide Parent Merger Sub and the Financing Sources all Required Information, (ii) participate in a reasonable and limited number of meetings, presentations and due diligence sessions with (A) all historical consolidated balance sheets and related audited and unaudited statements of income, comprehensive income, shareholders’ equity and cash flows of the Company and other historical financial information regarding the Company and its Subsidiaries, in either case required to be provided to the Financing Sources by the terms of any commitment letter or agreement entered into with any Financing Source, (B) audited consolidated balance sheets and related audited statements of income, comprehensive income, shareholders’ equity and cash flows of the Company for each of the three fiscal years most recently ended more than 90 days prior to the Closing Date, and unaudited consolidated balance sheets and related unaudited statements of income, comprehensive income, shareholders’ equity and cash flows of the Company for each subsequent fiscal quarter ended more than 45 days prior to the Closing Date, all such audited and unaudited statements complying cooperate reasonably with the requirements of Form F-4 for persons being acquired and Regulation S-X under the Securities Act for a non-issuer entity whose financial statements are filed in a registered offering of securities solely to satisfy Rule 3-05 of Regulation S-X, without giving effect to Rule 3-05(b)(4) of Regulation S-X (clauses (A) and (B), collectively, the “Required Financial Information”) and (C) such other historical financial and other information regarding the Company and its Subsidiaries as Parent may reasonably request;
(ii) as promptly as reasonably practicable, and in any event no later than the Delivery Deadline, provide Parent and the Financing Sources with such information (financial or otherwise) relating to the Company and its Subsidiaries (including information to be used in the preparation of an information package regarding the business, operations and financial condition of Parent and the Company) reasonably necessary for Parent’s preparation of customary offering or information documents to be used for the completion of the Debt Financing;
(iii) cooperate and assist with the reasonable Sources’ due diligence, rating agency processes to the extent customary and syndication and marketing efforts of Parent, its Representatives and the Financing Sources, including participating in a reasonable number of meetings (including one-on-one meetings with representatives of the Financing Sources, prospective lenders and prospective investors, on the one hand, and senior management and Representatives of the Company, in each case with appropriate seniority and expertise, on the other hand), due diligence sessions (including accounting due diligence sessions), drafting sessions and road shows, at reasonable times and on reasonable notice; provided that the Company and its Representatives will only be required to travel or attend any in person meetings for a period not to exceed five Business Days and each such Representative shall be reasonably compensated for his or her reasonable costs and expenses;
(iv) assist Parent in preparing customary offering memoranda, rating agency presentations, lender and investor presentations, confidential information memoranda, private placement memoranda, prospectuses, filings with the SEC and other similar documents prepared in connection with the Debt Financing, including delivery and consenting to the inclusion or incorporation of the Required Financial Information and all other historical financial and other information regarding the Company and its Subsidiaries reasonably requested by Parent for use in any offering or information documents to be prepared in connection with the Debt Financing;
(v) make available, on a customary and reasonable basis and upon reasonable notice, appropriate personnel, including Representatives of the Company and its Subsidiaries, documents and information relating to the Company and its Subsidiaries, in each case, as may be reasonably requested by Parent, the Financing Sources, or as may be requested by the SEC in connection with the completion of the Debt Financing;
(vi) provide to Parent and the Financing Sources promptly, and in any event at least five Business Days prior to the Closing Date, all documentation and other information about the Company and its Affiliates requested in writing by Parent and required by the Financing Sources or regulatory authorities with respect to the Debt Financing under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act;
(vii) (A) request customary comfort letters from the Company’s independent registered public accounting firm (including customary “negative assurances”), (B) request the Company’s independent registered public accounting firm to consent to the inclusion or incorporation of their audit reports with respect to the Required Financial Information in any filing or registration statement of Parent with the SEC or any prospectus, offering memoranda, private placement memoranda, marketing material or similar documentation, including by providing customary representation letters, and (C) request the Company’s independent registered public accounting firm to reasonably cooperate with Parent and its Representatives, including by participating in accounting due diligence sessions at times and at locations reasonably acceptable to the Company and its independent registered public accounting firm;
(viii) subject to customary confidentiality provisions, provide customary authorization letters (in a form and on terms reasonably acceptable to the Companyiii) to the Financing Sources authorizing extent customary and in accordance with Applicable Law, facilitate the distribution providing of information to prospective lenders or investors, including, if requested, containing guarantees and granting of a representation to the Financing Sources that the public side versions security interest (and perfection thereof) in and pledge of such documents, if any, do not include material non-public information about the Company or its Affiliates;
(ix) deliver notices of prepayment and/or notices for termination of commitments within the time periods required by the Credit Agreement collateral and obtain payoff letters, lien terminations and releases and instruments of discharge, all in customary form, to be delivered at Closing providing for the payoff in full on the Closing Date of any amounts due under the Credit Agreement and for the termination of all obligations thereunder (other than other such obligations under the Credit Agreement that expressly by their terms survive such payoff, discharge and termination) and releasing, discharging and terminating any liens and other security interests created under any security documents in connection with the Credit Agreement and all related obligations thereunder and under each security documents (other than obligations under such security documents that expressly by their terms survive such payoff, discharge and termination);
(x) assisting assist in the preparation of, and executing and deliveringdelivery at the Closing, one or more any definitive documents for the Debt Financing, including any credit agreements, unsecured indentures, notes, indentures security documents, guarantees, mortgages, certificates, and other definitive financing agreements, documents or other customary certificates (but not solvency certificates) instruments related to the Debt Financing, if applicable and customary documents as may be reasonably requested by Parent which are necessary Holdco, provided that no such definitive documents in this clause (iii) shall be effective until the Effective Time, (iv) arrange for customary payoff letters, lien terminations and customary in connection with instruments of discharge to be delivered at or prior to Closing relating to all Indebtedness to be paid off, discharged and terminated on the Closing Date, and (v) furnish all documentation and other information required by Governmental Entities under applicable “know your customer”, anti-money laundering, anti-terrorism, foreign corrupt practices and similar laws, rules and regulations of all applicable jurisdictions related to the Debt Financing (which agreementsFinancing, notesincluding the United States, indentures Cayman Islands and other documents to which the Company is a party will be conditioned on the consummation of the Transactions);
(xi) consent to the use of the trademarksPRC, service marks and logos of the Company or any of its Subsidiaries in connection with the Debt Financing; provided that such trademarks, service marks and logos are used solely in a manner that is not intended to or is not reasonably likely to harm or disparage the Company or any of its Subsidiaries; and
(xii) taking all other corporate actions, information provided hereunder shall be subject to the occurrence terms of the Closing, as may be reasonably necessary to permit the consummation of the Debt FinancingConfidentiality Agreement. Notwithstanding the foregoing, (1) neither Neither the Company nor any of its Subsidiaries shall be required required, under the provisions of this Section 8.18 or otherwise in connection with any Debt Financing, (x) to pay any feescommitment or other similar fee prior to the Effective Time, expenses or costs or (y) to incur any liability expense unless such expense is reimbursed by Holdco promptly after incurrence thereof, or obligations in connection with the Debt Financing(z) to take, unless Parent reimburses or is required commit to indemnify the Company and its Subsidiaries pursuant to this Agreement or otherwisetaking, (2) none of the Company, its Subsidiaries or their respective officers, directors or employees shall be required to execute or enter into or perform under any agreement with respect to the Debt Financing action that is not contingent upon the Closing occurring or that would be effective subject it to actual or potential liability prior to the Effective Time (other than authorization letters contemplated by Section 6.05(a)(viii))Time. Holdco shall promptly, (3) none upon the termination of the Company, its Subsidiaries or their respective officers, directors or employees shall be required to deliver any certificate that such Person reasonably believes, in good faith, contains any untrue certifications or opinions, and (4) none of the Company, its Subsidiaries or their respective officers, directors or employees shall be required to provide any information the disclosure of which is prohibited or restricted under Applicable Law or the Company’s organizational documents or which is legally privileged or which is otherwise subject to the confidentiality provisions.
(b) The Company shall provide the Required Financial Information, together with the other information required under Section 6.05(a), to Parent in a manner that does not contain any untrue statement of a material fact or omit to state a material fact necessary to make such information, in light of the circumstances under which the statements contained in such information were made, not misleading. The Company shall notify Parent in writing if the Company determines that (i) any untrue statement of a material fact or omission of any material fact necessary to make such information, in light of the circumstances under which the statements contained in such information were made, not misleading exists with regard to any such information, (ii) any Required Financial Information must be restated or (iii) the Company’s independent registered public accounting firm has withdrawn any audit opinion with respect to any financial statements contained in the Required Financial Information.
(c) Parent shall, promptly upon written request by the Companythis Agreement, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses (including reasonable and documented attorneys’ fees) incurred by the Company or any of its Subsidiaries in satisfying its obligations under connection with the cooperation of the Company and the Company Subsidiaries contemplated by this Section 6.05. Parent, HoldCo 8.18 and Merger Sub shall, on a joint and several basis, shall indemnify and hold harmless the Company, the Company and its Subsidiaries and their respective Representatives (each an “Indemnified Party”) from and against any and all losses, claims, damages, liabilities, costs, reasonable attorneys’ fees, judgments, fines, penalties and amounts (including amounts paid in settlement and all interest, assessments and other charges paid liabilities or payable in connection with or in respect of any thereof), joint or several, to which such Indemnified Party may become subject, under the Securities Act, the Exchange Act, other Federal or state statutory or other laws or regulations or otherwise, insofar as such losses, claims, damages, liabilities costs, reasonable attorney’s fees, judgements fines, penalties, and amounts paid in settlement (or actions in respect thereof) arise out of or are based upon or losses suffered or incurred in connection with any action taken (or failure to act) by the Financing Sources, Parent, its Subsidiaries, or any of their respective Affiliates or the Company, any of its Subsidiaries or any of their respective Representatives pursuant to this Section 6.05 (other than the use of any information provided by the Company, any of its Subsidiaries or any of their respective Representatives in writing for use them in connection with the arrangement of the Debt Financing), or if applicable, the Alternative Debt Financing, and any information used in connection therewith, except to in the extent event such losses, claims, damages, liabilities, costs, reasonable attorneys’ fees, judgments, fines, penalties and amounts paid in settlement are determined by a final non-appealable judgment liabilities or losses arose out of a court of competent jurisdiction to have arisen out of, or resulted from, result from the gross negligence or willful misconduct of, or a Willful Breach by, of the Company, any of its the Company Subsidiaries or any of their respective Representatives. Table of Contents
(b) Holdco and Merger Sub acknowledge and agree that the Company and the Company Subsidiaries and their respective Representatives shall not, prior to the Effective Time, incur any liability to any person under any Debt Financing or Alternative Debt Financing that Holdco and Merger Sub may raise in connection with the transactions contemplated hereby.
Appears in 1 contract
Financing Assistance. (a) The Company shallPrior to the Closing (or the earlier termination of this Agreement pursuant to Article 10), subject to the limitations set forth below, and shall cause its Subsidiaries tounless otherwise agreed in writing by Buyer, the Company agrees to use reasonable best efforts to provide, and shall use its commercially reasonable efforts to cause each of its Subsidiaries and its and their respective Representatives (including legalofficers, taxdirectors, regulatory employees and accounting advisors) torepresentatives to provide, provide such cooperation in connection with the arrangement of the Financing as may be reasonably requested by Parent Buyer in connection with Buyer’s arrangement of the Debt Financing (provided that such cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries)Financing, which cooperation shall, to the extent requested, includeincluding:
(iA) as promptly as reasonably practicable and in any event no later than the tenth Business Day preceding the Closing Date (such date, the “Delivery Deadline”) provide Parent furnish Buyer and the Debt Financing Sources with (Ax) all historical consolidated balance sheets and related audited and unaudited the financial statements of income, comprehensive income, shareholders’ equity and cash flows of the Company and other historical financial information regarding the Company and its Subsidiaries, required by paragraph 5 in either case required to be provided Exhibit C to the Financing Sources by Debt Commitment Letter as in effect on the terms of any commitment letter or agreement entered into with any Financing Source, date hereof in the time frames contemplated thereby (B) audited consolidated balance sheets and related audited statements of income, comprehensive income, shareholders’ equity and cash flows of the Company for each of the three fiscal years most recently ended more than 90 days prior to the Closing Date, and unaudited consolidated balance sheets and related unaudited statements of income, comprehensive income, shareholders’ equity and cash flows of the Company for each subsequent fiscal quarter ended more than 45 days prior to the Closing Date, all such audited and unaudited statements complying with the requirements of Form F-4 for persons being acquired and Regulation S-X under the Securities Act for a non-issuer entity whose financial statements are filed in a registered offering of securities solely to satisfy Rule 3-05 of Regulation S-X, without giving effect to Rule 3-05(b)(4) of Regulation S-X (clauses (A) and (B), collectively, the “Required Financial Information”) and (Cy) such other historical financial and other pertinent information regarding the Company and its Subsidiaries as Parent may be reasonably request;
(ii) as promptly as reasonably practicable, requested by Buyer and in any event no later than that is customarily needed for financings of the Delivery Deadline, provide Parent and type contemplated by the Financing Sources with such information (financial or otherwise) relating to the Company and its Subsidiaries Debt Commitment Letter (including information to be used in the preparation delivery of an information package regarding the business, operations and financial condition of Parent and the Company) reasonably necessary for Parent’s preparation of customary offering or information documents to be used for the completion of the Debt Financing;
(iii) cooperate and assist with the reasonable due diligence, rating agency processes and syndication and marketing efforts of Parent, its Representatives and the Financing Sources, including participating in a reasonable number of meetings (including one-on-one meetings with representatives of the Financing Sources, prospective lenders and prospective investors, on the one hand, and senior management and Representatives of the Company, in each case with appropriate seniority and expertise, on the other hand), due diligence sessions (including accounting due diligence sessions), drafting sessions and road shows, at reasonable times and on reasonable notice; provided that the Company and its Representatives will only be required to travel or attend any in person meetings for a period not to exceed five Business Days and each such Representative shall be reasonably compensated for his or her reasonable costs and expenses;
(iv) assist Parent in preparing customary offering memoranda, rating agency presentations, lender and investor presentations, confidential information memoranda, private placement memoranda, prospectuses, filings with the SEC and other similar documents prepared in connection with the Debt Financing, including delivery and consenting to the inclusion or incorporation of the Required Financial Information and all other historical financial and other information regarding the Company and its Subsidiaries reasonably as is required or otherwise requested by Parent Buyer in order for use Buyer to produce the pro forma financial statements contemplated by paragraph 6 in any offering or information documents Exhibit C to be prepared the Debt Commitment Letter as in effect on the date hereof, (B) reasonably assist with the preparation of the pro forma financial statements required by paragraph 6 in Exhibit C to the Debt Commitment Letter and other projections required in connection with the Debt Financing and (C) promptly after obtaining knowledge thereof informing Buyer if, to the Company’s knowledge, there exist any facts that would likely require the restatement of such financial statements for such financial statements to comply with GAAP;
(ii) participate in a reasonable number of bank meetings, due diligence sessions and sessions with ratings agencies in connection with any of such financing;
(iii) reasonably assist the Parent Parties and their financing sources in the preparation of (A) confidential information memoranda and similar marketing documents, (B) materials for rating agency presentations and (C) definitive documentation for the Debt Financing;
(iv) reasonably facilitate the pledging and perfection of collateral, including assisting, in a customary manner, in the preparation of pledge and security documents, guarantees, mortgages, and other definitive financing documents and certificates delivered in connection therewith as reasonably requested by Buyer; provided that all such pledges, perfections, documents and certificates with respect to the Company, its Subsidiaries and their respective assets shall be authorized and become effective only at, or as of, the Closing;
(v) make availabledeliver a certificate of the Chief Financial Officer of the Company with respect to solvency matters substantially in the form attached as Annex I to Exhibit C to the Debt Commitment Letter as of the date hereof;
(vi) (A) deliver notices of prepayment within the time period required by the Loan Agreement and (B) at least one (1) Business Day prior to the Closing Date, the Company shall deliver to Buyer a copy of an executed payoff letter from the agent under the Loan Agreement, which payoff letter shall (i) indicate the total amount required to be paid to fully satisfy all principal, interest, prepayment premiums, penalties, breakage costs or similar obligations related to such Indebtedness as of the Closing Date (the “Loan Agreement Payoff Amount”), (ii) state that upon receipt of the Loan Agreement Payoff Amount, the Loan Agreement (including the credit facilities contemplated therein) and related instruments evidencing such credit facilities shall be terminated and (iii) state that all liens and all guarantees in connection therewith relating to the assets of the Company or any Subsidiary or Affiliate of the Company shall be, upon the payment of the Loan Agreement Payoff Amount on a the Closing Date, released (the payoff letter described in this sentence being referred to as the “Payoff Letter”);
(vii) take all corporate actions, subject to the occurrence of the Closing, reasonably requested by Buyer that are necessary or customary to permit the consummation of the Debt Financing and reasonable basis and upon reasonable noticeto permit the proceeds thereof, appropriate personnel, including Representatives of together with the cash at the Company and its Subsidiaries, documents and information relating if any (not needed for other purposes), to be made available on the Company and its Subsidiaries, in each case, as may be reasonably requested by Parent, Closing Date to consummate the Financing Sources, or as may be requested by the SEC in connection with the completion of the Debt Financing;
(vi) provide to Parent Closing and the Financing Sources promptly, and in any event at least five Business Days prior to the Closing Date, all documentation and other information about the Company and its Affiliates requested in writing transactions contemplated by Parent and required by the Financing Sources or regulatory authorities with respect to the Debt Financing under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act;
(vii) (A) request customary comfort letters from the Company’s independent registered public accounting firm (including customary “negative assurances”), (B) request the Company’s independent registered public accounting firm to consent to the inclusion or incorporation of their audit reports with respect to the Required Financial Information in any filing or registration statement of Parent with the SEC or any prospectus, offering memoranda, private placement memoranda, marketing material or similar documentation, including by providing customary representation letters, and (C) request the Company’s independent registered public accounting firm to reasonably cooperate with Parent and its Representatives, including by participating in accounting due diligence sessions at times and at locations reasonably acceptable to the Company and its independent registered public accounting firmthis Agreement;
(viii) subject to customary confidentiality provisions, provide customary authorization and representation letters (in a form and on terms reasonably acceptable to the Company) to the Debt Financing Sources authorizing the distribution of information to prospective lenders and containing a customary representation to the Debt Financing Sources that such information to the extent provided by the Company or investors, including, if requested, any of its Subsidiaries does not contain a material misstatement or omission and containing a representation to the Debt Financing Sources that the public public-side versions of such documents, if any, do not include material non-public information about the Company Blocker Seller, the Company, or any of its Affiliates;Subsidiaries, or their respective securities; and
(ix) deliver notices of prepayment and/or notices for termination of commitments within provide, at least three (3) Business Days prior to the time periods Closing Date, all documentation and other information as is required by applicable “know your customer” and anti-money laundering rules and regulations including the Credit Agreement USA PATRIOT Act to the extent requested at least five (5) Business Days prior to the anticipated Closing Date. Notwithstanding the foregoing, (x) such requested cooperation shall not unreasonably interfere with the ongoing operations of the Company and obtain payoff lettersits Subsidiaries, lien terminations and releases and instruments (y) neither the Company nor any of discharge, all in customary form, its Subsidiaries nor any of their respective Affiliates shall be required to be delivered at Closing providing for pay any commitment or other similar fee (except to the payoff in full on extent such Person is promptly reimbursed) or incur prior to the Closing Date of Company Merger Effective Time or incur or assume any amounts due under the Credit Agreement and for the termination of all obligations thereunder (other than other such obligations under the Credit Agreement that expressly by their terms survive such payoff, discharge and termination) and releasing, discharging and terminating any liens and other security interests created under any security documents liability or obligation in connection with the Credit Agreement financings contemplated by the Debt Commitment Letter, and all related obligations thereunder (z) none of the Company, its Subsidiaries and under each security documents their respective officers, directors, employees and Affiliates shall be required to authorize, execute or enter into or perform any agreement or other document (other than obligations under such security documents the authorization and representation letters contemplated above and as otherwise expressly contemplated above) with respect to the financing contemplated by the Commitment Letters that expressly by their terms survive such payoff, discharge and termination);
(x) assisting in is not contingent upon the preparation of, and executing and delivering, one Closing or more credit agreements, unsecured notes, indentures and other definitive financing documents or other customary certificates (but not solvency certificates) and customary documents as may that would be reasonably requested by Parent which are necessary and customary in connection with the Debt Financing (which agreements, notes, indentures and other documents effective prior to which the Company is a party will be conditioned on the consummation of the Transactions);
(xi) consent Merger Effective Time. In addition, notwithstanding anything in this Agreement to the use of the trademarkscontrary, service marks and logos of (v) any information regarding the Company or any of its Subsidiaries contained in any marketing materials in connection with the Debt Financing; provided Financing shall be subject to the prior review of the Company, (w) none of the directors or managers of the Company or any Subsidiary shall be required to adopt any resolutions or take other action approving the agreements, documents or instruments pursuant to which the Debt Financing is obtained, (x) the Company shall not be required to deliver or cause the delivery of any legal opinions or accountants comfort letters necessary for the Debt Financing, (y) the Company shall not be required to take any action to the extent it would result in a violation of law or loss of any privilege or (z) the Company shall not be required to deliver or cause the delivery of any audited financial information or financial information prepared in accordance with Regulation S-K or Regulation S-X of the Securities Act, or any financial information with respect to a fiscal quarter that has not yet ended or has ended less than 45 days prior to the date of such request (or, in the case of quarterly financial statements required to be delivered by the Debt Commitment Letter, 45 days prior to the Closing Date) or any monthly financial information. The Company hereby consents to the use of its and its Subsidiaries’ logos in connection with the debt financing contemplated by the Debt Commitment Letter; provided, that such trademarks, service marks and logos are used solely in a manner that is not intended to or is not nor reasonably likely to harm or disparage the Company or any of its Subsidiaries; and.
(xiib) taking all other corporate actions, subject to the occurrence of the Closing, as may be reasonably necessary to permit the consummation of the Debt Financing. Notwithstanding the foregoing, (1) neither the Company nor any of its Subsidiaries shall be required to pay any fees, expenses or costs or incur any liability or obligations in connection with the Debt Financing, unless Parent reimburses or is required to indemnify the Company and its Subsidiaries pursuant to this Agreement or otherwise, (2) none None of the Company, its Subsidiaries and its and their respective officers, directors, employees, accountants, consultants, legal counsel, agents and other representatives shall be required to take any action that would subject such Person to actual or potential liability, to bear any out-of-pocket cost or expense (except to the extent such Person is promptly reimbursed) or to pay any commitment or other similar fee or make any other payment or incur any other liability or provide or agree to provide any indemnity in connection with the financing contemplated by the Commitment Letters or their performance of their respective obligations under this Section 7.16 and any information utilized in connection therewith (in each case other than with respect to the Company and its Subsidiaries on and following the Company Merger Effective Time). If this Agreement is terminated for any reason (such that the Closing does not occur), (i) Buyer shall indemnify and hold harmless the Company, its Subsidiaries and its and their respective officers, directors, employees, accountants, consultants, legal counsel, agents and other representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred by them in connection with the arrangement of the debt financing contemplated by the Debt Commitment Letter and the performance of their respective obligations under this Section 7.16, and any information utilized in connection therewith (other than information related to the Company or its Subsidiaries provided by or on behalf of the Company or its Subsidiaries in writing specifically for use in connection with the Debt Financing offering documents), except to the extent such liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments or penalties are judged by a court of competent jurisdiction in a final judgment (not subject to appeal) to result from the bad faith, gross negligence, willful misconduct or material breach of this Agreement by the Company or its Subsidiaries or, in each case, their respective officers, directors employees, accountants, consultants, legal counsel, agents or employees shall be required to execute or enter into or perform under any agreement with respect to the Debt Financing that is not contingent upon the Closing occurring or that would be effective prior to the Effective Time (other than authorization letters contemplated by Section 6.05(a)(viii)), (3) none of the Company, its Subsidiaries or their respective officers, directors or employees shall be required to deliver any certificate that such Person reasonably believes, in good faith, contains any untrue certifications or opinionsrepresentatives, and (4) none of the Company, its Subsidiaries or their respective officers, directors or employees shall be required to provide any information the disclosure of which is prohibited or restricted under Applicable Law or the Company’s organizational documents or which is legally privileged or which is otherwise subject to the confidentiality provisions.
(b) The Company shall provide the Required Financial Information, together with the other information required under Section 6.05(a), to Parent in a manner that does not contain any untrue statement of a material fact or omit to state a material fact necessary to make such information, in light of the circumstances under which the statements contained in such information were made, not misleading. The Company shall notify Parent in writing if the Company determines that (i) any untrue statement of a material fact or omission of any material fact necessary to make such information, in light of the circumstances under which the statements contained in such information were made, not misleading exists with regard to any such information, (ii) any Required Financial Information must be restated or (iii) the Company’s independent registered public accounting firm has withdrawn any audit opinion with respect to any financial statements contained in the Required Financial Information.
(c) Parent Buyer shall, promptly upon written request by of the Company, reimburse the Company and its Subsidiaries for all reasonable and documented out-of-pocket costs and expenses (including reasonable and documented attorneys’ fees) incurred by the Company or any its Subsidiaries (including those of its Subsidiaries accountants, consultants, legal counsel, agents and other representatives) in satisfying its obligations under connection with the cooperation required by this Section 6.057.16. ParentFor the avoidance of doubt, HoldCo the parties hereto acknowledge and Merger Sub shall, on a joint and several basis, indemnify and hold harmless agree that the provisions contained in this Section 7.16 represent the sole obligation of the Company and its Subsidiaries and its and their respective Representatives (each an “Indemnified Party”) from and against any and all lossesofficers, claimsdirectors, damagesemployees, liabilitiesaccountants, costsconsultants, reasonable attorneys’ feeslegal counsel, judgments, fines, penalties and amounts (including amounts paid in settlement and all interest, assessments agents and other charges paid or payable representatives with respect to cooperation in connection with the arrangement of the Financing.
(c) In addition, (1) no action, liability or in respect obligation of any thereof), joint or several, to which such Indemnified Party may become subject, under the Securities Act, the Exchange Act, other Federal or state statutory or other laws or regulations or otherwise, insofar as such losses, claims, damages, liabilities costs, reasonable attorney’s fees, judgements fines, penalties, and amounts paid in settlement (or actions in respect thereof) arise out of or are based upon or suffered or incurred in connection with any action taken (or failure to act) by the Financing Sources, Parent, its Subsidiaries, or any of their respective Affiliates or the Company, any of its Subsidiaries or any of their respective Affiliates or Representatives pursuant to this Section 6.05 (other than any certificate, agreement, arrangement, document or instrument relating to the use of any information provided by Debt Financing will be effective until the CompanyClosing, and neither the Company nor any of its Subsidiaries will be required to take any action pursuant to any certificate, agreement, arrangement, document or any of their respective Representatives in writing for use in connection instrument (including being an issuer or other obligor with respect to the Debt Financing) that is not contingent on the occurrence of the Closing or that must be effective prior to the Closing (in each case other than the authorization and representation letters contemplated above and as otherwise expressly contemplated above), except and (2) any bank information memoranda or memoranda required in relation to the extent such lossesDebt Financing will contain disclosure and financial statements reflecting the Company or its Subsidiaries as the obligor, claims, damages, liabilities, costs, reasonable attorneys’ fees, judgments, fines, penalties and amounts paid after giving effect to the acquisition by Buyer. Nothing in settlement are determined by a final non-appealable judgment this Section 7.16 will require (A) any officer or Representative of a court of competent jurisdiction to have arisen out of, the Company or resulted from, the gross negligence or willful misconduct of, or a Willful Breach by, the Company, any of its Subsidiaries to deliver any certificate or opinion or take any other action or any other provision of their respective Representativesthis Agreement that could reasonably be expected to result in personal liability to such officer or representative, or (B) the members of the Company board as of immediately prior to the Closing to approve any financing or Contracts related thereto prior to the Closing.
(d) Buyer acknowledges and agrees that the obtaining of any Debt Financing is not a condition to Closing and reaffirms its obligation to consummate the transactions contemplated by this Agreement irrespective and independently of the availability of any Debt Financing, subject to the satisfaction or waiver of the conditions set forth in Article 8.
Appears in 1 contract
Financing Assistance. (a) The Company shall, and shall cause its Subsidiaries to, and shall use its commercially reasonable efforts to cause each of their respective Representatives its and its Subsidiaries’ officers, directors, employees, agents, and other representatives (including legalcollectively, tax, regulatory and accounting advisors“Representatives”) to, provide all cooperation that is reasonably requested by Parent to assist Parent and Merger Sub in the arrangement and consummation of the financing contemplated by the Debt Commitment Letter for the purpose of funding the payment of the Purchase Price (the “Financing”), including but not limited to (i) promptly furnishing to Parent and the Financing Sources such cooperation financial, marketing and other information and materials relating to the Company and each of its Subsidiaries that is customary or necessary for the completion of the Financing, or for the preparation of offering or information documents to be used in connection with the same; (ii) cooperating with the marketing efforts of Parent and the Financing Sources, including participation in meetings with, and delivering management reports to, the Persons acting as lead arrangers or agents for the prospective lenders and purchasers of the Financing, and attending presentations, roadshows, due diligence sessions, drafting sessions and sessions with rating agencies in connection with the Financing; (iii) delivering (A) audited consolidated balance sheets and related audited statements of comprehensive income (loss), stockholders’ equity and cash flows of the Company and its Subsidiaries (the “Audited Annual Financials”) for each of the two most recently ended fiscal years that have ended at least ninety (90) days prior to the Closing Date, and (B) unaudited consolidated balance sheets and related unaudited statements of comprehensive income (loss) and cash flows of the Company and its Subsidiaries (the “Quarterly Financials”) for each fiscal quarter beginning with the quarter ended September 30, 2015 and for any subsequent fiscal quarter that ends forty-five (45) or more calendar days prior to the Closing Date; (iv) causing the Company’s independent accountants to provide reasonable assistance to Parent consistent with their customary practice (including to consent to the use of their audit reports on the consolidated financial statements of the Company and its Subsidiaries in any materials relating to the Financing); (v) using reasonable best efforts to assist Parent in connection with the preparation of pro forma financial information and financial statements necessary or reasonably required by the Financing Sources; (vi) upon reasonable request of Parent and to the extent the same become necessary or advisable in connection with the Financing, assisting Parent to obtain waivers, consents, estoppels and approvals from other parties to material leases, encumbrances and contracts relating to the Company and its Subsidiaries (including by arranging discussions among Parent, the Company and the Financing Sources and their respective representatives with other parties to such material leases, encumbrances and contracts; provided, that such documents will not take effect until, and will be conditioned upon the occurrence of, the Effective Time); and (vii) to the extent that the Company or any of its Subsidiaries are to be party to the Financing following the occurrence of the Effective Time, (A) using reasonable best efforts to obtain customary legal opinions and executing and delivering customary closing certificates and documents at or prior to the Closing as may be reasonably requested by Parent in connection with the Debt Financing (provided Financing; provided, that such cooperation does documents will not unreasonably interfere with take effect until, and will be conditioned upon the ongoing operations of the Company and its Subsidiaries), which cooperation shall, to the extent requested, include:
(i) as promptly as reasonably practicable and in any event no later than the tenth Business Day preceding the Closing Date (such dateoccurrence of, the “Delivery Deadline”) provide Parent and the Financing Sources with (A) all historical consolidated balance sheets and related audited and unaudited statements of income, comprehensive income, shareholders’ equity and cash flows of the Company and other historical financial information regarding the Company and its Subsidiaries, in either case required to be provided to the Financing Sources by the terms of any commitment letter or agreement entered into with any Financing Source, Effective Time; (B) audited consolidated balance sheets using reasonable best efforts to facilitate the execution and related audited statements of income, comprehensive income, shareholders’ equity and cash flows of the Company for each of the three fiscal years most recently ended more than 90 days delivery at or prior to the Closing Dateof definitive documents (including loan agreements, customary guarantee documentation (if applicable) and other applicable loan documents) related to the Financing; provided, that such documents will not take effect until, and unaudited consolidated balance sheets and related unaudited statements of income, comprehensive income, shareholders’ equity and cash flows of will be conditioned upon the Company for each subsequent fiscal quarter ended more than 45 days prior to the Closing Date, all such audited and unaudited statements complying with the requirements of Form F-4 for persons being acquired and Regulation S-X under the Securities Act for a non-issuer entity whose financial statements are filed in a registered offering of securities solely to satisfy Rule 3-05 of Regulation S-X, without giving effect to Rule 3-05(b)(4) of Regulation S-X (clauses (A) and (B), collectivelyoccurrence of, the “Required Financial Information”) Effective Time; and (C) such other historical financial and other information regarding the Company and its Subsidiaries as Parent may reasonably request;
(ii) as promptly as reasonably practicable, and in any event no later than the Delivery Deadline, provide Parent and the Financing Sources with such information (financial or otherwise) relating to the Company and its Subsidiaries (including information extent requested reasonably in advance, providing to be used in the preparation of an information package regarding the business, operations and financial condition of Parent and the Company) reasonably necessary for Parent’s preparation of customary offering or information documents to be used for the completion of the Debt Financing;
(iii) cooperate and assist with the reasonable due diligence, rating agency processes and syndication and marketing efforts of Parent, its Representatives and the Financing Sources, including participating in a reasonable number of meetings (including one-on-one meetings with representatives of the Financing Sources, prospective lenders and prospective investors, on the one hand, and senior management and Representatives of the Company, in each case with appropriate seniority and expertise, on the other hand), due diligence sessions (including accounting due diligence sessions), drafting sessions and road shows, at reasonable times and on reasonable notice; provided that the Company and its Representatives will only be required to travel or attend any in person meetings for a period not to exceed five Business Days and each such Representative shall be reasonably compensated for his or her reasonable costs and expenses;
(iv) assist Parent in preparing customary offering memoranda, rating agency presentations, lender and investor presentations, confidential information memoranda, private placement memoranda, prospectuses, filings with the SEC and other similar documents prepared in connection with the Debt Financing, including delivery and consenting to the inclusion or incorporation of the Required Financial Information and all other historical financial and other information regarding the Company and its Subsidiaries reasonably requested by Parent for use in any offering or information documents to be prepared in connection with the Debt Financing;
(v) make available, on a customary and reasonable basis and upon reasonable notice, appropriate personnel, including Representatives of the Company and its Subsidiaries, documents and information relating to the Company and its Subsidiaries, in each case, as may be reasonably requested by Parent, the Financing Sources, or as may be requested by the SEC in connection with the completion of the Debt Financing;
(vi) provide to Parent and the Financing Sources promptly, and in any event at least five (5) Business Days prior to the Closing Date, all customary and reasonable documentation and other information about the Company and its Affiliates requested in writing by Parent and required by the Financing Sources or regulatory authorities with respect to the Debt Financing Company and each of its Subsidiaries under applicable “know your customer” and anti-money anti‑money laundering rules and regulations, including without limitation the USA PATRIOT Act;
Act of 2001, as amended. Nothing in this Section 5.11 shall require such cooperation to the extent it would (viii) (A) request customary comfort letters from require the Company’s independent registered public accounting firm (including customary “negative assurances”)Company to agree to pay any fees, reimburse any expenses or give any indemnities, (Bii) request require the Company’s independent registered public accounting firm Company to consent incur any other liability or obligation prior to the inclusion Effective Time, (iii) cause any representation or incorporation warranty in this Agreement to be breached, or (iv) cause any condition to Closing set forth in Article VI to fail to be satisfied or otherwise cause any breach of their audit reports with respect this Agreement. Parent agrees, promptly upon request, to the Required Financial Information in any filing or registration statement of Parent with the SEC or any prospectus, offering memoranda, private placement memoranda, marketing material or similar documentation, including by providing customary representation letters, and (C) request the Company’s independent registered public accounting firm to reasonably cooperate with Parent and its Representatives, including by participating in accounting due diligence sessions at times and at locations reasonably acceptable to reimburse the Company and its independent registered public accounting firm;
Subsidiaries for all of their reasonable, documented, out‑of‑pocket costs, fees and expenses (viiiincluding fees and disbursements of counsel) subject to customary confidentiality provisions, provide customary authorization letters (in a form and on terms reasonably acceptable to the Company) to the Financing Sources authorizing the distribution of information to prospective lenders or investors, including, if requested, containing a representation to the Financing Sources that the public side versions of such documents, if any, do not include material non-public information about the Company or its Affiliates;
(ix) deliver notices of prepayment and/or notices for termination of commitments within the time periods required by the Credit Agreement and obtain payoff letters, lien terminations and releases and instruments of discharge, all in customary form, to be delivered at Closing providing for the payoff in full on the Closing Date of any amounts due under the Credit Agreement and for the termination of all obligations thereunder (other than other such obligations under the Credit Agreement that expressly by their terms survive such payoff, discharge and termination) and releasing, discharging and terminating any liens and other security interests created under any security documents actually incurred in connection with the Credit Agreement Financing promptly following the incurrence thereof (limited, in the case of any costs, fees and expenses for preparing the consolidated financial statements of the Company and its Subsidiaries described in clause (iii) of the immediately preceding sentence, to the incremental costs, fees and expenses for preparing the Audited Annual Financials and Quarterly Financials in excess of the costs, fees and expenses of preparing the corresponding financial statements of the Company and its Subsidiaries for the most recent fiscal year and most recent fiscal quarter ended prior to the date hereof). The Company, its Affiliates and their respective representatives shall be indemnified and held harmless by Parent for and against any and all related obligations thereunder liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and under each security documents (other than obligations under such security documents that expressly penalties suffered or incurred by their terms survive such payoff, discharge and termination);
(x) assisting in the preparation of, and executing and delivering, one or more credit agreements, unsecured notes, indentures and other definitive financing documents or other customary certificates (but not solvency certificates) and customary documents as may be reasonably requested by Parent which are necessary and customary them in connection with the Debt arrangement of the Financing (which agreementsother than arising out of or resulting from Company-Related Fraud, notes, indentures and other documents to which the Company is a party will be conditioned on the consummation of the Transactions);
(xi) consent to the use of the trademarks, service marks and logos gross negligence of the Company or any of its Subsidiaries or the Company’s breach of or failure to perform a covenant in this Agreement or breach or inaccuracy of a representation or warranty of the Company in this Agreement) to the fullest extent permitted by applicable Laws and with appropriate contribution to the extent such indemnification is not available. The Company hereby consents to the use of its and its Subsidiaries’ logos in connection with the Debt Financing; Financing, provided that such trademarks, service marks and logos are used solely in a customary manner that is not intended to or is not reasonably likely to harm or disparage the Company or any of its Subsidiaries; and
(xii) taking all other corporate actions, subject to the occurrence of the Closing, as may be reasonably necessary to permit the consummation of the Debt Financing. Notwithstanding the foregoing, (1) neither the Company nor any of its Subsidiaries shall be required to pay any fees, expenses or costs or incur any liability or obligations in connection with the Debt Financing, unless Parent reimburses or is required to indemnify the Company and its Subsidiaries pursuant to this Agreement or otherwise, (2) none of the Company, its Subsidiaries or their respective officers, directors the reputation or employees shall be required to execute or enter into or perform under any agreement with respect to the Debt Financing that is not contingent upon the Closing occurring or that would be effective prior to the Effective Time (other than authorization letters contemplated by Section 6.05(a)(viii)), (3) none goodwill of the Company, its Subsidiaries or their respective officers, directors or employees shall be required to deliver any certificate that such Person reasonably believes, in good faith, contains any untrue certifications or opinions, and (4) none of the Company, its Subsidiaries or their respective officers, directors or employees shall be required to provide any information the disclosure of which is prohibited or restricted under Applicable Law or the Company’s organizational documents or which is legally privileged or which is otherwise subject to the confidentiality provisions.
(b) The Company shall provide the Required Financial Information, together with the other information required under Section 6.05(a), to Parent in a manner that does not contain any untrue statement of a material fact or omit to state a material fact necessary to make such information, in light of the circumstances under which the statements contained in such information were made, not misleading. The Company shall notify Parent in writing if the Company determines that (i) any untrue statement of a material fact or omission of any material fact necessary to make such information, in light of the circumstances under which the statements contained in such information were made, not misleading exists with regard to any such information, (ii) any Required Financial Information must be restated or (iii) the Company’s independent registered public accounting firm has withdrawn any audit opinion with respect to any financial statements contained in the Required Financial Information.
(c) Parent shall, promptly upon written request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses (including reasonable and documented attorneys’ fees) incurred by the Company or any of its Subsidiaries in satisfying its obligations under this Section 6.05Subsidiaries. Parent, HoldCo and Merger Sub shall, on a joint and several basis, indemnify and hold harmless Notwithstanding anything to the Company and its Subsidiaries and their respective Representatives (each an “Indemnified Party”) from and against any and all losses, claims, damages, liabilities, costs, reasonable attorneys’ fees, judgments, fines, penalties and amounts (including amounts paid in settlement and all interest, assessments and other charges paid or payable in connection with contrary provided herein or in the Confidentiality Agreements, Parent shall be permitted to share all information subject to such agreements with its potential financing sources, subject to customary confidentiality undertakings by such potential financing sources with respect of any thereof), joint or several, to which such Indemnified Party may become subject, under the Securities Act, the Exchange Act, other Federal or state statutory or other laws or regulations or otherwise, insofar as such losses, claims, damages, liabilities costs, reasonable attorney’s fees, judgements fines, penalties, and amounts paid in settlement (or actions in respect thereof) arise out of or are based upon or suffered or incurred in connection with any action taken (or failure to act) by the Financing Sources, Parent, its Subsidiaries, or any of their respective Affiliates or the Company, any of its Subsidiaries or any of their respective Representatives pursuant to this Section 6.05 (other than the use of any information provided by the Company, any of its Subsidiaries or any of their respective Representatives in writing for use in connection with the Debt Financing), except to the extent such losses, claims, damages, liabilities, costs, reasonable attorneys’ fees, judgments, fines, penalties and amounts paid in settlement are determined by a final non-appealable judgment of a court of competent jurisdiction to have arisen out of, or resulted from, the gross negligence or willful misconduct of, or a Willful Breach by, the Company, any of its Subsidiaries or any of their respective Representativesthereto.
Appears in 1 contract
Samples: Merger Agreement (Cryolife Inc)
Financing Assistance. (a) The Prior to the Closing, the Company shall, and shall cause its Subsidiaries to, and shall at the sole expense of Parent, use its and their commercially reasonable efforts to cause each of their respective Representatives (including legal, tax, regulatory and accounting advisors) to, provide such cooperation as may be reasonably requested by Parent in connection with the Debt Financing arrangement of any financing to be consummated in connection with the Merger and the other transactions contemplated by this Agreement (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries). Without limiting the generality of the foregoing sentence, which cooperation prior to the Closing, the Company shall, to and shall cause its Subsidiaries to, at the extent requestedsole expense of Parent, include:
use its and their commercially reasonable efforts to: (i) as promptly as reasonably practicable providing information (financial or otherwise) relating to Company to the Persons providing the financing (including information to be used in the preparation of an information package regarding the business, operations, financial projections and in any event no later than the tenth Business Day preceding the Closing Date (such date, the “Delivery Deadline”) provide prospects of Parent and the Financing Sources Company customary or reasonably necessary for the completion of such financing) to the extent reasonably requested by Parent to assist in preparation of customary offering or information documents to be used for the completion of the financing, (ii) cooperate with the marketing efforts of Parent and its financing sources, including participating in reasonable number of meetings, due diligence sessions and road shows, at times and at locations reasonably acceptable to the Company, (iii) reasonably assist in preparing customary offering memoranda, rating agency presentations, lender presentations, financial statements (including pro forma financial statements, all of which unaudited financial statements shall have been reviewed by the Company’s independent accountants as provided in Statement on Accounting Standards No. 100), private placement memoranda, prospectuses and other similar documents, including delivery of (A) all historical consolidated balance sheets and related audited and unaudited statements of income, comprehensive income, shareholders’ equity and cash flows of the Company and other historical financial information regarding the Company and its Subsidiaries, in either case required to be provided to the Financing Sources by the terms of any commitment letter or agreement entered into with any Financing Source, (B) audited consolidated balance sheets and related audited statements of incomeoperations, comprehensive income, shareholdersstockholders’ equity and cash flows of the Company for each of the three fiscal years most recently ended more than at least 90 days prior to the Closing Date, Date (and audit reports for such financial statements shall not be subject to any “going concern” qualifications) and (B) unaudited consolidated balance sheets and related unaudited statements of incomeoperations, comprehensive income, shareholdersstockholders’ equity and cash flows of the Company for each subsequent fiscal quarter ended more than 45 at least 60 days prior to the Closing Date, all such audited and unaudited statements complying with the requirements of Form F-4 for persons being acquired and Regulation S-X under the Securities Act for a non-issuer entity whose financial statements are filed in a registered offering of securities solely to satisfy Rule 3-05 of Regulation S-X, without giving effect to Rule 3-05(b)(4) of Regulation S-X (clauses (A) and (B), collectively, the “Required Financial Information”) and (C) such other historical financial and other information regarding the Company and its Subsidiaries as Parent may reasonably request;
(ii) as promptly as reasonably practicable, and in any event no later than the Delivery Deadline, provide Parent and the Financing Sources with such information (financial or otherwise) relating to the Company and its Subsidiaries (including information to be used in the preparation of an information package regarding the business, operations and financial condition of Parent and the Company) reasonably necessary for Parent’s preparation of customary offering or information documents to be used for the completion of the Debt Financing;
(iii) cooperate and assist with the reasonable due diligence, rating agency processes and syndication and marketing efforts of Parent, its Representatives and the Financing Sources, including participating in a reasonable number of meetings (including one-on-one meetings with representatives of the Financing Sources, prospective lenders and prospective investors, on the one hand, and senior management and Representatives of the Company, in each case with appropriate seniority and expertise, on the other hand), due diligence sessions (including accounting due diligence sessions), drafting sessions and road shows, at reasonable times and on reasonable notice; provided that the Company and its Representatives will only be required to travel or attend any in person meetings for a period not to exceed five Business Days and each such Representative shall be reasonably compensated for his or her reasonable costs and expenses;
(iv) assist Parent in preparing customary offering memoranda, rating agency presentations, lender and investor presentations, confidential information memoranda, private placement memoranda, prospectuses, filings with the SEC and other similar documents prepared in connection with the Debt Financing, including delivery and consenting to the inclusion or incorporation of the Required Financial Information and all other historical financial and other information regarding the Company and its Subsidiaries reasonably requested by Parent for use in any offering or information documents to be prepared in connection with the Debt Financing;
(v) make available, on a customary and reasonable basis and upon reasonable notice, appropriate personnel, including Representatives of the Company and its Subsidiaries, documents and information relating to the Company and its Subsidiaries, in each case, as may be reasonably requested by Parent, (v) obtain any necessary consents from auditors in connection with any filings with the Financing SourcesSEC; provided that until the Closing occurs, the Company shall (A) have no liability or as may any obligation under any agreement or document related to the financing or (B) not be requested by the SEC required to incur any other liability in connection with the completion of the Debt Financing;
financing unless simultaneously reimbursed or reasonably satisfactorily indemnified by Parent, (vi) provide obtain customary legal opinions, financing accountants’ comfort letters and consents of accountants for use of their reports in any materials relating to Parent and the Financing Sources promptly, financing and in connection with any event at least five Business Days prior filings required to be made by Parent pursuant to the Closing Date, all documentation and other information about 1933 Act or the Company and its Affiliates requested in writing by Parent and required by the Financing Sources or regulatory authorities with respect to the Debt Financing under applicable “know your customer” and anti-money laundering rules and regulations, 1934 Act (including the PATRIOT Act;
(vii) (A) request customary comfort letters from the Company’s independent registered public accounting firm (including customary “negative assurances”Registration Statement), (B) request the Company’s independent registered public accounting firm to consent to the inclusion or incorporation of their audit reports with respect to the Required Financial Information in any filing or registration statement of Parent with the SEC or any prospectus, offering memoranda, private placement memoranda, marketing material or similar documentation, including by providing customary representation letters, and (C) request the Company’s independent registered public accounting firm to reasonably cooperate with Parent and its Representatives, including by participating in accounting due diligence sessions at times and at locations reasonably acceptable to the Company and its independent registered public accounting firm;
(viiivii) subject to customary confidentiality provisions, provide customary authorization letters (in a form and on terms reasonably acceptable to the Company) to the Financing Sources authorizing the distribution of information to prospective lenders or investors, including, if requested, containing a representation to the Financing Sources that the public side versions of such documents, if any, do not include material non-public information about the Company or its Affiliates;
investors and (ixviii) deliver notices of prepayment and/or notices for termination of commitments within the time periods required by the Credit Agreement and obtain customary payoff letters, lien terminations and releases letters and instruments of discharge, all in customary form, discharge to be delivered at Closing providing to allow for the payoff payoff, discharge and termination in full on the Closing Date of any amounts due under the Credit Agreement and for the termination of all obligations thereunder (other than other such obligations under the Credit Agreement that expressly by their terms survive such payoff, discharge and termination) and releasing, discharging and terminating any liens and other security interests created under any security documents in connection with the Credit Agreement and all related obligations thereunder and under each security documents (other than obligations under such security documents that expressly by their terms survive such payoff, discharge and termination);
(x) assisting in the preparation of, and executing and delivering, one or more credit agreements, unsecured notes, indentures and other definitive financing documents or other customary certificates (but not solvency certificates) and customary documents as may be reasonably requested by Parent which are necessary and customary in connection with the Debt Financing (which agreements, notes, indentures and other documents to which the Company is a party will be conditioned on the consummation of the Transactions);
(xi) consent to the use of the trademarks, service marks and logos of the Company or any of its Subsidiaries in connection with the Debt Financing; provided that such trademarks, service marks and logos are used solely in a manner that is not intended to or is not reasonably likely to harm or disparage the Company or any of its Subsidiaries; and
(xii) taking all other corporate actions, subject to the occurrence of the Closing, as may be reasonably necessary to permit the consummation of the Debt FinancingAgreement. Notwithstanding the foregoing, (1) neither the Company nor any of its Subsidiaries shall be required to pay any fees, expenses or costs or incur any liability or obligations in connection with the Debt Financing, unless Parent reimburses or is required to indemnify the Company and its Subsidiaries pursuant to this Agreement or otherwise, (2) none of the Company, its Subsidiaries or their respective officers, directors or employees shall be required to execute or enter into or perform under any agreement with respect to the Debt Financing that is not contingent upon the Closing occurring or that would be effective prior to the Effective Time (other than authorization letters contemplated by Section 6.05(a)(viii)), (3) none of the Company, its Subsidiaries or their respective officers, directors or employees shall be required to deliver any certificate that such Person reasonably believes, in good faith, contains any untrue certifications or opinions, and (4) none of the Company, its Subsidiaries or their respective officers, directors or employees shall be required to provide any information the disclosure of which is prohibited or restricted under Applicable Law or the Company’s organizational documents or which is legally privileged or which is otherwise subject to the confidentiality provisions.
(b) The Company shall provide the Required Financial Information, together with the other information required under Section 6.05(a), to Parent in a manner that does not contain any untrue statement of a material fact or omit to state a material fact necessary to make such information, in light of the circumstances under which the statements contained in such information were made, not misleading. The Company shall notify Parent in writing if the Company determines that (i) any untrue statement of a material fact or omission of any material fact necessary to make such information, in light of the circumstances under which the statements contained in such information were made, not misleading exists with regard to any such information, (ii) any Required Financial Information must be restated or (iii) the Company’s independent registered public accounting firm has withdrawn any audit opinion with respect to any financial statements contained in the Required Financial Information.
(c) Parent shall, promptly upon written request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses (including reasonable and documented attorneys’ fees) incurred by the Company or any of its Subsidiaries in satisfying connection with the cooperation of the Company and its obligations under Subsidiaries contemplated by this Section 6.056.06 (without duplication of any reimbursement pursuant to the preceding sentence). Parent, HoldCo Parent and Merger Sub Subsidiary shall, on a joint and several basis, indemnify and hold harmless the Company and its Subsidiaries and their respective Representatives (each an “Indemnified Party”) representatives from and against any and all liabilities, losses, damages, claims, damages, liabilities, costs, reasonable expenses (including attorneys’ fees), judgments, fines, penalties and amounts (including amounts paid in settlement and all interest, assessments awards, judgments and other charges paid or payable in connection with or in respect of any thereof), joint or several, to which such Indemnified Party may become subject, under the Securities Act, the Exchange Act, other Federal or state statutory or other laws or regulations or otherwise, insofar as such losses, claims, damages, liabilities costs, reasonable attorney’s fees, judgements fines, penalties, and amounts paid in settlement (or actions in respect thereof) arise out of or are based upon or penalties suffered or incurred in connection with any action taken (financing or failure to act) by the Financing Sources, Parent, its Subsidiaries, or any other securities offering of their respective Affiliates or the Company, any of Parent and/or its Subsidiaries or any of their respective Representatives pursuant to this Section 6.05 (other than the use of any information assistance or activities provided by the Company, any of its Subsidiaries or any of their respective Representatives in writing for use in connection with the Debt Financing), except to the extent such losses, claims, damages, liabilities, costs, reasonable attorneys’ fees, judgments, fines, penalties and amounts paid in settlement are determined by a final non-appealable judgment of a court of competent jurisdiction to have arisen out of, or resulted from, the gross negligence or willful misconduct of, or a Willful Breach by, the Company, any of its Subsidiaries or any of their respective Representativestherewith.
Appears in 1 contract
Financing Assistance. (a) The Prior to the Closing, the Company shall, and shall cause its Subsidiaries to, and shall to use its and their commercially reasonable efforts to cause each of their respective Representatives (including legal, tax, regulatory and accounting advisors) to, provide such cooperation as may be reasonably requested by Parent in connection with the arrangement of the Debt Financing (which term shall include, for purposes of this Section 6.03(a), any of the permanent financing referred to in the Debt Commitment Letters) (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries). Without limiting the generality of the foregoing sentence, which cooperation prior to the Closing, the Company shall, and shall cause its Subsidiaries to the extent requested, include:
use its and their commercially reasonable efforts to: (i) as promptly as reasonably practicable and in any event no later than provide information (financial or otherwise) relating to the tenth Business Day preceding the Closing Date (such date, the “Delivery Deadline”) provide Company to Parent and the Financing Sources with (A) all historical consolidated balance sheets and related audited and unaudited statements of income, comprehensive income, shareholders’ equity and cash flows of the Company and other historical financial information regarding the Company and its Subsidiaries, in either case required to be provided to the Financing Sources (including information to be used in the preparation of an information package regarding the business, operations, financial condition, financial projections and prospects of Parent and the Company customary or reasonably necessary for the completion of such financing) to the extent reasonably requested by Parent in connection with Parent’s preparation of customary offering or information documents to be used for the terms completion of any commitment letter or agreement entered into with any Financing Sourcethe Debt Financing, (Bii) cooperate and assist with the due diligence, rating agency processes and marketing efforts of Parent, its Representatives and the Financing Sources, including participating in a reasonable number of meetings, due diligence sessions and road shows, at times and at locations reasonably acceptable to the Company, (iii) reasonably assist Parent in preparing customary offering memoranda, rating agency presentations, lender and investor presentations, confidential information memoranda, financial statements, private placement memoranda, prospectuses, filings with the SEC and other similar documents, including delivery and consenting to the inclusion or incorporation in any SEC filing related to the Debt Financing or the Alternative Financing of (A) audited consolidated balance sheets and related audited statements of income, comprehensive income, shareholders’ equity and cash flows of the Company for each of the three fiscal years most recently ended more than 90 60 days prior to the Closing DateDate (and audit reports for such financial statements shall not be subject to any “going concern” qualifications), and (B) unaudited consolidated balance sheets and related unaudited statements of income, comprehensive income, shareholders’ equity and cash flows of the Company for each subsequent fiscal quarter ended more than 45 40 days prior to the Closing Date, all such audited and unaudited statements complying with the requirements of Form F-4 for persons being acquired and Regulation S-X under the Securities Act for a non-issuer entity whose financial statements are filed in a registered offering of securities solely to satisfy Rule 3-05 of Regulation S-X, without giving effect to Rule 3-05(b)(4) of Regulation S-X (clauses (A) and (B), collectively, the “Required Financial Information”) Date and (C) such other historical financial and other information regarding the Company and its Subsidiaries as Parent may reasonably request;
(ii) as promptly as reasonably practicable, and in any event no later than the Delivery Deadline, provide Parent and the Financing Sources with such information (financial or otherwise) relating to the Company and its Subsidiaries (including information to be used in the preparation of an information package regarding the business, operations and financial condition of Parent and the Company) reasonably necessary for Parent’s preparation of customary offering or information documents to be used for the completion of the Debt Financing;
(iii) cooperate and assist with the reasonable due diligence, rating agency processes and syndication and marketing efforts of Parent, its Representatives and the Financing Sources, including participating in a reasonable number of meetings (including one-on-one meetings with representatives of the Financing Sources, prospective lenders and prospective investors, on the one hand, and senior management and Representatives of the Company, in each case with appropriate seniority and expertise, on the other hand), due diligence sessions (including accounting due diligence sessions), drafting sessions and road shows, at reasonable times and on reasonable notice; provided that the Company and its Representatives will only be required to travel or attend any in person meetings for a period not to exceed five Business Days and each such Representative shall be reasonably compensated for his or her reasonable costs and expenses;
(iv) assist Parent in preparing customary offering memoranda, rating agency presentations, lender and investor presentations, confidential information memoranda, private placement memoranda, prospectuses, filings with the SEC and other similar documents prepared in connection with the Debt Financing, including delivery and consenting to the inclusion or incorporation of the Required Financial Information and all other historical financial and other information regarding the Company reasonably necessary to permit Parent to prepare pro forma financial statements customary for the bank financing and its Subsidiaries reasonably requested the debt securities offering contemplated by Parent for use in any offering or information documents to be prepared in connection with the Debt Financing or the Alternative Financing;
, (viv) make available, on a customary and reasonable basis and upon reasonable notice, appropriate personnel, including Representatives of the Company and its Subsidiaries, documents and information relating to the Company and its Subsidiaries, in each case, as may be reasonably requested by Parent, the Financing Sources, or as may be requested by the SEC in connection with the completion of the Debt Financing;
financing, (viv) provide to Parent and the Financing Sources promptly, and in any event at least five (5) Business Days prior to the Closing Date, all documentation and other information about the Company and its Affiliates requested in writing by Parent and required by the Financing Sources or regulatory authorities with respect to the Debt Financing under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act;
, that is required under the Debt Commitment Letters to the extent such documentation and other information is requested in writing to the Company at least 10 Business Days prior to the Closing Date, (vi) obtain any necessary consents from the Company’s independent public accounting firm in connection with any filings with the SEC, (vii) in connection with any securities offering contemplated as part of the Debt Financing or the Alternative Financing, (A) request obtain customary comfort letters from the Company’s independent registered public accounting firm (including customary “negative assurances”)firm, (B) request cause the Company’s independent registered public accounting firm to consent to the inclusion or incorporation of their audit reports with respect to the Required Financial Information financial statements of the Company provided pursuant to Section 6.03(a)(iii) in any filing or registration statement of Parent with the SEC or any prospectus, offering memoranda, private placement memoranda, marketing material or similar documentation, including by providing customary representation letters, letters and (C) request cause the Company’s independent registered public accounting firm to reasonably cooperate with Parent and its Representatives, including by participating in accounting due diligence sessions at times and at locations reasonably acceptable to the Company and its independent registered public accounting firm;
, (viii) subject to customary confidentiality provisions, provide customary authorization letters (in a form and on terms reasonably acceptable to the Company) to the Financing Sources authorizing the distribution of information to prospective lenders or investors, including, if requested, containing a representation to the Financing Sources that the public side versions of such documents, if any, do not include material non-public information about the Company or its Affiliates;
(ix) deliver notices of prepayment and/or notices for termination of commitments within the time periods required by the Credit Agreement and obtain customary payoff letters, lien terminations and releases letters and instruments of discharge, all in customary form, discharge to be delivered at Closing providing to allow for the payoff payoff, discharge and termination in full on the Closing Date of any amounts due under the Credit Agreement and for the termination of all obligations thereunder (other than other such obligations under the Credit Agreement that expressly by their terms survive such payoffAgreement, discharge and termination) and releasing, discharging and terminating any liens and other security interests created under any security documents in connection with the Credit Agreement and all related obligations thereunder and under each security documents (other than obligations under such security documents that expressly by their terms survive such payoff, discharge and termination);
(x) assisting in reasonably assist with the preparation ofof the definitive documentation for the Debt Financing, including by providing information reasonably necessary for the completion of any schedules thereto, in each case to the extent, and executing solely to the extent, such materials relate to information concerning the Company and deliveringits Subsidiaries, one (xi) provide or more credit agreementscause to be provided any customary certificates, unsecured notes, indentures and other definitive financing documents or other customary certificates (but not solvency certificates) and customary closing documents as may reasonably be reasonably requested by Parent which are necessary and customary in connection with the Debt Financing and the Alternative Financing and (which agreements, notes, indentures and other documents to which the Company is a party will be conditioned on the consummation of the Transactions);
(xixii) consent to the use of the trademarks, service marks and logos of the Company or any of its Subsidiaries in connection with the Debt Financing; Financing; provided that such trademarks, service marks and logos are used solely in a manner that is not intended to or is not reasonably likely to harm or disparage the Company or any of its Subsidiaries; and
(xii) taking all other corporate actions, subject to the occurrence of the Closing, as may be reasonably necessary to permit the consummation of the Debt Financing. Notwithstanding the foregoing, (1) neither the Company nor any of its Subsidiaries shall be required to pay any fees, expenses commitment or costs other similar fee or incur prior to the Closing any other liability or obligations obligation in connection with the Debt Financing, unless Parent reimburses or is required to reimburse or indemnify the Company and its Subsidiaries pursuant to this Agreement or otherwiseotherwise agrees to do so, (2) none of the Company, its Subsidiaries or their respective officers, directors or employees shall be required to execute or enter into or perform under any agreement with respect to the Debt Financing that is not contingent upon the Closing occurring or that would be effective prior to the Effective Time Closing (other than authorization letters contemplated by clause (viii) of this Section 6.05(a)(viii)6.03(a) and for the avoidance of doubt, the boards of directors or other equivalent governing bodies of Parent, Merger Sub, and/or the Surviving Corporation shall enter into or provide any resolutions, consents, approvals or other closing arrangements on behalf of the Company and its Subsidiaries as may be required by the Financing Sources pursuant to the Debt Commitment Letter at, or as of, the Closing), and (3) none nothing shall obligate the Company or any of its Subsidiaries to provide, or cause to be provided, any legal opinion by its counsel, or to provide, or cause to be provided, any information or take, or cause to be taken, any action to the extent it would reasonably be expected, in the reasonable judgment of the Company, its Subsidiaries or their respective officers, directors or employees shall be required to deliver any certificate that such Person reasonably believes, result in good faith, contains any untrue certifications or opinions, and (4) none a violation of the Company, its Subsidiaries or their respective officers, directors or employees shall be required to provide any information the disclosure of which is prohibited or restricted under Applicable Law or the Company’s organizational documents or which is legally privileged or which is otherwise subject to the confidentiality provisionsloss of any privilege.
(b) The Company shall provide the Required Financial Information, together with the other information required under Section 6.05(a), to Parent in a manner that does not contain any untrue statement of a material fact or omit to state a material fact necessary to make such information, in light of the circumstances under which the statements contained in such information were made, not misleading. The Company shall notify Parent in writing if the Company determines that (i) any untrue statement of a material fact or omission of any material fact necessary to make such information, in light of the circumstances under which the statements contained in such information were made, not misleading exists with regard to any such information, (ii) any Required Financial Information must be restated or (iii) the Company’s independent registered public accounting firm has withdrawn any audit opinion with respect to any financial statements contained in the Required Financial Information.
(c) Parent shall, promptly upon written request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses (including reasonable and documented attorneys’ fees) incurred by the Company or any of its Subsidiaries in satisfying its obligations under this Section 6.056.03. Parent, HoldCo Parent and Merger Sub shall, on a joint and several basis, indemnify and hold harmless the Company and its Subsidiaries and their respective Representatives (each an “Indemnified Party”) from and against any and all losses, claims, damages, liabilities, costs, reasonable attorneys’ fees, judgments, fines, penalties and amounts (including amounts paid in settlement and (including all interest, assessments and other charges paid or payable in connection with or in respect of any thereof), joint or several, to which such Indemnified Party may become subject, under the Securities Act, the Exchange Act, other Federal or state statutory or other laws or regulations or otherwise, insofar as such losses, claims, damages, liabilities costs, reasonable attorney’s fees, judgements fines, penalties, and amounts paid in settlement (or actions in respect thereof) arise out of or are based upon or suffered or incurred in connection with any action taken (or failure to act) by the Financing Sources, Parent, its Subsidiaries, or any of their respective Affiliates or the Company, any of its Subsidiaries or any of their respective Representatives pursuant to this Section 6.05 6.03 (other than the use of any information provided by the Company, any of its Subsidiaries or any of their respective Representatives in writing for use in connection with the Debt Financing), except to in the extent event such losses, claims, damages, liabilities, costs, reasonable attorneys’ fees, judgments, fines, penalties and amounts paid in settlement are determined by a final non-appealable judgment of a court of competent jurisdiction to have arisen out of, or resulted from, the gross negligence or willful misconduct of, or a Willful Breach by, of the Company, any of its Subsidiaries or any of their respective Representatives.
Appears in 1 contract
Samples: Merger Agreement (CVS HEALTH Corp)
Financing Assistance. (a) The Prior to the Closing, the Company shallshall provide, and shall cause its Company Subsidiaries toto provide, and shall use its commercially reasonable best efforts to cause each of their respective Representatives (including legalto provide, tax, regulatory and accounting advisors) to, provide such cooperation in connection with the arrangement of the Financing (or any alternative financing sought or obtained by Parent and Merger Sub in accordance with the terms hereof) as may be reasonably requested by Parent in connection with the Debt Financing (provided that such cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries)or Merger Sub, which cooperation shall, including using their respective reasonable best efforts to the extent requested, include:
(i) as promptly as reasonably practicable furnish Parent, Merger Sub and in any event no later than the tenth Business Day preceding the Closing Date (such date, the “Delivery Deadline”) provide Parent and the their Financing Sources with (A) all historical consolidated balance sheets and related audited and unaudited the financial statements of income, comprehensive income, shareholders’ equity and cash flows of the Company and its Subsidiaries identified in Paragraph 10 of Exhibit C of the Debt Commitment Letter and the SBLC Commitment Letter as of the date hereof, and (B) to the extent requested by Parent, all other historical financial information regarding and data related to the Company and its SubsidiariesSubsidiaries necessary for Parent or Merger Sub, as applicable, to satisfy the conditions set forth in either case required to be provided Paragraph 11 of Exhibit C of the Debt Commitment Letter and the SBLC Commitment Letter as of the date hereof (subject to the Financing Sources by immediately following proviso, the terms of any commitment letter or agreement entered into with any Financing Source, (B) audited consolidated balance sheets and related audited statements of income, comprehensive income, shareholders’ equity and cash flows of the Company for each of the three fiscal years most recently ended more than 90 days prior to the Closing Date, and unaudited consolidated balance sheets and related unaudited statements of income, comprehensive income, shareholders’ equity and cash flows of the Company for each subsequent fiscal quarter ended more than 45 days prior to the Closing Date, all such audited and unaudited statements complying with the requirements of Form F-4 for persons being acquired and Regulation S-X under the Securities Act for a non-issuer entity whose financial statements are filed in a registered offering of securities solely to satisfy Rule 3-05 of Regulation S-X, without giving effect to Rule 3-05(b)(4) of Regulation S-X (foregoing clauses (A) and (B), collectively) together, the “Required Financial Information”) and (C) such other historical financial and other pertinent information regarding the Company and its Subsidiaries as may be reasonably requested by Parent may reasonably request;
that is customarily needed for financings of the type contemplated by the Commitment Letters; provided, that the Company and the Company Subsidiaries shall have no obligation to prepare or to provide any adjustments, assumptions, estimates, projections or other information in connection with the preparation of the pro forma financial statements requested by the Debt Commitment Letter; (ii) as promptly as reasonably practicable, participate and in any event no later than the Delivery Deadline, provide Parent direct senior management and the Financing Sources with such information (financial or otherwise) relating to representatives of the Company to participate, in each case at mutually agreeable times and its Subsidiaries (including information to be used in the preparation of an information package regarding the businessplaces and with reasonable advance notice, operations and financial condition of Parent and the Company) reasonably necessary for Parent’s preparation of customary offering or information documents to be used for the completion of the Debt Financing;
(iii) cooperate and assist with the reasonable due diligence, rating agency processes and syndication and marketing efforts of Parent, its Representatives and the Financing Sources, including participating in a reasonable number of meetings (including one-on-one meetings with representatives of the Financing Sourcesmeetings, prospective lenders and prospective investorspresentations, on the one handroad shows, and senior management and Representatives of the Company, in each case with appropriate seniority and expertise, on the other hand)drafting sessions, due diligence sessions and sessions with prospective lenders, investors and ratings agencies in connection with the Financing; (including accounting due diligence sessions)iii) assist, drafting sessions as reasonably requested by Parent, Parent and road showsMerger Sub and the Financing Sources in the preparation of (A) any offering documents, at reasonable times and on reasonable notice; provided that the Company and its Representatives will only be required to travel or attend any in person meetings for a period not to exceed five Business Days and each such Representative shall be reasonably compensated for his or her reasonable costs and expenses;
(iv) assist Parent in preparing customary offering memoranda, rating agency presentations, lender and investor presentations, confidential information memorandaprospectuses, private placement memoranda, prospectusesbank information memoranda (including the delivery of customary authorization and representation letters in connection therewith) and similar documents, filings with the SEC including participating in drafting sessions, and other similar documents prepared (B) materials for rating agency presentations; (iv) use commercially reasonable efforts to cause their accountants to provide reasonable assistance in connection with the Debt Financing, including delivery and consenting using commercially reasonable efforts to cause their accountants to consent to the inclusion or incorporation use of the Required Financial Information and all other historical financial and other information regarding the Company and its Subsidiaries reasonably requested by Parent for use their reports in any offering or documents, prospectuses, private placement memoranda, bank information memoranda and similar documents as well as render customary “comfort letters” (including customary “negative assurance” comfort and change period comfort) with respect to be prepared in connection with the Debt Financing;
(v) make available, on a customary and reasonable basis and upon reasonable notice, appropriate personnel, including Representatives financial information of the Company and its SubsidiariesCompany Subsidiaries contained in any materials related to the Financing; (v) facilitate the pledging of collateral, documents including assisting with the execution, preparation and information relating to delivery of original stock certificates of the Company and its Subsidiaries, in each case, as may Company Subsidiaries that are required to be reasonably requested by Parent, the Financing Sources, pledged pursuant to any Commitment Letter and original stock or as may be requested by the SEC in connection with the completion of equivalent powers related thereto to the Debt Financing;
(vi) provide to Parent and the Financing Sources promptly, and in (or any event at least five Business Days sources providing alternative debt financing pursuant to the terms hereof) (including providing copies thereof prior to the Closing Date) on or prior to the Closing Date; provided, that any such pledges shall be authorized and become effective only at, or as of, the Closing, and no delivery of any such original stock or equivalent certificates and original stock or equivalent powers shall be made until release by the Company only at, or as of, the Closing; (vi) obtain surveys and title insurance at the expense of and as reasonably requested by Parent; (vii) obtain customary payoff letters (subject to and conditioned upon, or to be executed upon, the Closing) relating to the repayment of any existing third party indebtedness for borrowed money requested by Parent to be repaid on or coincidental with the Closing and upon repayment of such indebtedness termination of any related Liens securing any such obligations to be repaid; (viii) provide all documentation and other information about with respect to the Company and its Affiliates Company Subsidiaries at least three (3) days prior to the Closing Date as shall have been reasonably requested in writing by Parent and at least ten (10) days prior to the Closing Date that Parent reasonably determines is required by the Financing Sources or U.S. regulatory authorities with respect to the Debt Financing under applicable “know your know-your-customer” and anti-money laundering rules and regulations, including the PATRIOT Patriot Act;
(vii) (A) request customary comfort letters from the Company’s independent registered public accounting firm (including customary “negative assurances”), (B) request the Company’s independent registered public accounting firm to consent to the inclusion or incorporation of their audit reports with respect to the Required Financial Information in any filing or registration statement of Parent with the SEC or any prospectus, offering memoranda, private placement memoranda, marketing material or similar documentation, including by providing customary representation letters, and (C) request the Company’s independent registered public accounting firm to reasonably cooperate with Parent and its Representatives, including by participating in accounting due diligence sessions at times and at locations reasonably acceptable to the Company and its independent registered public accounting firm;
(viii) subject to customary confidentiality provisions, provide customary authorization letters (in a form and on terms reasonably acceptable to the Company) to the Financing Sources authorizing the distribution of information to prospective lenders or investors, including, if requested, containing a representation to the Financing Sources that the public side versions of such documents, if any, do not include material non-public information about the Company or its Affiliates;
; (ix) deliver notices a certificate of prepayment and/or notices for termination the Chief Financial Officer of commitments within the time periods required by Company with respect to solvency matters substantially in the Credit Agreement form attached as Exhibit D to the Debt Commitment Letter and obtain payoff letters, lien terminations the SBLC Commitment Letter as of the date hereof; and releases and instruments of discharge, all in customary form, to be delivered at Closing providing for the payoff in full on the Closing Date of any amounts due under the Credit Agreement and for the termination of all obligations thereunder (other than other such obligations under the Credit Agreement that expressly by their terms survive such payoff, discharge and termination) and releasing, discharging and terminating any liens and other security interests created under any security documents in connection with the Credit Agreement and all related obligations thereunder and under each security documents (other than obligations under such security documents that expressly by their terms survive such payoff, discharge and termination);
(x) assisting assist in the preparation of, and executing and delivering, negotiation of one or more credit agreements, unsecured notesindentures, indentures purchase agreements, pledge and security documents and other definitive financing documents or other customary certificates (but not solvency certificates) and customary documents as may be reasonably requested by Parent which are necessary or Merger Sub.
(b) Notwithstanding the foregoing Section 5.13(a) or anything in this Agreement to the contrary, (i) neither the Company nor any of the Company Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 5.13 that would unreasonably interfere with the ongoing operations of the Company and customary Company Subsidiaries; (ii) prior to the Effective Time, neither the Company nor any of the Company Subsidiaries shall be required to waive or amend any terms of this Agreement or pay any commitment or other similar fee or incur or assume any other liability or obligation in connection with the Debt Financing financings contemplated by the Commitment Letters; (which agreementsiii) prior to the Effective Time, notesnone of the Company, indentures Company Subsidiaries or their officers, directors or employees shall be required to authorize, execute or enter into or perform any agreement (other than the authorization and other documents representation letters contemplated above) with respect to which the Financing; (iv) neither the Company is a party will be conditioned on the consummation nor any of the Transactions);
Company Subsidiaries shall be required to take or permit the taking of any action that would (xiA) consent contravene any applicable Law or the Company’s or any Company Subsidiary’s organizational documents or require the Company or any of the Company Subsidiaries to disclose information subject to any attorney-client, attorney work product or other legal privilege (provided, that the Company shall use its reasonable best efforts to allow for such access or disclosure to the use maximum extent that does not result in a loss of any such attorney-client, attorney work product or other legal privilege), (B) cause any covenant, representation or warranty in this Agreement to be breached by the Company or any of the trademarksCompany Subsidiaries or (C) cause any director, service marks and logos officer or employee or stockholder of the Company or any of its the Company Subsidiaries to incur or potentially incur any personal liability; (v) neither the Company nor any of the Company Subsidiaries shall be required to deliver or cause to be delivered any financial information in a form not customarily prepared by the Company or with respect to a month or fiscal period that has not yet ended or has ended less than 45 days prior to the date of such request (or 90 days in the case of a fiscal year-end); and (vi) neither the Company nor any Company Subsidiary nor any Persons who are directors or officers of the Company or any Company Subsidiary shall be required to pass resolutions or consents to approve or authorize the execution of the Financing or deliver any certificate, document, instrument or agreement in connection with the Debt Financing; provided Financing that is effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement in connection with the Financing that is effective prior to the Closing (provided, that in no event shall this Section 5.13 require the Company or any of the Company Subsidiaries to cause any officer or director of the Company or any Company Subsidiary that is not continuing in such capacity after the Closing to execute any certificate, document, instrument or agreement). The Company hereby consents to the use of its and Company Subsidiaries’ logos in connection with the Financing (or any alternative financing source obtained in accordance with the terms hereof); provided, that such trademarks, service marks and logos are used solely in a customary manner that is not intended to or is not nor reasonably likely to harm or disparage the Company or any of its Subsidiaries; and
(xii) taking all other corporate actions, subject to the occurrence of the Closing, as may be reasonably necessary to permit the consummation of the Debt Financing. Notwithstanding the foregoing, (1) neither the Company nor any of its Subsidiaries shall be required to pay any fees, expenses or costs or incur any liability or obligations in connection with the Debt Financing, unless Parent reimburses or is required to indemnify the Company and its Subsidiaries pursuant to this Agreement or otherwise, (2) none of the Company, its Subsidiaries or their respective officers, directors the reputation or employees shall be required to execute or enter into or perform under any agreement with respect to the Debt Financing that is not contingent upon the Closing occurring or that would be effective prior to the Effective Time (other than authorization letters contemplated by Section 6.05(a)(viii)), (3) none goodwill of the Company, its Subsidiaries Company or their respective officers, directors or employees shall be required to deliver any certificate that such Person reasonably believes, in good faith, contains any untrue certifications or opinions, and (4) none of the Company, its Subsidiaries or their respective officers, directors or employees shall be required to provide any information the disclosure of which is prohibited or restricted under Applicable Law or the Company’s organizational documents or which is legally privileged or which is otherwise subject to the confidentiality provisions.
(b) The Company shall provide the Required Financial Information, together with the other information required under Section 6.05(a), to Parent in a manner that does not contain any untrue statement of a material fact or omit to state a material fact necessary to make such information, in light of the circumstances under which the statements contained in such information were made, not misleading. The Company shall notify Parent in writing if the Company determines that (i) any untrue statement of a material fact or omission of any material fact necessary to make such information, in light of the circumstances under which the statements contained in such information were made, not misleading exists with regard to any such information, (ii) any Required Financial Information must be restated or (iii) the Company’s independent registered public accounting firm has withdrawn any audit opinion with respect to any financial statements contained in the Required Financial InformationSubsidiaries.
(c) Holdings and Parent shall indemnify and hold harmless the Company, Company Subsidiaries and their respective Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties, actually suffered or incurred by them in connection with the arrangement of the Financing and the performance of their obligations in accordance with this Section 5.13 and any information utilized in connection therewith (other than historical information related to the Company or Company Subsidiaries provided by or on behalf of the Company or Company Subsidiaries in writing specifically for use in connection with the Financing). Holdings and Parent shall, promptly upon written request by of the Company, reimburse the Company and Company Subsidiaries for all reasonable and documented out-of-pocket costs and expenses (including reasonable and documented attorneys’ fees) incurred by the Company or any of its Subsidiaries in satisfying its obligations under this Section 6.05. Parent, HoldCo and Merger Sub shall, on a joint and several basis, indemnify and hold harmless the Company and its Subsidiaries and (including their respective Representatives (each an “Indemnified Party”Representatives) from and against any and all losses, claims, damages, liabilities, costs, reasonable attorneys’ fees, judgments, fines, penalties and amounts (including amounts paid in settlement and all interest, assessments and other charges paid or payable in connection with or in respect of any thereof), joint or several, to which such Indemnified Party may become subject, under the Securities Act, the Exchange Act, other Federal or state statutory or other laws or regulations or otherwise, insofar as such losses, claims, damages, liabilities costs, reasonable attorney’s fees, judgements fines, penalties, and amounts paid in settlement (or actions in respect thereof) arise out of or are based upon or suffered or incurred in connection with any action taken (or failure to act) by the Financing Sources, Parent, its Subsidiaries, or any of their respective Affiliates or the Company, any of its Subsidiaries or any of their respective Representatives pursuant to this Section 6.05 (other than the use of any information provided by the Company, any of its Subsidiaries or any of their respective Representatives in writing for use in connection with the Debt Financing), except to the extent such losses, claims, damages, liabilities, costs, reasonable attorneys’ fees, judgments, fines, penalties and amounts paid in settlement are determined cooperation required by a final non-appealable judgment of a court of competent jurisdiction to have arisen out of, or resulted from, the gross negligence or willful misconduct of, or a Willful Breach by, the Company, any of its Subsidiaries or any of their respective Representativesthis Section 5.13.
Appears in 1 contract
Financing Assistance. (a) The Company Prior to the Closing Date, Sellers shall promptly take such actions in respect of the Existing Credit Facility and all other existing Indebtedness of each Seller as requested by Buyers to repay in full and terminate or satisfy and discharge all obligations under the Existing Credit Facility and such other existing Indebtedness of each Seller or directly or indirectly encumbering the Acquired Assets at the time of the Closing, including obtaining consents or waivers that may be required to effect such repayment at Closing, provided that the effectiveness of such repayment or prepayment and satisfaction and discharge shall be conditioned on the Closing and the receipt of funds thereafter from Buyers.
(b) Prior to the Closing, each of the Owners shall, and shall cause its Subsidiaries each Seller to, provide to Buyers, and shall use its commercially reasonable best efforts to cause each of its and their respective Representatives officers, employees, accountants, legal counsel, agents and other advisors and representatives (including legalcollectively, taxthe “Representatives”) to provide to Buyers, regulatory all cooperation and accounting advisors) to, provide such cooperation as may be assistance reasonably requested by Parent Buyers in connection with the Debt Financing arrangement, syndication and consummation of any debt financing (provided that such cooperation does not unreasonably interfere including the marketing efforts in connection therewith) undertaken by Buyers in connection with the ongoing operations of transactions contemplated by this Agreement (collectively, the Company and its Subsidiaries“Debt Financing”), which cooperation shallin each case in a timely manner, to the extent requested, includeincluding:
(i) furnishing Buyers and Buyers’ financing sources, as promptly as reasonably practicable and in any event no later than the tenth Business Day preceding the Closing Date (such datepracticable, the “Delivery Deadline”) provide Parent and the Financing Sources with (A) all historical the Financial Statements, (B) an unaudited consolidated balance sheets sheet of Sellers and related audited and unaudited consolidated statements of income, comprehensive income, shareholdersstockholders’ equity and cash flows of the Company and other historical financial information regarding the Company and its Subsidiaries, in either case required to be provided to the Financing Sources by the terms of any commitment letter or agreement entered into with any Financing Source, (B) audited consolidated balance sheets and related audited statements of income, comprehensive income, shareholders’ equity and cash flows of the Company for each of the three subsequent fiscal years most recently quarter ended more than 90 at least forty-five (45) days prior to the Closing Date, and unaudited consolidated balance sheets (C) all financial information and related unaudited statements of incomeall other information regarding Sellers reasonably required for Buyers to prepare pro forma financial statements, comprehensive income, shareholders’ equity as well as financial projections and cash flows of the Company a financial model for each subsequent fiscal quarter ended more than 45 days prior to the Closing Date, all such audited and unaudited statements complying with the requirements of Form F-4 for persons being acquired and Regulation S-X under the Securities Act for a non-issuer entity whose financial statements are filed in a registered offering of securities solely to satisfy Rule 3-05 of Regulation S-X, without Buyers after giving effect to Rule 3-05(b)(4) the transactions contemplated by this Agreement, in each case consistent with the type required for a registered public offering of Regulation S-X (clauses (A) and (B), collectively, the “Required Financial Information”) and (C) such other historical financial and other information regarding the Company and its Subsidiaries as Parent may reasonably request;
(ii) as promptly as reasonably practicabledebt securities, and of type and form customarily included in any event no later than private placements of debt securities under Rule 144A of the Delivery DeadlineSecurities Act, provide Parent and the Financing Sources with such information (financial or otherwise) relating to the Company and its Subsidiaries (including information to be used in the preparation of an information package regarding the business, operations and financial condition of Parent and the Company) reasonably necessary for Parent’s preparation of customary offering or information documents to be used for the completion of consummate the Debt Financing;
(iiiii) cooperate upon reasonable notice, during business hours and assist at Buyers’ expense, providing reasonable cooperation with the reasonable due diligence, rating agency processes and syndication and marketing efforts of ParentBuyers and lenders, underwriters or initial purchasers for the Debt Financing, including using reasonable best efforts to cause its Representatives (including senior management and the Financing Sources, including participating advisors of Sellers) to participate in a reasonable number of meetings or conference calls;
(including one-on-one meetings iii) assisting with representatives the preparation of customary materials for rating agency presentations, offering documents, registration statements, prospectuses, road show presentations and similar documents reasonably necessary or advisable in connection with the Debt Financing Sources(collectively, prospective lenders and prospective investors, on the one hand, and senior management and Representatives of the Company, in each case with appropriate seniority and expertise, on the other hand“Offering Documentation”), due diligence sessions (including accounting due diligence sessions), drafting sessions and road shows, at reasonable times and on reasonable notice; provided that the Company and its Representatives will only be required to travel or attend any in person meetings for a period not to exceed five Business Days and each such Representative shall be reasonably compensated for his or her reasonable costs and expenses;
(iv) assist Parent in preparing using reasonable best efforts to cause Sellers’ independent auditors to provide, consistent with customary offering memorandapractice, rating agency presentations(A) audit reports, lender comfort letters (including “negative assurance” comfort), authorization letters and investor presentations, confidential information memoranda, private placement memoranda, prospectuses, filings consents of accountants and auditors with the SEC respect to financial statements and other similar documents prepared financial information for Sellers and their reports thereon for inclusion in connection any Offering Documentation, (B) assistance in the preparation of pro forma financial statements by Buyers, and (C) assistance to and cooperation with the Debt FinancingBuyers, including delivery and consenting to the inclusion or incorporation of the Required Financial Information and all other historical financial and other information regarding the Company and its Subsidiaries reasonably requested by Parent for use in any offering or information documents to be prepared in connection with the Debt Financingattending accounting due diligence sessions;
(v) make availableexecuting and delivering any representation and authorization letters to accountants and auditors, on a customary closing certificates and reasonable basis any other certificates, letters and upon reasonable notice, appropriate personnel, including Representatives of the Company and its Subsidiaries, documents and information relating to the Company and its Subsidiaries, in each case, as may be reasonably requested by Parent, the Financing Sources, or as may be requested by the SEC in connection with the completion of the Debt FinancingBuyers;
(vi) provide facilitating the granting of a security interest (and perfection thereof) in collateral, including by cooperating with Buyers to Parent arrange for customary pay-off letters, lien terminations, notices and instruments of discharge to be delivered at Closing providing for the Financing Sources promptlypay-off, discharge and in any event at least five Business Days prior to termination on the Closing DateDate of all existing Indebtedness (subject to receipt from the Buyers of the funds necessary to effectuate the pay-off contemplated by such pay-off letters, lien terminations and instruments of discharge);
(vii) providing Buyers and Buyers’ financing sources promptly with all documentation and other information about regarding the Company Owners and its Affiliates requested in writing by Parent and Sellers required by the Financing Sources or regulatory authorities with respect to the Debt Financing under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act;
(vii) (A) request customary comfort letters USA Patriot Act of 2001, as amended from the Company’s independent registered public accounting firm (including customary “negative assurances”), (B) request the Company’s independent registered public accounting firm time to consent to the inclusion or incorporation of their audit reports with respect to the Required Financial Information in any filing or registration statement of Parent with the SEC or any prospectus, offering memoranda, private placement memoranda, marketing material or similar documentation, including by providing customary representation letters, and (C) request the Company’s independent registered public accounting firm to reasonably cooperate with Parent and its Representatives, including by participating in accounting due diligence sessions at times and at locations reasonably acceptable to the Company and its independent registered public accounting firmtime;
(viii) subject to customary confidentiality provisions, provide providing customary authorization letters (letters, in a form and on terms reasonably acceptable to the Company) Sellers, to the Financing Sources Buyers’ financing sources authorizing the distribution of information to prospective lenders or investors, including, if requested, containing a representation to the Financing Sources that the public side versions of such documents, if any, do not include material non-public information about the Company or its Affiliates;lenders; and
(ix) deliver notices of prepayment and/or notices for termination of commitments within the time periods required cooperating with Buyers’ financing sources and their respective agents with respect to their due diligence, including (A) giving access to documentation reasonably requested by the Credit Agreement and obtain payoff letters, lien terminations and releases and instruments of discharge, all in customary form, to be delivered at Closing providing for the payoff in full on the Closing Date of any amounts due under the Credit Agreement and for the termination of all obligations thereunder (other than other such obligations under the Credit Agreement that expressly by their terms survive such payoff, discharge and termination) and releasing, discharging and terminating any liens and other security interests created under any security documents persons in connection with capital markets transactions and (B) permitting Buyers’ financing sources and other lenders to evaluate Sellers’ current assets, receivables and inventory for the Credit Agreement purposes of establishing collateral arrangements as of the Closing (and using reasonable best efforts to provide all related obligations thereunder relevant information or documentation reasonably requested in connection therewith) (provided that, for the avoidance of doubt, the permissions afforded to the financing sources and under each security documents (other than obligations under lenders and the efforts to provide such security documents information and documentation does not require that expressly by their terms survive any such payoffaudits, discharge appraisals and terminationevaluations be completed, or any such information be furnished, as conditions to Closing);.
(xc) assisting in the preparation of, and executing and delivering, one or more credit agreements, unsecured notes, indentures and other definitive financing documents or other customary certificates (but not solvency certificates) and customary documents as may be reasonably requested by Parent which are necessary and customary in connection with the Debt Financing (which agreements, notes, indentures and other documents to which the Company is a party will be conditioned on the consummation of the Transactions);
(xi) consent to the use of the trademarks, service marks and logos of the Company or any of its Subsidiaries in connection with the Debt Financing; provided that such trademarks, service marks and logos are used solely in a manner that is not intended to or is not reasonably likely to harm or disparage the Company or any of its Subsidiaries; and
(xii) taking all other corporate actions, subject to the occurrence of the Closing, as may be reasonably necessary to permit the consummation of the Debt Financing. Notwithstanding the foregoing, (1i) neither none of the Company nor any of its Subsidiaries Owners, Sellers or their respective Representatives shall be required to pay any fees(A) authorize, expenses or costs or incur any liability or obligations in connection with the Debt Financing, unless Parent reimburses or is required to indemnify the Company and its Subsidiaries pursuant to this Agreement or otherwise, (2) none of the Company, its Subsidiaries or their respective officers, directors or employees shall be required to execute or enter into or perform under any agreement (other than authorization and representation letters as set forth herein) with respect to the Debt Financing that is not contingent upon the Closing occurring or that would be effective prior to the Effective Time (other than authorization letters contemplated by Section 6.05(a)(viii))Closing, (3B) none take any action that would unreasonably interfere with the ongoing operations of the CompanyBusiness or Sellers, its Subsidiaries (C) take any action that would cause any representation or their respective officers, directors warranty in this Agreement to be breached or employees (D) take any action that would cause any condition to Closing set forth in Article 7 to fail to be satisfied; (ii) Sellers shall not be required to deliver make any certificate representation, warranties or certifications as to which, after Sellers’ use of reasonable best efforts to cause such representation, warranty or certification to be true, Sellers in their good faith determined that such Person reasonably believesrepresentation, in good faith, contains any untrue certifications warranty or opinions, certification is not true; and (4iii) none of the Companynothing shall obligate Sellers to provide, or cause to be provided, any legal opinion by its Subsidiaries counsel, or their respective officers, directors or employees shall be required to provide any information the disclosure of which is prohibited or restricted under Applicable Law or the Company’s organizational documents or which is legally privileged or which is otherwise subject take any action to the confidentiality provisions.
(b) The Company shall provide extent it would result in a violation of any applicable Legal Requirements or loss of any privilege. Sellers hereby consent to the Required Financial Information, together use of their logos in connection with the other information required under Section 6.05(a), to Parent Debt Financing; provided that such logos are used solely in a manner that does not contain violate any untrue statement existing contractual obligation of a material fact or omit to state a material fact necessary to make such information, in light of the circumstances under which the statements contained in such information were made, not misleading. The Company shall notify Parent in writing if the Company determines that (i) any untrue statement of a material fact or omission of any material fact necessary to make such information, in light of the circumstances under which the statements contained in such information were made, not misleading exists with regard to any such information, (ii) any Required Financial Information must be restated or (iii) the Company’s independent registered public accounting firm has withdrawn any audit opinion with respect to any financial statements contained in the Required Financial InformationSellers.
(c) Parent shall, promptly upon written request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses (including reasonable and documented attorneys’ fees) incurred by the Company or any of its Subsidiaries in satisfying its obligations under this Section 6.05. Parent, HoldCo and Merger Sub shall, on a joint and several basis, indemnify and hold harmless the Company and its Subsidiaries and their respective Representatives (each an “Indemnified Party”) from and against any and all losses, claims, damages, liabilities, costs, reasonable attorneys’ fees, judgments, fines, penalties and amounts (including amounts paid in settlement and all interest, assessments and other charges paid or payable in connection with or in respect of any thereof), joint or several, to which such Indemnified Party may become subject, under the Securities Act, the Exchange Act, other Federal or state statutory or other laws or regulations or otherwise, insofar as such losses, claims, damages, liabilities costs, reasonable attorney’s fees, judgements fines, penalties, and amounts paid in settlement (or actions in respect thereof) arise out of or are based upon or suffered or incurred in connection with any action taken (or failure to act) by the Financing Sources, Parent, its Subsidiaries, or any of their respective Affiliates or the Company, any of its Subsidiaries or any of their respective Representatives pursuant to this Section 6.05 (other than the use of any information provided by the Company, any of its Subsidiaries or any of their respective Representatives in writing for use in connection with the Debt Financing), except to the extent such losses, claims, damages, liabilities, costs, reasonable attorneys’ fees, judgments, fines, penalties and amounts paid in settlement are determined by a final non-appealable judgment of a court of competent jurisdiction to have arisen out of, or resulted from, the gross negligence or willful misconduct of, or a Willful Breach by, the Company, any of its Subsidiaries or any of their respective Representatives.
Appears in 1 contract
Samples: Asset Purchase Agreement (United Rentals North America Inc)
Financing Assistance. (a) The Company Purchaser intends to pay the Closing Purchase Price and positive adjustments thereto, if any, payable in accordance with Section 2.9 from available liquid funds; provided, however, that Purchaser shall have the option to finance the Closing Purchase Price and positive adjustments thereto by entering into any finance arrangements prior to the Closing Date in order to optimize its capital structure. In the period between the date hereof and the Closing Date, Seller shall, and shall cause its Subsidiaries at the sole expense of Purchaser, use reasonable best efforts to, and shall use its commercially reasonable best efforts to cause each of the other Seller Entities, the Purchased Controlled Companies and its and their respective Representatives (including legalrespective, taxofficers, regulatory directors and accounting advisors) employees to, provide such cooperation with Purchaser as may be reasonably required by Purchaser and that is necessary and customary to support Purchaser’s financing for the Closing Purchase Price, positive adjustments thereto and replacements of such financing by the entering into customary finance arrangements (including, but not limited to, loans and bond issuances). Such cooperation shall, in particular, consist of the following obligations:
(a) using reasonable best efforts to furnish, or cause third parties to furnish, Purchaser and its financing sources with historical financial and other pertinent business and other pertinent information, documents and materials (including financial statements and related audit reports) regarding the Purchased Companies, the Purchased Assets and the other assets of the Purchased Controlled Companies, as may be reasonably requested by Parent Purchaser to the extent that such information is required in connection with such alternative financing; provided that (A) Seller, the other Seller Entities and the Purchased Controlled Companies shall only be obligated to deliver such information to the extent such information may be obtained from the Books and Records of Seller and the Business and (B) Seller, the other Seller Entities and the Purchased Controlled Companies shall not be obligated to furnish any Excluded Information;
(b) (i) solely with respect to financial information and data derived from the Business’s historical Books and Records, assist Purchaser in connection with Purchaser’s preparation of customary pro forma financial statements, only to the extent reasonably required for any alternative financings of such type, it being agreed that information and assistance will not be required relating to (1) 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, (2) any post-Closing or pro forma cost savings, synergies, capitalization, ownership or other pro forma adjustments desired to be incorporated into any information used in connection with such financing or (3) any financial information related to Purchaser or any of its Affiliates or any adjustments that are not directly related to the acquisition of the Business by Purchaser, (ii) solely with respect to the Business Financial Statements and financial information and data derived from the Business’s historical Books and Records, to the extent reasonably expected to be used in connection with the Debt Financing (provided that such cooperation does not unreasonably interfere alternative financing, reasonably cooperating with the ongoing operations commencement of the Company preparation of a reconciliation of certain line items in the required financial statements to reflect the material differences between GAAP and its Subsidiaries)International Financial Reporting Standards, which cooperation shall(iii) if requested and on reasonable notice, causing members of management of the Business to participate in one virtual lender meeting, and otherwise, a reasonable number of meetings, drafting sessions, lender presentations, road shows, sessions with prospective lenders and investors, due diligence sessions and sessions with rating agencies in connection with available financing sources’ due diligence, to the extent requestedcustomary, include:
in each case, at reasonable times and, if applicable, at locations to be mutually agreed, (iiv) as promptly as reasonably practicable and assisting Purchaser in any event no later than the tenth Business Day preceding the Closing Date (such date, the “Delivery Deadline”) provide Parent and the Financing Sources with its preparation of (A) all historical consolidated balance sheets any offering documents, syndication documents and related audited materials, private placement memoranda, offering memoranda, lender and unaudited statements investor presentations, bank information memoranda (including the delivery of income, comprehensive income, shareholders’ equity customary representation letters as contemplated by any available financing) and cash flows of the Company similar documents and other historical financial information regarding the Company and its Subsidiaries, in either case required to be provided to the Financing Sources by the terms of any commitment letter or agreement entered into with any Financing Source, (B) audited consolidated balance sheets and related audited statements materials for rating agency presentations; provided that, in each case of income, comprehensive income, shareholders’ equity and cash flows of the Company for each of the three fiscal years most recently ended more than 90 days prior to the Closing Date, and unaudited consolidated balance sheets and related unaudited statements of income, comprehensive income, shareholders’ equity and cash flows of the Company for each subsequent fiscal quarter ended more than 45 days prior to the Closing Date, all such audited and unaudited statements complying with the requirements of Form F-4 for persons being acquired and Regulation S-X under the Securities Act for a non-issuer entity whose financial statements are filed in a registered offering of securities solely to satisfy Rule 3-05 of Regulation S-X, without giving effect to Rule 3-05(b)(4) of Regulation S-X (clauses (A) and (B), collectivelyany such materials and documentation that includes disclosure and financial statements with respect to the Business shall only reflect Purchaser as the obligor(s) and no such materials or documentation shall be issued by Seller, its Affiliates or the “Required Financial Information”Purchased Controlled Companies, (v) using reasonable best efforts to facilitate the obtaining of (A) customary comfort letters, authorization letters and consents of accountants and auditors with respect to financial statements and other financial information for Seller and any of its Subsidiaries for inclusion in any offering memorandum or other marketing documents or offering materials, (B) customary pay-off letters and customary lien terminations with respect to indebtedness of the Purchased Entities and the Seller Entities that is being paid off in connection with Closing and (C) such other historical financial any approvals reasonably required of the works councils (and other similar administrative bodies) of the Seller and its Subsidiaries and (viii) providing information regarding the Company and its Subsidiaries as Parent may reasonably request;
(ii) as promptly as reasonably practicable, and in any event no later than the Delivery Deadline, provide Parent and the Financing Sources with such information (financial or otherwise) relating to the Company and its Subsidiaries (including information to be used in the preparation of an information package regarding the business, operations and financial condition of Parent and the Company) reasonably necessary for Parent’s preparation of customary offering or information documents to be used for the completion of the Debt Financing;
(iii) cooperate and assist with the reasonable due diligence, rating agency processes and syndication and marketing efforts of Parent, its Representatives and the Financing Sources, including participating in a reasonable number of meetings (including one-on-one meetings with representatives of the Financing Sources, prospective lenders and prospective investors, on the one hand, and senior management and Representatives of the Company, in each case with appropriate seniority and expertise, on the other hand), due diligence sessions (including accounting due diligence sessions), drafting sessions and road shows, at reasonable times and on reasonable notice; provided that the Company and its Representatives will only be required to travel or attend any in person meetings for a period not to exceed five Business Days and each such Representative shall be reasonably compensated for his or her reasonable costs and expenses;
(iv) assist Parent in preparing customary offering memoranda, rating agency presentations, lender and investor presentations, confidential information memoranda, private placement memoranda, prospectuses, filings with the SEC and other similar documents prepared in connection with the Debt Financing, including delivery and consenting to the inclusion or incorporation of the Required Financial Information and all other historical financial and other information regarding the Company Seller and its Subsidiaries reasonably requested by Parent for use in any offering or information documents to be prepared in connection with the Debt Financing;
(v) make available, on a customary and reasonable basis and upon reasonable notice, appropriate personnel, including Representatives of the Company and its Subsidiaries, documents and information relating to the Company and its Subsidiaries, in each case, as may be reasonably requested by Parent, the Financing Sources, or as may be requested by the SEC in connection with the completion of the Debt Financing;
(vi) provide to Parent and the Financing Sources promptly, and in any event at least five Business Days prior to the Closing Date, all documentation and other information about the Company and its Affiliates requested in writing by Parent and required by the Financing Sources or regulatory authorities with respect to the Debt Financing under applicable “know your customer” and anti-money laundering rules and regulations, including to the PATRIOT Act;extent requested in writing by Purchaser at least five (5) Business Days prior to the Closing Date. Notwithstanding anything to the contrary in this Section 5.16, nothing will require Seller, the other Seller Entities or the Purchased Controlled Companies to provide (or be deemed to require Seller, the other Seller Entities or the Purchased Controlled Companies to prepare) any (1) pro forma financial statements, (2) description of all or any portion of any alternative financing and other information customarily provided by financing sources or their counsel, (3) risk factors relating to all or any component of any alternative financing or (4) “segment” financial information (“Excluded Information”).
(viic) Notwithstanding anything herein to the contrary, (i) such requested cooperation shall not (A) request customary comfort letters from unreasonably disrupt or interfere with the Company’s independent registered public accounting firm business or the operations of Seller, its Affiliates or the Purchased Controlled Companies, including the Business, or (B) cause significant competitive harm to Seller, its Affiliates or the Purchased Controlled Companies, including customary “negative assurances”)the Business, if the transactions contemplated by this Agreement are not consummated, (ii) nothing in this Section 5.16 shall require cooperation to the extent that it would (A) subject any of Seller’s, its Affiliates’ or the Purchased Controlled Companies’ respective directors, managers, officers or employees to any actual or potential personal Liability, (B) request reasonably be expected to conflict with, or violate, the Company’s independent registered public accounting firm to consent to Seller’s, its Affiliates’ or the inclusion or incorporation of their audit reports with respect to the Required Financial Information in any filing or registration statement of Parent with the SEC Purchased Controlled Companies’ organization documents or any prospectusapplicable Law or Judgment, offering memorandaor result in the contravention of, private placement memorandaor violation or breach of, marketing material or similar documentationdefault under, including by providing customary representation lettersany Contract to which Seller, and any of its Affiliates or any of the Purchased Controlled Companies is a party, (C) request the Company’s independent registered public accounting firm to reasonably cooperate with Parent and its Representatives, including by participating in accounting due diligence sessions at times and at locations reasonably acceptable cause any condition to the Company and Closing set forth in Section 7.1, Section 7.2 or Section 7.3 to not be satisfied or (D) cause any material breach of this Agreement, (iii) none of Seller, any of its independent registered public accounting firm;
Affiliates or any of the Purchased Controlled Companies shall be required to (viiiA) subject to customary confidentiality provisions, provide customary authorization letters (in a form and on terms reasonably acceptable to the Company) to the Financing Sources authorizing the distribution of information to prospective lenders pay any commitment or investors, including, if requested, containing a representation to the Financing Sources that the public side versions of such documents, if any, do not include material non-public information about the Company other similar fee or its Affiliates;
(ix) deliver notices of prepayment and/or notices for termination of commitments within the time periods required by the Credit Agreement and obtain payoff letters, lien terminations and releases and instruments of discharge, all in customary form, to be delivered at Closing providing for the payoff in full on the Closing Date of incur or assume any amounts due under the Credit Agreement and for the termination of all obligations thereunder (Liability or other than other such obligations under the Credit Agreement that expressly by their terms survive such payoff, discharge and termination) and releasing, discharging and terminating any liens and other security interests created under any security documents obligation in connection with the Credit Agreement and all related obligations thereunder and under each security documents (any alternative financing or be required to take any action that would subject it to actual or potential Liability, to bear any cost or expense or to make any other than obligations under such security documents that expressly by their terms survive such payoff, discharge and termination);
(x) assisting in the preparation of, and executing and delivering, one payment or more credit agreements, unsecured notes, indentures and other definitive financing documents or other customary certificates (but not solvency certificates) and customary documents as may be reasonably requested by Parent which are necessary and customary agree to provide any indemnity in connection with any alternative financing or any information utilized in connection therewith, (B) deliver or obtain opinions of internal or external counsel, (C) provide access to or disclose information where Seller determines that such access or disclosure could jeopardize the Debt Financing attorney-client privilege or contravene any applicable Law or Contract or is otherwise subject to the Access Limitations or other limitations contained in Section 5.4(b) or (which agreements, notes, indentures and D) waive or amend any terms of this Agreement or any other documents Contract to which the Seller, any of its Affiliates or any Purchased Company is a party will be conditioned on the consummation party, (iv) none of the Transactions);
(xi) consent to the use of the trademarks, service marks and logos of the Company Seller or any of its Subsidiaries Affiliates, other than the Purchased Controlled Companies, or their respective directors, officers or employees, acting in connection with the Debt Financing; provided that such trademarkscapacity, service marks and logos are used solely in a manner that is not intended to or is not reasonably likely to harm or disparage the Company or any of its Subsidiaries; and
(xii) taking all other corporate actions, subject to the occurrence of the Closing, as may be reasonably necessary to permit the consummation of the Debt Financing. Notwithstanding the foregoing, (1) neither the Company nor any of its Subsidiaries shall be required to pay execute, deliver or enter into or perform any feesagreement, expenses document or costs instrument, including any definitive agreement with respect to any alternative financing or incur adopt any liability resolutions or obligations in connection with take any other actions approving the Debt Financingagreements, unless Parent reimburses or is required to indemnify the Company documents and its Subsidiaries instruments pursuant to this Agreement or otherwisewhich any alternative financing is obtained, and (2v) none of the Company, its Subsidiaries Purchased Controlled Companies or their respective officersdirectors, directors officers or employees shall be required to execute execute, deliver or enter into into, or perform under any agreement agreement, document or instrument (including pledging of any collateral), with respect to the Debt Financing any alternative financing that is not contingent upon the Closing occurring or that would be effective prior to the Effective Time (other than authorization letters contemplated by Section 6.05(a)(viii)), (3) none Closing Date and the directors and managers of the Company, its Subsidiaries or their respective officers, directors or employees Purchased Controlled Companies shall not be required to deliver any certificate adopt resolutions approving the agreements, documents and instruments pursuant to which an alternative financing is obtained unless Purchaser shall have determined that such Person reasonably believes, in good faith, contains any untrue certifications or opinions, directors and (4) none managers are to remain as directors and managers of the CompanyPurchased Controlled Companies on and after the Closing Date and such resolutions are contingent upon the occurrence of, its Subsidiaries or their respective officersonly effective as of, directors or employees shall be required to provide any information the disclosure of which is prohibited or restricted under Applicable Law or the Company’s organizational documents or which is legally privileged or which is otherwise subject to the confidentiality provisionsClosing.
(bd) The Company Seller, the Seller Entities and the Purchased Controlled Companies shall provide the Required Financial Information, together with the have no Liability whatsoever to Purchaser in respect of any financial information or data or other information required under Section 6.05(a), provided pursuant to Parent in a manner that does not contain any untrue statement of a material fact or omit to state a material fact necessary to make such information, in light of the circumstances under which the statements contained in such information were made, not misleading. The Company shall notify Parent in writing if the Company determines that (i) any untrue statement of a material fact or omission of any material fact necessary to make such information, in light of the circumstances under which the statements contained in such information were made, not misleading exists with regard to any such information, (ii) any Required Financial Information must be restated or (iii) the Company’s independent registered public accounting firm has withdrawn any audit opinion with respect to any financial statements contained in the Required Financial Information.
(c) Parent shall, promptly upon written request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses (including reasonable and documented attorneys’ fees) incurred by the Company or any of its Subsidiaries in satisfying its obligations under this Section 6.055.16. ParentPurchaser shall indemnify, HoldCo and Merger Sub shall, on a joint and several basis, indemnify defend and hold harmless each of Seller, its Affiliates, the Company and its Subsidiaries Purchased Controlled Companies, and their respective Representatives (each an “Indemnified Party”) from and against any and all losses, claims, damages, liabilities, costs, reasonable attorneys’ fees, judgments, fines, penalties and amounts (including amounts paid in settlement and all interest, assessments and other charges paid or payable in connection with or in respect of any thereof), joint or several, to which such Indemnified Party may become subject, under the Securities Act, the Exchange Act, other Federal or state statutory or other laws or regulations or otherwise, insofar as such losses, claims, damages, liabilities costs, reasonable attorney’s fees, judgements fines, penalties, and amounts paid in settlement (or actions in respect thereof) arise out of or are based upon or Liabilities suffered or incurred by them in connection with any action taken (or failure to act) by alternative financing and the Financing Sources, Parent, its Subsidiaries, or any performance of their respective obligations under this Section 5.16 and the provision of any information utilized in connection therewith. Purchaser shall, promptly upon request of Seller, reimburse Seller, its Affiliates and the Purchased Controlled Companies for all out-of-pocket fees, costs and expenses (including (i) reasonable and documented outside attorneys’ fees and (ii) fees and expenses of the Seller’s, its Affiliates’ and the Purchased Controlled Companies’ accounting firms engaged to assist in connection with such alternative financing or the repayment of the Funded Debt, including participating in any meetings) to the extent incurred by Seller, its Affiliates or the Company, any of its Subsidiaries or any Purchased Controlled Companies (including those of their respective Representatives pursuant to this Section 6.05 (other than the use of any information provided by the Company, any of its Subsidiaries or any of their respective Representatives in writing for use Representatives) in connection with the Debt Financing)cooperation required by this Section 5.16.
(e) For the avoidance of doubt, except the parties hereto acknowledge and agree that the provisions contained in this Section 5.16 represent the sole obligation of Seller, its Affiliates, the Purchased Companies and their respective Representatives with respect to cooperation in connection with the arrangement of any alternative financing and no other provision of this Agreement (including the Exhibits and Schedules hereto) shall be deemed to expand or modify such obligations. Seller shall be deemed to have complied with this Section 5.16 for the purpose of any condition set forth in Section 7.1, Section 7.2 or Section 7.3, unless (i) Seller has materially breached its obligations under this Section 5.16, (ii) Purchaser has notified Seller of such breach in writing in good faith, detailing in good faith reasonable steps that comply with this Section 5.16 in order to cure such breach, (iii) Seller has not taken such steps or otherwise cured such breach with reasonably sufficient time prior to the extent Closing Date to consummate the alternative financing and (iv) the alternative financing has not been consummated prior to the Closing Date and the material breach by the Seller is the cause of such losses, claims, damages, liabilities, costs, reasonable attorneys’ fees, judgments, fines, penalties and amounts paid in settlement are determined by a final non-appealable judgment of a court of competent jurisdiction to have arisen out of, or resulted from, the gross negligence or willful misconduct of, or a Willful Breach by, the Company, any of its Subsidiaries or any of their respective Representativesfailure.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Johnson Controls International PLC)
Financing Assistance. (a) The Company shall, and shall cause its Subsidiaries to, and shall use its commercially reasonable efforts to cause each of their respective Representatives (including legal, tax, regulatory and accounting advisors) to, provide such cooperation as may be reasonably requested by Parent in connection with the Debt Financing (provided that such cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries), which cooperation shall, to the extent requested, include:
(i) as promptly as reasonably practicable and in any event no later than the tenth Business Day preceding the Closing Date (such date, the “"Delivery Deadline”") provide Parent and the Financing Sources with (A) all historical consolidated balance sheets and related audited and unaudited statements of income, comprehensive income, shareholders’ ' equity and cash flows of the Company and other historical financial information regarding the Company and its Subsidiaries, in either case required to be provided to the Financing Sources by the terms of any commitment letter or agreement entered into with any Financing Source, (B) audited consolidated balance sheets and related audited statements of income, comprehensive income, shareholders’ ' equity and cash flows of the Company for each of the three fiscal years most recently ended more than 90 days prior to the Closing Date, and unaudited consolidated balance sheets and related unaudited statements of income, comprehensive income, shareholders’ ' equity and cash flows of the Company for each subsequent fiscal quarter ended more than 45 days prior to the Closing Date, all such audited and unaudited statements complying with the requirements of Form F-4 for persons being acquired and Regulation S-X under the Securities Act for a non-issuer entity whose financial statements are filed in a registered offering of securities solely to satisfy Rule 3-05 of Regulation S-X, without giving effect to Rule 3-05(b)(4) of Regulation S-X (clauses (A) and (B), collectively, the “"Required Financial Information”") and (C) such other historical financial and other information regarding the Company and its Subsidiaries as Parent may reasonably request;
(ii) as promptly as reasonably practicable, and in any event no later than the Delivery Deadline, provide Parent and the Financing Sources with such information (financial or otherwise) relating to the Company and its Subsidiaries (including information to be used in the preparation of an information package regarding the business, operations and financial condition of Parent and the Company) reasonably necessary for Parent’s 's preparation of customary offering or information documents to be used for the completion of the Debt Financing;
(iii) cooperate and assist with the reasonable due diligence, rating agency processes and syndication and marketing efforts of Parent, its Representatives and the Financing Sources, including participating in a reasonable number of meetings (including one-on-one meetings with representatives of the Financing Sources, prospective lenders and prospective investors, on the one hand, and senior management and Representatives of the Company, in each case with appropriate seniority and expertise, on the other hand), due diligence sessions (including accounting due diligence sessions), drafting sessions and road shows, at reasonable times and on reasonable notice; provided that the Company and its Representatives will only be required to travel or attend any in person meetings for a period not to exceed five Business Days and each such Representative shall be reasonably compensated for his or her reasonable costs and expenses;
(iv) assist Parent in preparing customary offering memoranda, rating agency presentations, lender and investor presentations, confidential information memoranda, private placement memoranda, prospectuses, filings with the SEC and other similar documents prepared in connection with the Debt Financing, including delivery and consenting to the inclusion or incorporation of the Required Financial Information and all other historical financial and other information regarding the Company and its Subsidiaries reasonably requested by Parent for use in any offering or information documents to be prepared in connection with the Debt Financing;
(v) make available, on a customary and reasonable basis and upon reasonable notice, appropriate personnel, including Representatives of the Company and its Subsidiaries, documents and information relating to the Company and its Subsidiaries, in each case, as may be reasonably requested by Parent, the Financing Sources, or as may be requested by the SEC in connection with the completion of the Debt Financing;
(vi) provide to Parent and the Financing Sources promptly, and in any event at least five Business Days prior to the Closing Date, all documentation and other information about the Company and its Affiliates requested in writing by Parent and required by the Financing Sources or regulatory authorities with respect to the Debt Financing under applicable “"know your customer” " and anti-money laundering rules and regulations, including the PATRIOT Act;
(vii) (A) request customary comfort letters from the Company’s 's independent registered public accounting firm (including customary “"negative assurances”"), (B) request the Company’s 's independent registered public accounting firm to consent to the inclusion or incorporation of their audit reports with respect to the Required Financial Information in any filing or registration statement of Parent with the SEC or any prospectus, offering memoranda, private placement memoranda, marketing material or similar documentation, including by providing customary representation letters, and (C) request the Company’s 's independent registered public accounting firm to reasonably cooperate with Parent and its Representatives, including by participating in accounting due diligence sessions at times and at locations reasonably acceptable to the Company and its independent registered public accounting firm;
(viii) subject to customary confidentiality provisions, provide customary authorization letters (in a form and on terms reasonably acceptable to the Company) to the Financing Sources authorizing the distribution of information to prospective lenders or investors, including, if requested, containing a representation to the Financing Sources that the public side versions of such documents, if any, do not include material non-public information about the Company or its Affiliates;
(ix) deliver notices of prepayment and/or notices for termination of commitments within the time periods required by the Credit Agreement and obtain payoff letters, lien terminations and releases and instruments of discharge, all in customary form, to be delivered at Closing providing for the payoff in full on the Closing Date of any amounts due under the Credit Agreement and for the termination of all obligations thereunder (other than other such obligations under the Credit Agreement that expressly by their terms survive such payoff, discharge and termination) and releasing, discharging and terminating any liens and other security interests created under any security documents in connection with the Credit Agreement and all related obligations thereunder and under each security documents (other than obligations under such security documents that expressly by their terms survive such payoff, discharge and termination);
(x) assisting in the preparation of, and executing and delivering, one or more credit agreements, unsecured notes, indentures and other definitive financing documents or other customary certificates (but not solvency certificates) and customary documents as may be reasonably requested by Parent which are necessary and customary in connection with the Debt Financing (which agreements, notes, indentures and other documents to which the Company is a party will be conditioned on the consummation of the Transactions);
(xi) consent to the use of the trademarks, service marks and logos of the Company or any of its Subsidiaries in connection with the Debt Financing; provided that such trademarks, service marks and logos are used solely in a manner that is not intended to or is not reasonably likely to harm or disparage the Company or any of its Subsidiaries; and
(xii) taking all other corporate actions, subject to the occurrence of the Closing, as may be reasonably necessary to permit the consummation of the Debt Financing. Notwithstanding the foregoing, (1) neither the Company nor any of its Subsidiaries shall be required to pay any fees, expenses or costs or incur any liability or obligations in connection with the Debt Financing, unless Parent reimburses or is required to indemnify the Company and its Subsidiaries pursuant to this Agreement or otherwise, (2) none of the Company, its Subsidiaries or their respective officers, directors or employees shall be required to execute or enter into or perform under any agreement with respect to the Debt Financing that is not contingent upon the Closing occurring or that would be effective prior to the Effective Time (other than authorization letters contemplated by Section 6.05(a)(viii)), (3) none of the Company, its Subsidiaries or their respective officers, directors or employees shall be required to deliver any certificate that such Person reasonably believes, in good faith, contains any untrue certifications or opinions, and (4) none of the Company, its Subsidiaries or their respective officers, directors or employees shall be required to provide any information the disclosure of which is prohibited or restricted under Applicable Law or the Company’s 's organizational documents or which is legally privileged or which is otherwise subject to the confidentiality provisions.
(b) The Company shall provide the Required Financial Information, together with the other information required under Section 6.05(a), to Parent in a manner that does not contain any untrue statement of a material fact or omit to state a material fact necessary to make such information, in light of the circumstances under which the statements contained in such information were made, not misleading. The Company shall notify Parent in writing if the Company determines that (i) any untrue statement of a material fact or omission of any material fact necessary to make such information, in light of the circumstances under which the statements contained in such information were made, not misleading exists with regard to any such information, (ii) any Required Financial Information must be restated or (iii) the Company’s 's independent registered public accounting firm has withdrawn any audit opinion with respect to any financial statements contained in the Required Financial Information.
(c) Parent shall, promptly upon written request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses (including reasonable and documented attorneys’ ' fees) incurred by the Company or any of its Subsidiaries in satisfying its obligations under this Section 6.05. Parent, HoldCo and Merger Sub shall, on a joint and several basis, indemnify and hold harmless the Company and its Subsidiaries and their respective Representatives (each an “"Indemnified Party”") from and against any and all losses, claims, damages, liabilities, costs, reasonable attorneys’ ' fees, judgments, fines, penalties and amounts (including amounts paid in settlement and all interest, assessments and other charges paid or payable in connection with or in respect of any thereof), joint or several, to which such Indemnified Party may become subject, under the Securities Act, the Exchange Act, other Federal or state statutory or other laws or regulations or otherwise, insofar as such losses, claims, damages, liabilities costs, reasonable attorney’s 's fees, judgements fines, penalties, and amounts paid in settlement (or actions in respect thereof) arise out of or are based upon or suffered or incurred in connection with any action taken (or failure to act) by the Financing Sources, Parent, its Subsidiaries, or any of their respective Affiliates or the Company, any of its Subsidiaries or any of their respective Representatives pursuant to this Section 6.05 (other than the use of any information provided by the Company, any of its Subsidiaries or any of their respective Representatives in writing for use in connection with the Debt Financing), except to the extent such losses, claims, damages, liabilities, costs, reasonable attorneys’ ' fees, judgments, fines, penalties and amounts paid in settlement are determined by a final non-appealable judgment of a court of competent jurisdiction to have arisen out of, or resulted from, the gross negligence or willful misconduct of, or a Willful Breach by, the Company, any of its Subsidiaries or any of their respective Representatives.
Appears in 1 contract
Financing Assistance. (a) The Company shallFrom the date hereof until the Closing Date, U.S. Seller agrees to use reasonable best efforts to provide, and shall cause its Subsidiaries tothe Group Companies and their respective officers, directors and employees to use, reasonable best efforts to provide and shall use its commercially reasonable best efforts to cause each of direct its and their respective Representatives (including legalto provide, taxin each case at Purchaser’s sole expense, regulatory and accounting advisors) to, provide such cooperation as may be reasonably requested by Parent Purchaser that is necessary and customary for financings of the type contemplated in connection with the Debt Financing (provided that such cooperation does not unreasonably interfere arrangement of any debt financing as may be obtained by Purchaser in connection with the ongoing operations of Transaction (the Company and its Subsidiaries“Debt Financing”), which cooperation shall, to the extent requested, include:
including using reasonable best efforts to: (i) as promptly as reasonably practicable furnish to Purchaser and in any event no later than the tenth Business Day preceding the Closing Date (such date, the “Delivery Deadline”) provide Parent and the Financing Sources with prospective lenders (A) all historical consolidated balance sheets the Business Carveout Financial Statements and related audited and unaudited statements of income, comprehensive income, shareholders’ equity and cash flows of the Company and other historical financial information regarding the Company and its Subsidiaries, in either case required to be provided to the Financing Sources by the terms of any commitment letter or agreement entered into with any Financing Source, (B) audited consolidated the unaudited balance sheets and related audited statements of income, comprehensive income, shareholders’ equity and cash flows sheet of the Company for each of Business and the three fiscal years most recently ended more than 90 days prior to the Closing Date, and unaudited consolidated balance sheets and related unaudited statements of income, comprehensive income, shareholders’ equity and cash flows income as of the Company for last day of each subsequent fiscal quarter ended more than 45 days prior to Closing (it being understood, for the Closing Dateavoidance of doubt, all such audited and unaudited statements complying that no audit or note review procedures shall be required to be performed on or with respect to the requirements of Form F-4 for persons being acquired and Regulation S-X under the Securities Act for a non-issuer entity whose financial statements that are filed the subject of this clause (i)(B)); provided that (1) Sellers and the Group Companies shall only be obligated to deliver such information to the extent such information may be obtained from the Books and Records of Sellers and the Business without undue effort or expense and without any delay in a registered offering timing of securities solely to satisfy Rule 3-05 the consummation of Regulation S-X, without giving effect to Rule 3-05(b)(4) of Regulation S-X (clauses (A) the transactions contemplated by this Agreement and (B), collectively, 2) Sellers and the “Required Financial Group Companies shall not be obligated to furnish any of the Excluded Information”) and (C) such other historical financial and other information regarding the Company and its Subsidiaries as Parent may reasonably request;
; (ii) as promptly as reasonably practicable, upon reasonable prior notice and in any event no later than the Delivery Deadline, provide Parent at reasonable times and the Financing Sources with such information (financial or otherwise) relating to the Company and its Subsidiaries (including information locations to be used in the preparation mutually agreed, cause members of an information package regarding the business, operations and financial condition of Parent and the Company) reasonably necessary for Parent’s preparation of customary offering or information documents to be used for the completion management of the Debt Financing;
(iii) cooperate and assist with the reasonable due diligence, rating agency processes and syndication and marketing efforts of Parent, its Representatives and the Financing Sources, including participating Business to participate in a reasonable number of meetings (including one-on-one meetings and presentations with representatives of the Financing Sources, prospective lenders and prospective investors, on the one handlenders, and senior management and Representatives of sessions with the Companyratings agencies, in each case with appropriate seniority and expertise, on the other hand), due diligence sessions (including accounting due diligence sessions), drafting sessions and road shows, at reasonable times and on reasonable notice; provided that the Company and its Representatives will only be required to travel or attend any in person meetings for a period not to exceed five Business Days and each such Representative shall be reasonably compensated for his or her reasonable costs and expenses;
(iv) assist Parent in preparing customary offering memoranda, rating agency presentations, lender and investor presentations, confidential information memoranda, private placement memoranda, prospectuses, filings with the SEC and other similar documents prepared in connection with the Debt Financing, including delivery and consenting to the inclusion or incorporation of the Required Financial Information and all other historical financial and other information regarding the Company and its Subsidiaries reasonably requested by Parent for use in any offering or information documents to be prepared in connection with the Debt Financing;
(v) make available, on a customary and reasonable basis and upon reasonable notice, appropriate personnel, including Representatives of the Company and its Subsidiaries, documents and information relating to the Company and its Subsidiaries, in each case, as may be reasonably requested by Parent, the Financing Sources, or as may be requested by the SEC in connection with the completion of the Debt Financing;
(vi) provide to Parent and the Financing Sources promptly, and in any event at least five Business Days prior to the Closing Date, all documentation and other information about the Company and its Affiliates requested in writing by Parent and required by the Financing Sources or regulatory authorities with respect to the Debt Financing under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act;
(vii) (A) request customary comfort letters from the Company’s independent registered public accounting firm (including customary “negative assurances”), (B) request the Company’s independent registered public accounting firm to consent to the inclusion or incorporation of their audit reports with respect to the Required Financial Information in any filing or registration statement of Parent with the SEC or any prospectus, offering memoranda, private placement memoranda, marketing material or similar documentation, including by providing customary representation letters, and (C) request the Company’s independent registered public accounting firm to reasonably cooperate with Parent and its Representatives, including by participating in accounting due diligence sessions at times and at locations reasonably acceptable to the Company and its independent registered public accounting firm;
(viii) subject to customary confidentiality provisions, provide customary authorization letters (in a form and on terms reasonably acceptable to the Company) to the Financing Sources authorizing the distribution of information to prospective lenders or investors, including, if requested, containing a representation to the Financing Sources that the public side versions of such documents, if any, do not include material non-public information about the Company or its Affiliates;
(ix) deliver notices of prepayment and/or notices for termination of commitments within the time periods required by the Credit Agreement and obtain payoff letters, lien terminations and releases and instruments of discharge, all in customary form, to be delivered at Closing providing for the payoff in full on the Closing Date of any amounts due under the Credit Agreement and for the termination of all obligations thereunder (other than other such obligations under the Credit Agreement that expressly by their terms survive such payoff, discharge and termination) and releasing, discharging and terminating any liens and other security interests created under any security documents in connection with the Credit Agreement and all related obligations thereunder and under each security documents (other than obligations under such security documents that expressly by their terms survive such payoff, discharge and termination);
(x) assisting in the preparation of, and executing and delivering, one or more credit agreements, unsecured notes, indentures and other definitive financing documents or other customary certificates (but not solvency certificates) and customary documents as may be reasonably requested by Parent which are necessary and customary in connection with the Debt Financing and only to the extent customarily needed for syndicated credit financings; (which agreementsiii) cause members of management of the Business to reasonably (A) assist Purchaser in its preparation of any bank information memoranda and related lender presentations and identify any portion of the information set forth in any of the foregoing that would constitute material, notes, indentures and other documents to which non-public information if the Company is were a party will be conditioned on the consummation of the Transactions);
(xi) consent to the use of the trademarks, service marks and logos of the Company or any of its Subsidiaries in connection with the Debt Financing; provided that such trademarks, service marks and logos are used solely in a manner that is not intended to or is not reasonably likely to harm or disparage the Company or any of its Subsidiaries; and
(xii) taking all other corporate actions, subject to the occurrence of the Closing, as may be reasonably necessary to permit the consummation of the Debt Financing. Notwithstanding the foregoingpublic reporting company, (1B) neither the Company nor any of its Subsidiaries shall be required to pay any fees, expenses or costs or incur any liability or obligations in connection with the Debt Financing, unless Parent reimburses or is required to indemnify the Company and its Subsidiaries pursuant to this Agreement or otherwise, (2) none of the Company, its Subsidiaries or their respective officers, directors or employees shall be required to execute or enter into or perform under any agreement deliver customary authorization letters with respect to the Debt Financing bank information memoranda, (C) assist Purchaser in its preparation of materials for rating agency presentations; provided that is not contingent upon the Closing occurring any such bank information memoranda, lender presentations, offering memorandum or similar documents that would be effective prior includes disclosure and financial statements with respect to the Effective Time (other than authorization letters contemplated Business shall only reflect Purchaser as the obligor(s) and no such bank information memoranda, lender presentations or materials shall be issued by Section 6.05(a)(viii))Sellers, (3) none of the Company, its their Subsidiaries or their respective officers, directors or employees shall be required to deliver any certificate that such Person reasonably believes, in good faith, contains any untrue certifications or opinionsthe Group Companies, and (4D) none of the Company, its Subsidiaries or their respective officers, directors or employees shall be required to provide any information the disclosure of which is prohibited or restricted under Applicable Law or the Company’s organizational documents or which is legally privileged or which is otherwise subject to the confidentiality provisions.
(b) The Company shall provide the Required Financial Information, together with the other information required under Section 6.05(a), to Parent in a manner that does not contain any untrue statement of a material fact or omit to state a material fact necessary to make such information, in light of the circumstances under which the statements contained in such information were made, not misleading. The Company shall notify Parent in writing if the Company determines that (i) any untrue statement of a material fact or omission of any material fact necessary to make such information, in light of the circumstances under which the statements contained in such information were made, not misleading exists with regard to any such information, (ii) any Required Financial Information must be restated or (iii) the Company’s independent registered public accounting firm has withdrawn any audit opinion solely with respect to any financial statements contained in information and data derived from the Required Financial Information.
(c) Parent shallBusiness’s historical Books and Records, promptly upon written request by provide information to allow Purchaser to prepare the Company, reimburse the Company for all reasonable pro forma financial information and documented out-of-pocket costs and expenses (including reasonable and documented attorneys’ fees) incurred by the Company or any of its Subsidiaries in satisfying its obligations under this Section 6.05. Parent, HoldCo and Merger Sub shall, on a joint and several basis, indemnify and hold harmless the Company and its Subsidiaries and their respective Representatives (each an “Indemnified Party”) from and against any and all losses, claims, damages, liabilities, costs, reasonable attorneys’ fees, judgments, fines, penalties and amounts (including amounts paid in settlement and all interest, assessments and other charges paid or payable in connection with or in respect of any thereof), joint or several, to which such Indemnified Party may become subject, under the Securities Act, the Exchange Act, other Federal or state statutory or other laws or regulations or otherwise, insofar as such losses, claims, damages, liabilities costs, reasonable attorney’s fees, judgements fines, penalties, and amounts paid in settlement (or actions in respect thereof) arise out of or are based upon or suffered or incurred in connection with any action taken (or failure to act) by the Financing Sources, Parent, its Subsidiaries, or any of their respective Affiliates or the Company, any of its Subsidiaries or any of their respective Representatives pursuant to this Section 6.05 (other than the use of any information provided by the Company, any of its Subsidiaries or any of their respective Representatives in writing for use in connection with the Debt Financing), except to the extent such losses, claims, damages, liabilities, costs, reasonable attorneys’ fees, judgments, fines, penalties and amounts paid in settlement are determined by a final non-appealable judgment of a court of competent jurisdiction to have arisen out of, or resulted from, the gross negligence or willful misconduct of, or a Willful Breach by, the Company, any of its Subsidiaries or any of their respective Representatives.pro forma financial
Appears in 1 contract
Financing Assistance. (a) The Company shalland its Subsidiaries shall use commercially reasonable efforts to, and shall cause its Subsidiaries totheir respective officers, employees, representatives and shall advisors, including legal, financial and accounting advisors, to use its commercially reasonable efforts to cause each of their respective Representatives (including legal, tax, regulatory and accounting advisors) to, provide such cooperation as may be is reasonably requested by Parent in connection with the Debt Financing (provided that such cooperation does not unreasonably interfere obtaining or closing any financing transaction contemplated by Parent in connection with the ongoing operations consummation of the Company and its Subsidiaries)transactions contemplated hereby, which cooperation shall, to the extent requested, include:
including (i) as participating in a reasonable number of due diligence sessions (but not more than two in person meetings), (ii) providing reasonably promptly as reasonably practicable and in any event no later than the tenth Business Day preceding the Closing Date (such date, the “Delivery Deadline”) provide to Parent and the Financing Sources with (A) all historical consolidated balance sheets and related audited and unaudited statements of income, comprehensive income, shareholders’ equity and cash flows of the Company and other historical financial information regarding the Company and its Subsidiaries, in either case required to be provided to the Financing Sources by the terms of any commitment letter or agreement entered into with any Financing Source, (B) audited consolidated balance sheets and related audited statements of income, comprehensive income, shareholders’ equity and cash flows of the Company for each of the three fiscal years most recently ended more than 90 days prior to the Closing Date, and unaudited consolidated balance sheets and related unaudited statements of income, comprehensive income, shareholders’ equity and cash flows of the Company for each subsequent fiscal quarter ended more than 45 days prior to the Closing Date, all financing sources such audited and unaudited statements complying with the requirements of Form F-4 for persons being acquired and Regulation S-X under the Securities Act for a non-issuer entity whose financial statements are filed in a registered offering of securities solely to satisfy Rule 3-05 of Regulation S-X, without giving effect to Rule 3-05(b)(4) of Regulation S-X (clauses (A) and (B), collectively, the “Required Financial Information”) and (C) such other historical financial and other information regarding the Company and its Subsidiaries as Parent may is reasonably request;
(ii) as promptly as reasonably practicablerequired in order to obtain or consummate such financings, and in any event no later than the Delivery Deadlineincluding, provide Parent and the Financing Sources with such information (financial or otherwise) relating to the Company and its Subsidiaries (including information to be used in the preparation of an information package regarding the businesswithout limitation, operations and financial condition of Parent and the Company) reasonably necessary for Parent’s preparation of customary offering or information documents to be used for the completion a description of the Debt Financing;
(iii) cooperate and assist with the reasonable due diligence, rating agency processes and syndication and marketing efforts of Parent, its Representatives and the Financing Sources, including participating in a reasonable number of meetings (including one-on-one meetings with representatives of the Financing Sources, prospective lenders and prospective investors, on the one hand, and senior management and Representatives of the Company, in each case with appropriate seniority and expertise, on the other hand), due diligence sessions (including accounting due diligence sessions), drafting sessions and road shows, at reasonable times and on reasonable notice; provided that the Company and its Representatives will only be required to travel or attend any in person meetings for a period not to exceed five Business Days and each such Representative shall be reasonably compensated for his or her reasonable costs and expenses;
(iv) assist Parent in preparing customary offering memoranda, rating agency presentations, lender and investor presentations, confidential information memoranda, private placement memoranda, prospectuses, filings with the SEC and other similar documents prepared in connection with the Debt Financing, including delivery and consenting to the inclusion or incorporation of the Required Financial Information and all other historical financial and other information regarding the Company and its Subsidiaries reasonably requested by Parent for use in any offering or information documents to be prepared in connection with the Debt Financing;
(v) make available, on a customary and reasonable basis and upon reasonable notice, appropriate personnel, including Representatives business of the Company and its Subsidiaries, documents the financial information necessary to provide a customary presentation of EBITDA and information relating adjusted EBITDA for a 144A offering of debt securities and audited and unaudited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of the Company as of and for the most recent fiscal year ended at least 90 days prior to the Company Closing Date and its Subsidiaries, for each subsequent interim period ended at least 45 days prior to the Closing Date and each comparable fiscal period in each case, as may be reasonably requested by Parent, the Financing Sources, prior fiscal year or as may be requested by the SEC otherwise necessary in order to assist in receiving customary “comfort” (including “negative assurance” comfort) from independent accountants in connection with the completion offering(s) of the Debt Financing;
(vi) debt securities and, if required, using commercially reasonable efforts to cause its independent accountants to provide to Parent and the Financing Sources promptly, and in any event at least five Business Days prior to the Closing Date, all documentation and other information about the Company and its Affiliates requested in writing by Parent and required by the Financing Sources or regulatory authorities with respect to the Debt Financing under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act;
(vii) (A) request customary comfort letters from the Company’s independent registered public that such accounting firm (including customary “negative assurances”)firms are prepared to deliver upon Closing, (Biii) request the Company’s independent registered public accounting firm to consent to the inclusion or incorporation of their audit reports with respect to the Required Financial Information in any filing or registration statement of Parent with the SEC or any prospectusexecuting and delivering reasonable and customary certificates, offering memorandalegal opinions and other documentation required by such financings, private placement memoranda, marketing material or similar documentation, including by providing customary representation letters, and (Civ) request the Company’s independent registered public accounting firm to reasonably cooperate with Parent and its Representatives, including by participating in accounting due diligence sessions at times and at locations reasonably acceptable to the Company and its independent registered public accounting firm;
(viii) subject to customary confidentiality provisions, provide customary authorization letters (in a form and on terms reasonably acceptable to the Company) to the Financing Sources authorizing the distribution of information to prospective lenders or investors, including, if requested, containing a representation to the Financing Sources that the public side versions of such documents, if any, do not include material non-public information about the Company or its Affiliates;
(ix) deliver delivering notices of prepayment and/or notices for termination of commitments within the time periods required by the Credit Agreement and obtain payoff letters, lien terminations and releases and instruments of discharge, all in customary form, to be delivered at Closing providing agreements governing the existing indebtedness for the payoff in full on the Closing Date of any amounts due under the Credit Agreement and for the termination of all obligations thereunder (other than other such obligations under the Credit Agreement that expressly by their terms survive such payoff, discharge and termination) and releasing, discharging and terminating any liens and other security interests created under any security documents in connection with the Credit Agreement and all related obligations thereunder and under each security documents (other than obligations under such security documents that expressly by their terms survive such payoff, discharge and termination);
(x) assisting in the preparation of, and executing and delivering, one or more credit agreements, unsecured notes, indentures and other definitive financing documents or other customary certificates (but not solvency certificates) and customary documents as may be reasonably requested by Parent which are necessary and customary in connection with the Debt Financing (which agreements, notes, indentures and other documents to which the Company is a party will be conditioned on the consummation of the Transactions);
(xi) consent to the use of the trademarks, service marks and logos borrowed money of the Company or any of and its Subsidiaries in connection with the Debt Financing; provided that such trademarkswill be repaid at Closing, service marks and logos are used solely in a manner that is not intended to or is not reasonably likely to harm or disparage the Company or any of its Subsidiaries; and
(xiiv) taking all other reasonable formal corporate actions, subject to the occurrence of the Closing, as may be reasonably necessary to permit the consummation of the Debt Financing. Notwithstanding the foregoing, (1) neither the Company nor any of its Subsidiaries shall be required to pay any fees, expenses or costs or incur any liability or obligations requested by Parent in connection with the Debt Financingconsummation of such financing; provided, unless Parent reimburses or is however, that (A) the Company shall not be required to indemnify provide such cooperation to the extent such cooperation unreasonably interferes with the Company’s day to day operations or to produce the information in clause (ii) above (other than the business description and financial information and statements expressly described in clause (ii) above) if such information is unavailable to the Company and or its Subsidiaries pursuant production would cause undue burden to this Agreement or otherwise, (2) none of the Company, (B) Parent shall coordinate its Subsidiaries or their respective officers, directors or employees shall be required request for the Company’s assistance so as to execute or enter into or perform under minimize any agreement with respect disruption to the Debt Financing that is not contingent upon Company’s executive officers’ day to day responsibilities, and (C) no documentation executed or delivered by the Closing occurring or that would be Company pursuant to clause (iii) above shall become effective prior to the Effective Time (other than authorization letters contemplated by Section 6.05(a)(viii)), (3) none effectiveness of the Company, its Subsidiaries or their respective officers, directors or employees shall be required to deliver any certificate that Merger unless otherwise expressly agreed by the Company as such Person reasonably believes, in good faith, contains any untrue certifications or opinions, and (4) none of the Company, its Subsidiaries or their respective officers, directors or employees shall be required to provide any information the disclosure of which is prohibited or restricted under Applicable Law or the Company’s organizational documents or which is legally privileged or which is otherwise subject to the confidentiality provisions.
(b) The Company shall provide the Required Financial Information, together with the other information required under Section 6.05(a), to Parent in a manner that does not contain any untrue statement of a material fact or omit to state a material fact necessary to make such information, in light of the circumstances under which the statements contained in such information were made, not misleading. The Company shall notify Parent in writing if the Company determines that (i) any untrue statement of a material fact or omission of any material fact necessary to make such information, in light of the circumstances under which the statements contained in such information were made, not misleading exists with regard to any such information, (ii) any Required Financial Information must be restated or (iii) the Company’s independent registered public accounting firm has withdrawn any audit opinion have no liability with respect to any financial statements contained in the Required Financial Information.
(c) such documentation until such time. Parent shall, promptly upon written request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses (including reasonable and documented attorneys’ fees) incurred by the Company or any of its Subsidiaries in satisfying its obligations under this Section 6.05. Parent, HoldCo and Merger Sub shall, on a joint and several basis, indemnify and hold harmless the Company and its Subsidiaries and their respective Representatives (each an “Indemnified Party”) from and against any and all losses, claims, damages, liabilities, costs, reasonable attorneys’ fees, judgments, fines, penalties and amounts (including amounts paid in settlement and all interest, assessments and other charges paid or payable in connection with or in respect of any thereof), joint or several, to which such Indemnified Party may become subject, under the Securities Act, the Exchange Act, other Federal or state statutory or other laws or regulations or otherwise, insofar as such losses, claims, damages, liabilities costs, reasonable attorney’s fees, judgements fines, penalties, and amounts paid in settlement (or actions in respect thereof) arise out of or are based upon or suffered or incurred in connection with any action taken (or failure to act) by the Financing Sources, Parent, its Subsidiaries, or any of their respective Affiliates or the Company, any of its Subsidiaries or any of their respective Representatives pursuant to this Section 6.05 (other than the use of any information provided by the Company, any of its Subsidiaries or any of their respective Representatives in writing for use in connection with the Debt Financing), except cooperation contemplated by this Section 5.08. The Company shall notify Parent promptly if it restates or intends to the extent such losses, claims, damages, liabilities, costs, reasonable attorneys’ fees, judgments, fines, penalties and amounts paid in settlement are determined by a final non-appealable judgment restate any historical financial statements of a court of competent jurisdiction to have arisen out of, or resulted from, the gross negligence or willful misconduct of, or a Willful Breach by, the Company, in whole or in part, or otherwise indicates its intent or the need to restate any of its Subsidiaries the financial statements included in clause (ii) above, or that any of their respective Representativessuch restatement is under consideration.
Appears in 1 contract
Financing Assistance. (a) The Prior to the Closing, the Company shall, and shall cause its Subsidiaries to, and shall to use its and their commercially reasonable efforts to cause each of their respective Representatives (including legal, tax, regulatory and accounting advisors) to, provide such cooperation as may be reasonably requested by Parent in connection with the arrangement of the Debt Financing (which term shall include, for purposes of this Section 6.03(a) , any of the permanent financing referred to in the Debt Commitment Letters) ( provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries). Without limiting the generality of the foregoing sentence, which cooperation prior to the Closing, the Company shall, and shall cause its Subsidiaries to the extent requested, include:
use its and their commercially reasonable efforts to: (i) as promptly as reasonably practicable and in any event no later than provide information (financial or otherwise) relating to the tenth Business Day preceding the Closing Date (such date, the “Delivery Deadline”) provide Company to Parent and the Financing Sources with (A) all historical consolidated balance sheets and related audited and unaudited statements of income, comprehensive income, shareholders’ equity and cash flows of the Company and other historical financial information regarding the Company and its Subsidiaries, in either case required to be provided to the Financing Sources (including information to be used in the preparation of an information package regarding the business, operations, financial condition, financial projections and prospects of Parent and the Company customary or reasonably necessary for the completion of such financing) to the extent reasonably requested by Parent in connection with Parent’s preparation of customary offering or information documents to be used for the terms completion of any commitment letter or agreement entered into with any Financing Sourcethe Debt Financing, (Bii) cooperate and assist with the due diligence, rating agency processes and marketing efforts of Parent, its Representatives and the Financing Sources, including participating in a reasonable number of meetings, due diligence sessions and road shows, at times and at locations reasonably acceptable to the Company, (iii) reasonably assist Parent in preparing customary offering memoranda, rating agency presentations, lender and investor presentations, confidential information memoranda, financial statements, private placement memoranda, prospectuses, filings with the SEC and other similar documents, including delivery and consenting to the inclusion or incorporation in any SEC filing related to the Debt Financing or the Alternative Financing of (A) audited consolidated balance sheets and related audited statements of income, comprehensive income, shareholders’ equity and cash flows of the Company for each of the three fiscal years most recently ended more than 90 60 days prior to the Closing DateDate (and audit reports for such financial statements shall not be subject to any “going concern” qualifications), and (B) unaudited consolidated balance sheets and related unaudited statements of income, comprehensive income, shareholders’ equity and cash flows of the Company for each subsequent fiscal quarter ended more than 45 40 days prior to the Closing Date, all such audited and unaudited statements complying with the requirements of Form F-4 for persons being acquired and Regulation S-X under the Securities Act for a non-issuer entity whose financial statements are filed in a registered offering of securities solely to satisfy Rule 3-05 of Regulation S-X, without giving effect to Rule 3-05(b)(4) of Regulation S-X (clauses (A) and (B), collectively, the “Required Financial Information”) Date and (C) such other historical financial and other information regarding the Company and its Subsidiaries as Parent may reasonably request;
(ii) as promptly as reasonably practicable, and in any event no later than the Delivery Deadline, provide Parent and the Financing Sources with such information (financial or otherwise) relating to the Company and its Subsidiaries (including information to be used in the preparation of an information package regarding the business, operations and financial condition of Parent and the Company) reasonably necessary for Parent’s preparation of customary offering or information documents to be used for the completion of the Debt Financing;
(iii) cooperate and assist with the reasonable due diligence, rating agency processes and syndication and marketing efforts of Parent, its Representatives and the Financing Sources, including participating in a reasonable number of meetings (including one-on-one meetings with representatives of the Financing Sources, prospective lenders and prospective investors, on the one hand, and senior management and Representatives of the Company, in each case with appropriate seniority and expertise, on the other hand), due diligence sessions (including accounting due diligence sessions), drafting sessions and road shows, at reasonable times and on reasonable notice; provided that the Company and its Representatives will only be required to travel or attend any in person meetings for a period not to exceed five Business Days and each such Representative shall be reasonably compensated for his or her reasonable costs and expenses;
(iv) assist Parent in preparing customary offering memoranda, rating agency presentations, lender and investor presentations, confidential information memoranda, private placement memoranda, prospectuses, filings with the SEC and other similar documents prepared in connection with the Debt Financing, including delivery and consenting to the inclusion or incorporation of the Required Financial Information and all other historical financial and other information regarding the Company reasonably necessary to permit Parent to prepare pro forma financial statements customary for the bank financing and its Subsidiaries reasonably requested the debt securities offering contemplated by Parent for use in any offering or information documents to be prepared in connection with the Debt Financing or the Alternative Financing;
, (viv) make available, on a customary and reasonable basis and upon reasonable notice, appropriate personnel, including Representatives of the Company and its Subsidiaries, documents and information relating to the Company and its Subsidiaries, in each case, as may be reasonably requested by Parent, the Financing Sources, or as may be requested by the SEC in connection with the completion of the Debt Financing;
financing, (viv) provide to Parent and the Financing Sources promptly, and in any event at least five (5) Business Days prior to the Closing Date, all documentation and other information about the Company and its Affiliates requested in writing by Parent and required by the Financing Sources or regulatory authorities with respect to the Debt Financing under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act;
, that is required under the Debt Commitment Letters to the extent such documentation and other information is requested in writing to the Company at least 10 Business Days prior to the Closing Date, (viivi) (A) request customary comfort letters obtain any necessary consents from the Company’s independent registered public accounting firm (including customary “negative assurances”), (B) request the Company’s independent registered public accounting firm to consent to the inclusion or incorporation of their audit reports with respect to the Required Financial Information in any filing or registration statement of Parent with the SEC or any prospectus, offering memoranda, private placement memoranda, marketing material or similar documentation, including by providing customary representation letters, and (C) request the Company’s independent registered public accounting firm to reasonably cooperate with Parent and its Representatives, including by participating in accounting due diligence sessions at times and at locations reasonably acceptable to the Company and its independent registered public accounting firm;
(viii) subject to customary confidentiality provisions, provide customary authorization letters (in a form and on terms reasonably acceptable to the Company) to the Financing Sources authorizing the distribution of information to prospective lenders or investors, including, if requested, containing a representation to the Financing Sources that the public side versions of such documents, if any, do not include material non-public information about the Company or its Affiliates;
(ix) deliver notices of prepayment and/or notices for termination of commitments within the time periods required by the Credit Agreement and obtain payoff letters, lien terminations and releases and instruments of discharge, all in customary form, to be delivered at Closing providing for the payoff in full on the Closing Date of any amounts due under the Credit Agreement and for the termination of all obligations thereunder (other than other such obligations under the Credit Agreement that expressly by their terms survive such payoff, discharge and termination) and releasing, discharging and terminating any liens and other security interests created under any security documents in connection with the Credit Agreement and all related obligations thereunder and under each security documents (other than obligations under such security documents that expressly by their terms survive such payoff, discharge and termination);
(x) assisting in the preparation of, and executing and delivering, one or more credit agreements, unsecured notes, indentures and other definitive financing documents or other customary certificates (but not solvency certificates) and customary documents as may be reasonably requested by Parent which are necessary and customary in connection with the Debt Financing (which agreements, notes, indentures and other documents to which the Company is a party will be conditioned on the consummation of the Transactions);
(xi) consent to the use of the trademarks, service marks and logos of the Company or any of its Subsidiaries in connection with the Debt Financing; provided that such trademarks, service marks and logos are used solely in a manner that is not intended to or is not reasonably likely to harm or disparage the Company or any of its Subsidiaries; and
(xii) taking all other corporate actions, subject to the occurrence of the Closing, as may be reasonably necessary to permit the consummation of the Debt Financing. Notwithstanding the foregoing, (1) neither the Company nor any of its Subsidiaries shall be required to pay any fees, expenses or costs or incur any liability or obligations in connection with the Debt Financing, unless Parent reimburses or is required to indemnify the Company and its Subsidiaries pursuant to this Agreement or otherwise, (2) none of the Company, its Subsidiaries or their respective officers, directors or employees shall be required to execute or enter into or perform under any agreement with respect to the Debt Financing that is not contingent upon the Closing occurring or that would be effective prior to the Effective Time (other than authorization letters contemplated by Section 6.05(a)(viii)), (3) none of the Company, its Subsidiaries or their respective officers, directors or employees shall be required to deliver any certificate that such Person reasonably believes, in good faith, contains any untrue certifications or opinions, and (4) none of the Company, its Subsidiaries or their respective officers, directors or employees shall be required to provide any information the disclosure of which is prohibited or restricted under Applicable Law or the Company’s organizational documents or which is legally privileged or which is otherwise subject to the confidentiality provisions.
(b) The Company shall provide the Required Financial Information, together with the other information required under Section 6.05(a), to Parent in a manner that does not contain any untrue statement of a material fact or omit to state a material fact necessary to make such information, in light of the circumstances under which the statements contained in such information were made, not misleading. The Company shall notify Parent in writing if the Company determines that (i) any untrue statement of a material fact or omission of any material fact necessary to make such information, in light of the circumstances under which the statements contained in such information were made, not misleading exists with regard to any such information, (ii) any Required Financial Information must be restated or (iii) the Company’s independent registered public accounting firm has withdrawn any audit opinion with respect to any financial statements contained in the Required Financial Information.
(c) Parent shall, promptly upon written request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses (including reasonable and documented attorneys’ fees) incurred by the Company or any of its Subsidiaries in satisfying its obligations under this Section 6.05. Parent, HoldCo and Merger Sub shall, on a joint and several basis, indemnify and hold harmless the Company and its Subsidiaries and their respective Representatives (each an “Indemnified Party”) from and against any and all losses, claims, damages, liabilities, costs, reasonable attorneys’ fees, judgments, fines, penalties and amounts (including amounts paid in settlement and all interest, assessments and other charges paid or payable in connection with or in respect of any thereof), joint or several, to which such Indemnified Party may become subject, under the Securities Act, the Exchange Act, other Federal or state statutory or other laws or regulations or otherwise, insofar as such losses, claims, damages, liabilities costs, reasonable attorney’s fees, judgements fines, penalties, and amounts paid in settlement (or actions in respect thereof) arise out of or are based upon or suffered or incurred in connection with any action taken (or failure to act) by the Financing Sources, Parent, its Subsidiaries, or any of their respective Affiliates or the Company, any of its Subsidiaries or any of their respective Representatives pursuant to this Section 6.05 (other than the use of any information provided by the Company, any of its Subsidiaries or any of their respective Representatives in writing for use in connection filings with the Debt Financing), except to the extent such losses, claims, damages, liabilities, costs, reasonable attorneys’ fees, judgments, fines, penalties and amounts paid in settlement are determined by a final non-appealable judgment of a court of competent jurisdiction to have arisen out of, or resulted from, the gross negligence or willful misconduct of, or a Willful Breach by, the Company, any of its Subsidiaries or any of their respective Representatives.SEC,
Appears in 1 contract
Samples: Merger Agreement
Financing Assistance. (a) The Company shalland its Subsidiaries shall obtain the debt financing from financing sources consistent with those previously discussed with ADAH and in amounts sufficient to consummate the transacxxxxs contemplated by this Agreement, the Preferred Term Sheet, the Plan Terms, the GM Settlement and the Plan, such financing to be on then-prevailing market terms with respect to the applicable interest rate, redemption provisions and fees, and otherwise to be on terms that are acceptable to ADAH not to be unreasonably withheld (the "Debt Financinx"); provided, that if the Company delivers to ADAH definitive term sheets for such proposed debt finanxxxx that have been approved by the Company's board of directors and executed by the banks or other financing sources providing such debt financing reflecting then-prevailing market terms with respect to the applicable interest rate, redemption provisions and fees (a "Company Financing Proposal"), then ADAH shall cause inform the Company in writing (a "Financing Notice") whether or not the Company Financing Proposal is acceptable to it within five (5) Business Days of its Subsidiaries toreceipt of the definitive term sheets for such Company Financing Proposal. If, after the Company delivers to ADAH a Company Financing Proposal, ADAH fails to deliver a Xinancing Notice within five (5) Xxxiness Days or each of the following circumstances occurs, then the Company may terminate this Agreement and the transactions contemplated hereby may be abandoned: (x) ADAH delivers a Financing Notice in which it does not apxxxxe the Company Financing Proposal, (y) ADAH does not present to the Company, within 30 days of xxx delivery of the Financing Notice (the "Financing Decision Date"), an alternative written expression of interest to provide the Debt Financing with financing sources reasonably acceptable to the Company on terms more favorable to the Company than the Company Financing Proposal (a "Preferred Debt Financing") and (z) ADAH does not provide to the Company commitment letters xxxxuted by the banks or other financing sources providing such Preferred Debt Financing within 60 days of the Financing Decision Date. Delphi shall use its commercially reasonable best efforts to cause each implement any Preferred Debt Financing and to fulfill its other obligations pursuant to this Section 5(t). Subject to applicable regulatory or NASD requirements, Merrill and UBS (or their Affiliates) shall be entitled xx xxxxicipate in such Debt Financing on market terms. The Company and its Subsidiaries shall execute and deliver any commitment letters, underwriting or placement agreements, registration statements, pledge and security documents, other definitive financing documents, or other requested certificates or documents necessary or desirable to obtain the Debt Financing. The Company will (i) provide to ADAH and its counsel a copy of their respective Representatives all marketing information, xxrm sheets, commitment letters and agreements related to the Debt Financing and a reasonable opportunity to review and comment on such documents prior to such document being distributed, executed or delivered or filed with the Bankruptcy Court, (including legalii) duly consider in good faith any comments of ADAH and its counsel consistent with the Agreement, taxthe Xxxxerred Term Sheet and the Plan Terms and any other reasonable comments of ADAH and its counsel and shall not reject such comments xxxxout first discussing the reasons therefor with ADAH or its counsel and giving due consideration to the xxxxs of ADAH and its counsel, regulatory and accounting advisors(iii) to, provide such cooperation as may be keep ADAH reasonably requested by Parent in informed on a timely basis of developmenxx xn connection with the Debt Financing (provided that such cooperation does not unreasonably interfere and provide the Investors with the ongoing operations of the Company an opportunity to attend and its Subsidiaries), which cooperation shall, to the extent requested, include:
(i) as promptly as reasonably practicable and participate in any event no later than the tenth Business Day preceding the Closing Date (such date, the “Delivery Deadline”) provide Parent and the Financing Sources meetings and/or roadshows with (A) all historical consolidated balance sheets and related audited and unaudited statements of income, comprehensive income, shareholders’ equity and cash flows of the Company and other historical financial information regarding the Company and its Subsidiaries, in either case required to be provided to the Financing Sources by the terms of any commitment letter or agreement entered into with any Financing Source, (B) audited consolidated balance sheets and related audited statements of income, comprehensive income, shareholders’ equity and cash flows of the Company for each of the three fiscal years most recently ended more than 90 days prior to the Closing Date, and unaudited consolidated balance sheets and related unaudited statements of income, comprehensive income, shareholders’ equity and cash flows of the Company for each subsequent fiscal quarter ended more than 45 days prior to the Closing Date, all such audited and unaudited statements complying with the requirements of Form F-4 for persons being acquired and Regulation S-X under the Securities Act for a non-issuer entity whose financial statements are filed in a registered offering of securities solely to satisfy Rule 3-05 of Regulation S-X, without giving effect to Rule 3-05(b)(4) of Regulation S-X (clauses (A) and (B), collectively, the “Required Financial Information”) and (C) such other historical financial and other information regarding the Company and its Subsidiaries as Parent may reasonably request;
(ii) as promptly as reasonably practicable, and in any event no later than the Delivery Deadline, provide Parent and the Financing Sources with such information (financial or otherwise) relating to the Company and its Subsidiaries (including information to be used in the preparation of an information package regarding the business, operations and financial condition of Parent and the Company) reasonably necessary for Parent’s preparation of customary offering or information documents to be used for the completion potential providers of the Debt Financing;
(iii) cooperate and assist with the reasonable due diligence, rating agency processes and syndication and marketing efforts of Parent, its Representatives and the Financing Sources, including participating in a reasonable number of meetings (including one-on-one meetings with representatives of the Financing Sources, prospective lenders and prospective investors, on the one hand, and senior management and Representatives of the Company, in each case with appropriate seniority and expertise, on the other hand), due diligence sessions (including accounting due diligence sessions), drafting sessions and road shows, at reasonable times and on reasonable notice; provided that the Company and its Representatives will only be required to travel or attend any in person meetings for a period not to exceed five Business Days and each such Representative shall be reasonably compensated for his or her reasonable costs and expenses;
(iv) assist Parent in preparing customary offering memoranda, rating agency presentations, lender and investor presentations, confidential information memoranda, private placement memoranda, prospectuses, filings with the SEC and other similar documents prepared in connection with the Debt Financing, including delivery and consenting to the inclusion or incorporation of the Required Financial Information and all other historical financial and other information regarding the Company and its Subsidiaries reasonably requested by Parent for use in any offering or information documents to be prepared in connection with the Debt Financing;
(v) make available, on a customary and reasonable basis and upon reasonable notice, appropriate personnel, including Representatives of the Company and its Subsidiaries, documents and information relating to the Company and its Subsidiaries, in each case, as may be reasonably requested by Parent, the Financing Sources, or as may be requested by the SEC in connection with the completion of the Debt Financing;
(vi) provide to Parent and the Financing Sources promptly, and in any event at least five Business Days prior to the Closing Date, all documentation and other information about the Company and its Affiliates requested in writing by Parent and required by the Financing Sources or regulatory authorities with respect to the Debt Financing under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act;
(vii) (A) request customary comfort letters from the Company’s independent registered public accounting firm (including customary “negative assurances”), (B) request the Company’s independent registered public accounting firm to consent to the inclusion or incorporation of their audit reports with respect to the Required Financial Information in any filing or registration statement of Parent with the SEC or any prospectus, offering memoranda, private placement memoranda, marketing material or similar documentation, including by providing customary representation letters, and (C) request the Company’s independent registered public accounting firm to reasonably cooperate with Parent and its Representatives, including by participating in accounting due diligence sessions at times and at locations reasonably acceptable to the Company and its independent registered public accounting firm;
(viii) subject to customary confidentiality provisions, provide customary authorization letters (in a form and on terms reasonably acceptable to the Company) to the Financing Sources authorizing the distribution of information to prospective lenders or investors, including, if requested, containing a representation to the Financing Sources that the public side versions of such documents, if any, do not include material non-public information about the Company or its Affiliates;
(ix) deliver notices of prepayment and/or notices for termination of commitments within the time periods required by the Credit Agreement and obtain payoff letters, lien terminations and releases and instruments of discharge, all in customary form, to be delivered at Closing providing for the payoff in full on the Closing Date of any amounts due under the Credit Agreement and for the termination of all obligations thereunder (other than other such obligations under the Credit Agreement that expressly by their terms survive such payoff, discharge and termination) and releasing, discharging and terminating any liens and other security interests created under any security documents in connection with the Credit Agreement and all related obligations thereunder and under each security documents (other than obligations under such security documents that expressly by their terms survive such payoff, discharge and termination);
(x) assisting in the preparation of, and executing and delivering, one or more credit agreements, unsecured notes, indentures and other definitive financing documents or other customary certificates (but not solvency certificates) and customary documents as may be reasonably requested by Parent which are necessary and customary in connection with the Debt Financing (which agreements, notes, indentures and other documents to which the Company is a party will be conditioned on the consummation of the Transactions);
(xi) consent to the use of the trademarks, service marks and logos of the Company or any of its Subsidiaries in connection with the Debt Financing; provided that such trademarks, service marks and logos are used solely in a manner that is not intended to or is not reasonably likely to harm or disparage the Company or any of its Subsidiaries; and
(xii) taking all other corporate actions, subject to the occurrence of the Closing, as may be reasonably necessary to permit the consummation of the Debt Financing. Notwithstanding the foregoing, (1) neither the Company nor any of its Subsidiaries shall be required to pay any fees, expenses or costs or incur any liability or obligations in connection with the Debt Financing, unless Parent reimburses or is required to indemnify the Company and its Subsidiaries pursuant to this Agreement or otherwise, (2) none of the Company, its Subsidiaries or their respective officers, directors or employees shall be required to execute or enter into or perform under any agreement with respect to the Debt Financing that is not contingent upon the Closing occurring or that would be effective prior to the Effective Time (other than authorization letters contemplated by Section 6.05(a)(viii)), (3) none of the Company, its Subsidiaries or their respective officers, directors or employees shall be required to deliver any certificate that such Person reasonably believes, in good faith, contains any untrue certifications or opinions, and (4) none of the Company, its Subsidiaries or their respective officers, directors or employees shall be required to provide any information the disclosure of which is prohibited or restricted under Applicable Law or the Company’s organizational documents or which is legally privileged or which is otherwise subject to the confidentiality provisions.
(b) The Company shall provide the Required Financial Information, together with the other information required under Section 6.05(a), to Parent in a manner that does not contain any untrue statement of a material fact or omit to state a material fact necessary to make such information, in light of the circumstances under which the statements contained in such information were made, not misleading. The Company shall notify Parent in writing if the Company determines that (i) any untrue statement of a material fact or omission of any material fact necessary to make such information, in light of the circumstances under which the statements contained in such information were made, not misleading exists with regard to any such information, (ii) any Required Financial Information must be restated or (iii) the Company’s independent registered public accounting firm has withdrawn any audit opinion with respect to any financial statements contained in the Required Financial Information.
(c) Parent shall, promptly upon written request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses (including reasonable and documented attorneys’ fees) incurred by the Company or any of its Subsidiaries in satisfying its obligations under this Section 6.05. Parent, HoldCo and Merger Sub shall, on a joint and several basis, indemnify and hold harmless the Company and its Subsidiaries and their respective Representatives (each an “Indemnified Party”) from and against any and all losses, claims, damages, liabilities, costs, reasonable attorneys’ fees, judgments, fines, penalties and amounts (including amounts paid in settlement and all interest, assessments and other charges paid or payable in connection with or in respect of any thereof), joint or several, to which such Indemnified Party may become subject, under the Securities Act, the Exchange Act, other Federal or state statutory or other laws or regulations or otherwise, insofar as such losses, claims, damages, liabilities costs, reasonable attorney’s fees, judgements fines, penalties, and amounts paid in settlement (or actions in respect thereof) arise out of or are based upon or suffered or incurred in connection with any action taken (or failure to act) by the Financing Sources, Parent, its Subsidiaries, or any of their respective Affiliates or the Company, any of its Subsidiaries or any of their respective Representatives pursuant to this Section 6.05 (other than the use of any information provided by the Company, any of its Subsidiaries or any of their respective Representatives in writing for use in connection with the Debt Financing), except to the extent such losses, claims, damages, liabilities, costs, reasonable attorneys’ fees, judgments, fines, penalties and amounts paid in settlement are determined by a final non-appealable judgment of a court of competent jurisdiction to have arisen out of, or resulted from, the gross negligence or willful misconduct of, or a Willful Breach by, the Company, any of its Subsidiaries or any of their respective Representatives.
Appears in 1 contract
Samples: Equity Purchase and Commitment Agreement (Appaloosa Management Lp)
Financing Assistance. (a) The Company shall, and Omega shall cause use its Subsidiaries commercially reasonable efforts to, and shall use its commercially reasonable efforts to cause each of their respective its Subsidiaries and each of its and such Subsidiaries’ Representatives (including legalto, tax, regulatory and accounting advisors) toat the Buyer Parties’ sole expense, provide such cooperation to the Buyer Parties and their respective Affiliates and Representatives as they may be reasonably requested by Parent request in connection with the Debt Financing arrangements by the Buyer Parties to obtain, syndicate, market or arrange the closing and funding of any potential debt or equity financing customary for transactions of this size (provided that such cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiarieseach, a “Financing”), which cooperation shall, to the extent requested, includeincluding:
(i) as promptly as reasonably practicable and in any event no later than providing the tenth Business Day preceding Buyer Parties from time to time with financial information available to Omega regarding the Closing Date (such dateTarget Companies necessary to market, the “Delivery Deadline”) provide Parent and arrange, syndicate or obtain the Financing Sources with (Aincluding the unaudited (semi-annual) all historical condensed consolidated balance sheets and related audited and unaudited financial statements of incomeOCI Clean Fuels Limited as at and for the six (6)- month periods ended June 30, comprehensive income2023 and June 30, shareholders’ equity and cash flows of the Company and other historical financial information regarding the Company and its Subsidiaries, in either case required to be provided to the Financing Sources by the terms of any commitment letter or agreement entered into with any Financing Source, (B) audited consolidated balance sheets and related audited statements of income, comprehensive income, shareholders’ equity and cash flows of the Company for each of the three fiscal years most recently ended more than 90 days prior to the Closing Date, and unaudited consolidated balance sheets and related unaudited statements of income, comprehensive income, shareholders’ equity and cash flows of the Company for each subsequent fiscal quarter ended more than 45 days prior to the Closing Date, all such audited and unaudited statements complying with the requirements of Form F-4 for persons being acquired and Regulation S-X under the Securities Act for a non-issuer entity whose financial statements are filed in a registered offering of securities solely to satisfy Rule 3-05 of Regulation S-X, without giving effect to Rule 3-05(b)(4) of Regulation S-X (clauses (A) and (B2024), collectively, the “Required Financial Information”) and (C) such other historical financial and other information regarding the Company and its Subsidiaries as Parent may reasonably request;
(ii) as promptly as reasonably practicable, and in any event no later than the Delivery Deadline, provide Parent and the Financing Sources with such information (financial or otherwise) relating to the Company and its Subsidiaries (including information to be used in the preparation of an information package regarding the business, operations and financial condition of Parent and the Company) reasonably necessary for Parent’s preparation of customary offering or information documents to be used for the completion of the Debt Financing;
(iii) cooperate and assist with the reasonable due diligence, rating agency processes and syndication and marketing efforts of Parent, its Representatives and the Financing Sources, including participating in a reasonable number of meetings (including one-on-one meetings with representatives of relating to the Financing Sources, prospective lenders (which may be virtual) and prospective investors, on the one hand, and senior management and Representatives of the Company, in each case with appropriate seniority and expertise, on the other hand), due diligence sessions (including accounting due diligence sessions), drafting sessions and road shows, at reasonable times and on reasonable notice; provided that the Company and its Representatives will only be required to travel or attend any in person meetings for a period not to exceed five Business Days and each such Representative shall be reasonably compensated for his or her reasonable costs and expenses;
(iviii) assist Parent in preparing customary offering memoranda, rating agency presentations, lender and investor presentations, confidential information memoranda, private placement memoranda, prospectuses, filings cooperating with the SEC and other similar documents prepared Buyer Parties in connection with the Debt Financingapplications to obtain such consents, including delivery waivers, approvals or authorizations (and consenting to the inclusion or incorporation of the Required Financial Information and all other historical financial and other information regarding the Company and its Subsidiaries reasonably requested by Parent for use in any offering or information documents to be prepared in connection with the Debt Financing;
(v) make available, on a customary and reasonable basis and upon reasonable notice, appropriate personnel, including Representatives of the Company and its Subsidiaries, documents and information relating to the Company and its Subsidiaries, in each case, as evidence thereof) which may be reasonably requested by Parent, the Financing Sources, or as may be requested by the SEC necessary in connection with the completion any Financing, including preparation of the Debt Financing;
(vi) provide to Parent and the Financing Sources promptlymaterials for rating agency presentations and, and in any event promptly upon written request at least five ten (10) Business Days prior to the Closing Dateclosing of such Financing, all documentation and other information about the Company and its Affiliates requested required in writing by Parent and required by the Financing Sources or regulatory authorities connection with respect to the Debt Financing under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Actproceeds of crime Laws;
(viiiv) (A) request customary comfort letters from the Company’s independent registered public accounting firm (including customary “negative assurances”), (B) request the Company’s independent registered public accounting firm to consent furnishing to the inclusion Buyer Parties as promptly as reasonably practicable all reasonably available financial and other reasonably required or incorporation customary information regarding any of their audit reports the Target Companies or any combination thereof, and using commercially reasonable efforts to update any such information to the extent contained in an offering document if any of Omega, its Subsidiaries and each of its and such Subsidiaries’ Representatives becomes aware of any new material information;
(v) assisting the Buyer Parties in the preparation of reasonably required authorization letters with respect to the Required Financial Information information memoranda and packages and lender or investor presentations in connection with any filing or registration statement Financing and participating in a customary and reasonable number of Parent with the SEC or any prospectuspresentations, offering memoranda, private placement memoranda, marketing material road shows or similar documentation, including by providing customary representation letters, and (C) request the Company’s independent registered public accounting firm to reasonably cooperate sessions in connection with Parent and its Representatives, including by participating in accounting due diligence sessions at times and at locations reasonably acceptable to the Company and its independent registered public accounting firmsuch Financing;
(viiivi) subject to customary confidentiality provisions, provide customary authorization letters (in a form applicable Laws and on terms reasonably acceptable to the Company) to the Financing Sources authorizing the distribution of information to prospective lenders or investors, including, if requested, containing a representation to the Financing Sources that the public side versions of such documents, if any, do not include material non-public information about the Company or its Affiliates;
(ix) deliver notices of prepayment and/or notices for termination of commitments within the time periods required by the Credit Agreement and obtain payoff letters, lien terminations and releases and instruments of discharge, all in customary form, to be delivered at Closing providing for the payoff in full on the Closing Date obtaining of any amounts due under the Credit Agreement necessary consents in connection therewith, executing and for the termination of all obligations thereunder (other than other such obligations under the Credit Agreement that expressly by their terms survive such payoff, discharge delivering any pledge and termination) and releasing, discharging and terminating any liens and other security interests created under any security documents in connection with the Credit Agreement and all related obligations thereunder and under each security documents (other than obligations under such security documents that expressly by their terms survive such payoff, discharge and termination);
(x) assisting in the preparation of, and executing and delivering, one or more credit agreements, unsecured notes, indentures and other definitive financing documents or other customary certificates (but not solvency certificates) and customary documents as may be reasonably requested by Parent which are the Buyer Parties in connection with any Financing; provided that any obligations contained in such documents shall be effective no earlier than the Effective Time;
(vii) as promptly as reasonably practicable, providing quarterly financial statements of each Target Company;
(viii) as promptly as reasonably practicable, providing monthly financial statements of each Target Company, to the extent available and prepared by such Target Company or its Affiliates in the ordinary course of business;
(ix) providing reasonable and customary assistance to the Buyer Parties with the preparation of pro forma financial information and pro forma financial statements to the extent necessary and customary to be included in any materials required in connection with any Financing; and
(x) using commercially reasonable efforts to cause any Target Company’s current and former independent auditors to cooperate with obtaining any Financing, including causing such independent auditors to perform reviews of interim financial information and provide required accountant’s comfort letters in customary form (including “negative assurance” comfort) and any required consents; provided that, notwithstanding the Debt foregoing, it is understood the results of such reviews are not guaranteed.
(b) Notwithstanding anything to the contrary herein:
(i) it is acknowledged and agreed by the Buyer Parties that in no event shall (A) the receipt or availability of any Financing be a condition to the US/NL Closing or the JV Holdco Closing under Article VI or (which agreementsB) a breach by Omega or its applicable Subsidiary of its obligations under this Section 4.23 be considered in determining the satisfaction of the conditions set forth in Section 6.2(b) or Section 6.4(b), notes, indentures and other documents unless (solely with respect to which the Company this clause (B)) such breach is a party will be conditioned on Willful Breach and is a material and primary cause of Parent being unable to obtain the consummation proceeds of the TransactionsFinancing at the US/NL Closing or the JV Holdco Closing (as applicable);
(xiii) consent to such requested cooperation shall not unreasonably interfere with or disrupt the use ongoing operations of the trademarks, service marks and logos of the Company or any of its Subsidiaries in connection with the Debt Financing; provided that such trademarks, service marks and logos are used solely in a manner that is not intended to or is not reasonably likely to harm or disparage the Company Omega or any of its Subsidiaries; and;
(xiiiii) taking all other corporate actionssuch requested cooperation shall not impair, subject delay or prevent the satisfaction of any conditions set forth in Article VI;
(iv) none of Omega or its applicable Subsidiaries or any of their respective Affiliates or Representatives will be required to, in connection with any Financing: (A) prior to the occurrence of US/NL Closing or the JV Holdco Closing, as may be reasonably necessary to permit the consummation of the Debt Financing. Notwithstanding the foregoing, (1) neither the Company nor any of its Subsidiaries shall be required to pay any fees, expenses or costs or incur any commitment or other fee or any out-of-pocket expense, or incur any other expense, liability or obligations in connection with the Debt Financing, unless Parent reimburses or is required to indemnify the Company and its Subsidiaries pursuant to this Agreement or otherwise, (2) none of the Company, its Subsidiaries or their respective officers, directors or employees shall be required to execute or enter into or perform under any agreement with respect to the Debt Financing obligation that is not contingent reimbursed by Parent at the US/NL Closing or the JV Holdco Closing, (B) pass resolutions or consents or approve or authorize the execution of, or execute or deliver, such Financing or the definitive documents in respect thereof or related agreements, (C) cause any director, officer or employee or stockholder of Omega, the Direct Sellers or any Target Companies to incur any personal liability, (D) provide access to, or disclose information that, upon the Closing occurring advice of counsel, is subject to attorney-client privilege or work-product or similar privilege, (E) provide or deliver any internal or external legal opinions, (F) consent to a pre-filing of UCC-1s or any other grant of Liens or that would be effective prior to result in any of Omega, the Effective Time (other than authorization letters contemplated by Section 6.05(a)(viii))Direct Sellers, (3) none the Target Companies or any of the Company, its Subsidiaries or their respective officers, directors Affiliates or employees shall be required Representatives being responsible to deliver any certificate that such Person reasonably believes, in good faith, contains third parties for any untrue certifications representations or opinions, and warranties or (4G) none of the Company, its Subsidiaries or their respective officers, directors or employees shall be required to provide any information the disclosure of which is prohibited or restricted under Applicable Law or the Company’s organizational documents or which is legally privileged or which is otherwise subject to the confidentiality provisions.Excluded Information;
(b) The Company shall provide the Required Financial Information, together with the other information required under Section 6.05(a), to Parent in a manner that does not contain any untrue statement of a material fact or omit to state a material fact necessary to make such information, in light of the circumstances under which the statements contained in such information were made, not misleading. The Company shall notify Parent in writing if the Company determines that (i) any untrue statement of a material fact or omission of any material fact necessary to make such information, in light of the circumstances under which the statements contained in such information were made, not misleading exists with regard to any such information, (ii) any Required Financial Information must be restated or (iiiv) the Company’s independent registered public accounting firm has withdrawn any audit opinion with respect to any financial statements contained in the Required Financial Information.
(c) Parent shall, promptly upon written request by the Company, Buyer Parties shall reimburse the Company Omega or its applicable Subsidiary for all reasonable reasonable, documented and documented out-of-pocket costs and expenses (including reasonable and documented attorneys’ fees) incurred by Omega or its applicable Subsidiary in connection with any such cooperation undertaken at the Company or any request of its Subsidiaries in satisfying its obligations under this Section 6.05. Parent, HoldCo and Merger Sub shall, on a joint and several basis, the Buyer Parties;
(vi) the Buyer Parties shall indemnify and hold harmless the Company Omega and its applicable Subsidiaries and their respective Representatives (each an “Indemnified Party”) from and against any and all losses, claims, damages, liabilities, costs, reasonable attorneys’ fees, judgments, fines, penalties and amounts (including amounts paid in settlement and all interest, assessments and other charges paid or payable in connection with or in respect of any thereof), joint or several, to which such Indemnified Party may become subject, under the Securities Act, the Exchange Act, other Federal or state statutory or other laws or regulations or otherwise, insofar as such losses, claims, damages, liabilities costs, reasonable attorney’s fees, judgements fines, penalties, and amounts paid in settlement (or actions in respect thereof) arise out of or are based upon or Losses suffered or incurred by them in connection with any action taken (or failure to act) by the Financing Sources, Parent, its Subsidiaries, or any of their respective Affiliates or the CompanyFinancing, any of its Subsidiaries or any of their respective Representatives actions taken by them pursuant to this Section 6.05 (other than the use of 4.23 and any information provided by the Company, any of its Subsidiaries or any of their respective Representatives in writing for use used in connection therewith or used with the Debt Financing)cooperation of Omega, except to in the extent event such losses, claims, damages, liabilities, costs, reasonable attorneys’ fees, judgments, fines, penalties and amounts paid in settlement are determined by a final non-appealable judgment Losses arises out of a court of competent jurisdiction to have arisen out of, or resulted from, (A) the gross negligence or willful misconduct of, by Omega or a its Representatives or (B) the Willful Breach by, the Company, of this Agreement by Omega;
(vii) such requested cooperation shall not require Omega or any of its Subsidiaries to assume liability for any lender presentation, confidential information memorandum, offering memorandum, private placement memorandum or similar offering document;
(viii) such requested cooperation shall not require the directors, officers, employees or agents of Omega or any of their respective Representativesits Subsidiaries to take any action in any capacity other than as a director, officer or employee; and
(ix) such requested cooperation shall not require Omega or any of its Subsidiaries to take any action that would reasonably be expected to conflict with, or result in any violation or breach of, or default (with or without notice or lapse of time, or both) under this Agreement or the organizational documents of such Person or any other applicable Law.
Appears in 1 contract
Financing Assistance. (a) The Provided that the Specified Lender Consents have not been obtained (or have been withdrawn once obtained), the Company shall, and shall cause each of its Subsidiaries to, and each shall use its commercially reasonable efforts to cause each of their respective its Representatives (including legal, tax, regulatory and accounting advisors) to, provide such cooperation to the Purchaser and its affiliates as they may be reasonably requested by Parent request in connection with the Debt Financing arrangements by the Purchaser to obtain, syndicate, market or arrange the closing and funding of any potential debt financing for an amount not to exceed the aggregate amount outstanding (in the case of any term facilities) or available (under any revolving facilities) under any arrangement(s) to which a Specified Lender Consent has become incapable of being obtained (provided that such cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiariesrequest is made on reasonable notice), which cooperation shallincluding, to the extent as so requested, include:
(i) as promptly as reasonably practicable and in any event no later than the tenth Business Day preceding the Closing Date (such date, the “Delivery Deadline”) provide Parent and the Financing Sources with (A) all historical consolidated balance sheets and related audited and unaudited statements of income, comprehensive income, shareholders’ equity and cash flows of the Company and other historical financial information regarding the Company and its Subsidiaries, in either case required to be provided to the Financing Sources by the terms of any commitment letter or agreement entered into with any Financing Source, (B) audited consolidated balance sheets and related audited statements of income, comprehensive income, shareholders’ equity and cash flows of the Company for each of the three fiscal years most recently ended more than 90 days prior to the Closing Date, and unaudited consolidated balance sheets and related unaudited statements of income, comprehensive income, shareholders’ equity and cash flows of the Company for each subsequent fiscal quarter ended more than 45 days prior to the Closing Date, all such audited and unaudited statements complying with the requirements of Form F-4 for persons being acquired and Regulation S-X under the Securities Act for a non-issuer entity whose financial statements are filed in a registered offering of securities solely to satisfy Rule 3-05 of Regulation S-X, without giving effect to Rule 3-05(b)(4) of Regulation S-X (clauses (A) and (B), collectively, the “Required Financial Information”) and (C) such other historical financial and other information regarding the Company and its Subsidiaries as Parent may reasonably request;
(ii) as promptly as reasonably practicable, and in any event no later than the Delivery Deadline, provide Parent and the Financing Sources with such information (financial or otherwise) relating to the Company and its Subsidiaries (including information to be used in the preparation of an information package regarding the business, operations and financial condition of Parent and the Company) reasonably necessary for Parent’s preparation of customary offering or information documents to be used for the completion of the Debt Financing;
(iii) cooperate and assist with the reasonable due diligence, rating agency processes and syndication and marketing efforts of Parent, its Representatives and the Financing Sources, including participating in a reasonable number of meetings (including one-on-one meetings with representatives of the Financing Sources, prospective lenders and prospective investors, on the one hand, and senior management and Representatives of the Company, in each case with appropriate seniority and expertise, on the other hand), due diligence sessions (including accounting due diligence sessions), drafting sessions and road shows, at reasonable times and on reasonable notice; provided that the Company and its Representatives will only be required to travel or attend any in person meetings for a period not to exceed five Business Days and each such Representative shall be reasonably compensated for his or her reasonable costs and expenses;
(ivii) assist Parent in preparing customary offering memoranda, rating agency presentations, lender and investor presentations, confidential information memoranda, private placement memoranda, prospectuses, filings cooperating with the SEC Purchaser and other similar documents prepared its affiliates in connection with the Debt Financingapplications to obtain such consents, including delivery and consenting to the inclusion approvals or incorporation of the Required Financial Information and all other historical financial and other information regarding the Company and its Subsidiaries authorizations from any Governmental Entity which may be reasonably requested by Parent for use in any offering or information documents to be prepared necessary in connection with the Debt Financing;
(v) make availablesuch potential debt financing and, on a customary including, promptly upon request and reasonable basis and upon reasonable notice, appropriate personnel, including Representatives of the Company and its Subsidiaries, documents and information relating to the Company and its Subsidiaries, in each case, as may be reasonably requested by Parent, the Financing Sources, or as may be requested by the SEC in connection with the completion of the Debt Financing;
(vi) provide to Parent and the Financing Sources promptly, and in any event furnishing at least five Business Days three business days prior to the Closing Date, Effective Date all documentation and other information about the Company and its Affiliates requested required in writing by Parent and required by the Financing Sources or regulatory authorities connection with respect to the Debt Financing under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act;
proceeds of crime Laws (vii) (A) provided that such request customary comfort letters from the Company’s independent registered public accounting firm (including customary “negative assurances”), (B) request the Company’s independent registered public accounting firm to consent is reasonably requested at least 15 business days prior to the inclusion or incorporation of their audit reports with respect to the Required Financial Information in any filing or registration statement of Parent with the SEC or any prospectus, offering memoranda, private placement memoranda, marketing material or similar documentation, including by providing customary representation letters, and (C) request the Company’s independent registered public accounting firm to reasonably cooperate with Parent and its Representatives, including by participating in accounting due diligence sessions at times and at locations reasonably acceptable to the Company and its independent registered public accounting firm;
(viii) subject to customary confidentiality provisions, provide customary authorization letters (in a form and on terms reasonably acceptable to the Company) to the Financing Sources authorizing the distribution of information to prospective lenders or investors, including, if requested, containing a representation to the Financing Sources that the public side versions of such documents, if any, do not include material non-public information about the Company or its Affiliates;
(ix) deliver notices of prepayment and/or notices for termination of commitments within the time periods required by the Credit Agreement and obtain payoff letters, lien terminations and releases and instruments of discharge, all in customary form, to be delivered at Closing providing for the payoff in full on the Closing Date of any amounts due under the Credit Agreement and for the termination of all obligations thereunder (other than other such obligations under the Credit Agreement that expressly by their terms survive such payoff, discharge and termination) and releasing, discharging and terminating any liens and other security interests created under any security documents in connection with the Credit Agreement and all related obligations thereunder and under each security documents (other than obligations under such security documents that expressly by their terms survive such payoff, discharge and terminationEffective Date);
(xiii) assisting in the preparation of, and executing and delivering, one or more credit agreements, unsecured notesdelivering any guarantees and other loan documents, indentures and or other definitive financing documents or other customary certificates (but not solvency certificates) and customary documents closing deliverables as may be reasonably requested by Parent the Purchaser or its affiliates, provided that any obligations contained in such documents shall be effective no earlier than as of the Effective Time;
(iv) obtaining payout letters and guarantee releases, in each case, which are necessary required as conditions precedent to the debt financing or the definitive agreement related thereto, with evidence of such payoff and release, as applicable, in a form satisfactory to the Purchaser, acting reasonably;
(v) furnishing to the Purchaser as promptly as reasonably practicable all available financial and other reasonably required or customary information regarding the Company, any of its Subsidiaries or any combination of such Persons;
(vi) assisting the Purchaser in the preparation of reasonably required authorization letters with respect to information memoranda and packages and lender and investor presentations in connection with such potential debt financing and participate in a customary and reasonable number of presentations, road shows and similar sessions in connection with such potential debt financing; and
(vii) using reasonable efforts to cause the Debt Financing Company’s independent auditors to cooperate with such potential debt financing, including by providing required accountant’s comfort letters in customary form (which agreementsincluding “negative assurance”) and any required consents from the Company’s independent auditors, notes, indentures in any case so long as:
(viii) it is acknowledged and other documents agreed by the Purchaser that in no event shall the receipt or availability of any debt financing be a condition to which completing the Arrangement or any of the obligations of Purchaser hereunder;
(ix) such requested cooperation or financing does not unreasonably interfere with or disrupt the ongoing operations of the Company is a party will be conditioned on and its Subsidiaries;
(x) such requested cooperation or potential debt financing does not impair, delay or prevent the consummation satisfaction of the Transactions)any conditions set forth in Article 6;
(xi) consent such requested cooperation or potential debt financing does not impair, delay or prevent the consummation of the transactions contemplated by this Agreement;
(xii) such requested cooperation or potential debt financing does not require the Company to obtain the approval of the Company Shareholders or any other securityholders of the Company;
(xiii) the Company shall not be required to provide, or cause any of its Subsidiaries to provide, cooperation that involves any binding commitment by the Company or any of its Subsidiaries, which commitment is not conditional on the completion of the Arrangement and does not terminate without liability to the use Company or its Subsidiaries upon the termination of this Agreement;
(xiv) the trademarks, service marks and logos of Purchaser reimburses the Company for all reasonable documented out- of-pocket costs incurred by the Company or any of its Subsidiaries in connection with any such cooperation undertaken at the Debt Financing; provided that such trademarks, service marks and logos are used solely in a manner that is not intended to or is not reasonably likely to harm or disparage the Company or any of its Subsidiaries; and
(xii) taking all other corporate actions, subject to the occurrence request of the Closing, as may be reasonably necessary to permit the consummation of the Debt Financing. Notwithstanding the foregoing, (1) neither the Company nor any of its Subsidiaries shall be required to pay any fees, expenses or costs or incur any liability or obligations in connection with the Debt Financing, unless Parent reimburses or is required to indemnify the Company Purchaser and its Subsidiaries pursuant to this Agreement or otherwise, (2) none of indemnifies the Company, its Subsidiaries or affiliates and their respective officers, directors directors, employees, agents, advisors and representatives for all direct and indirect liabilities, losses, Taxes, damages, claims, costs, expenses, interest awards, judgments and penalties that are suffered or incurred as a consequence of any such cooperation undertaken at the request of the Purchaser;
(xv) such requested cooperation or potential debt financing does not require the Company to assume liability for any offering memorandum, private placement memorandum or similar offering document;
(xvi) such requested cooperation or potential debt financing does not require the directors, officers, employees shall be required or agents of the Company or its Subsidiaries to execute or enter into or perform under take any agreement with respect to the Debt Financing that is not contingent upon the Closing occurring or that would be effective prior to the Effective Time (action in any capacity other than authorization letters contemplated by Section 6.05(a)(viii))as a director, (3) none of the Company, its Subsidiaries officer or their respective officers, directors or employees shall be required to deliver any certificate that such Person reasonably believes, in good faith, contains any untrue certifications or opinions, and (4) none of the Company, its Subsidiaries or their respective officers, directors or employees shall be required to provide any information the disclosure of which is prohibited or restricted under Applicable Law or the Company’s organizational documents or which is legally privileged or which is otherwise subject to the confidentiality provisions.employee;
(bxvii) The Company shall provide the Required Financial Information, together with the other information required under Section 6.05(a), to Parent in a manner that such requested cooperation or potential debt financing does not contain any untrue statement of a material fact or omit to state a material fact necessary to make such information, in light of the circumstances under which the statements contained in such information were made, not misleading. The Company shall notify Parent in writing if the Company determines that (i) any untrue statement of a material fact or omission of any material fact necessary to make such information, in light of the circumstances under which the statements contained in such information were made, not misleading exists with regard to any such information, (ii) any Required Financial Information must be restated or (iii) the Company’s independent registered public accounting firm has withdrawn any audit opinion with respect to any financial statements contained in the Required Financial Information.
(c) Parent shall, promptly upon written request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses (including reasonable and documented attorneys’ fees) incurred by require the Company or any of its Subsidiaries to disclose any information that in satisfying its their reasonable judgment would violate any of their obligations under this Section 6.05. Parent, HoldCo and Merger Sub shall, on a joint and several basis, indemnify and hold harmless or any other Persons obligations with respect to confidentiality; and
(xviii) such requested cooperation does not require the Company and its Subsidiaries and their respective Representatives (each an “Indemnified Party”) from and against any and all losses, claims, damages, liabilities, costs, reasonable attorneys’ fees, judgments, fines, penalties and amounts (including amounts paid in settlement and all interest, assessments and other charges paid or payable in connection with or in respect of any thereof), joint or several, to which such Indemnified Party may become subject, under the Securities Act, the Exchange Act, other Federal or state statutory or other laws or regulations or otherwise, insofar as such losses, claims, damages, liabilities costs, reasonable attorney’s fees, judgements fines, penalties, and amounts paid in settlement (or actions in respect thereof) arise out of or are based upon or suffered or incurred in connection with any action taken (or failure to act) by the Financing Sources, Parent, its Subsidiaries, or any of their respective Affiliates its Subsidiaries to take any action that would reasonably be expected to conflict with, or result in any violation or breach of, or default (with or without notice or lapse of time, or both) under, the Company, certificate of incorporation or by-laws or other comparable organizational documents of Company or any of its Subsidiaries or any of their respective Representatives pursuant to this Section 6.05 (other than the use of any information provided by the Company, any of its Subsidiaries or any of their respective Representatives in writing for use in connection with the Debt Financing), except to the extent such losses, claims, damages, liabilities, costs, reasonable attorneys’ fees, judgments, fines, penalties and amounts paid in settlement are determined by a final non-appealable judgment of a court of competent jurisdiction to have arisen out of, or resulted from, the gross negligence or willful misconduct of, or a Willful Breach by, the Company, any of its Subsidiaries or any of their respective Representativesapplicable Laws.
Appears in 1 contract
Samples: Arrangement Agreement
Financing Assistance. (a) The Company shalland its Subsidiaries shall obtain the debt financing from financing sources consistent with those previously discussed with AXXX and in amounts sufficient to consummate the transactions contemplated by this Agreement, the Preferred Term Sheet, the Plan Terms, the GM Settlement and the Plan, such financing to be on then-prevailing market terms with respect to the applicable interest rate, redemption provisions and fees, and otherwise to be on terms that are acceptable to AXXX not to be unreasonably withheld (the “Debt Financing”); provided, that if the Company delivers to AXXX definitive term sheets for such proposed debt financing that have been approved by the Company’s board of directors and executed by the banks or other financing sources providing such debt financing reflecting then-prevailing market terms with respect to the applicable interest rate, redemption provisions and fees (a “Company Financing Proposal”), then AXXX shall cause inform the Company in writing (a “Financing Notice”) whether or not the Company Financing Proposal is acceptable to it within five (5) Business Days of its Subsidiaries toreceipt of the definitive term sheets for such Company Financing Proposal. If, after the Company delivers to AXXX a Company Financing Proposal, AXXX fails to deliver a Financing Notice within five (5) Business Days or each of the following circumstances occurs, then the Company may terminate this Agreement and the transactions contemplated hereby may be abandoned: (x) AXXX delivers a Financing Notice in which it does not approve the Company Financing Proposal, (y) AXXX does not present to the Company, within 30 days of the delivery of the Financing Notice (the “Financing Decision Date”), an alternative written expression of interest to provide the Debt Financing with financing sources reasonably acceptable to the Company on terms more favorable to the Company than the Company Financing Proposal (a “Preferred Debt Financing”) and (z) AXXX does not provide to the Company commitment letters executed by the banks or other financing sources providing such Preferred Debt Financing within 60 days of the Financing Decision Date. Delphi shall use its commercially reasonable best efforts to cause each implement any Preferred Debt Financing and to fulfill its other obligations pursuant to this Section 5(t). Subject to applicable regulatory or NASD requirements, Merrill and UBS (or their Affiliates) shall be entitled to participate in such Debt Financing on market terms. The Company and its Subsidiaries shall execute and deliver any commitment letters, underwriting or placement agreements, registration statements, pledge and security documents, other definitive financing documents, or other requested certificates or documents necessary or desirable to obtain the Debt Financing. The Company will (i) provide to AXXX and its counsel a copy of their respective Representatives all marketing information, term sheets, commitment letters and agreements related to the Debt Financing and a reasonable opportunity to review and comment on such documents prior to such document being distributed, executed or delivered or filed with the Bankruptcy Court, (including legalii) duly consider in good faith any comments of AXXX and its counsel consistent with the Agreement, taxthe Preferred Term Sheet and the Plan Terms and any other reasonable comments of AXXX and its counsel and shall not reject such comments without first discussing the reasons therefor with AXXX or its counsel and giving due consideration to the views of AXXX and its counsel, regulatory and accounting advisors(iii) to, provide such cooperation as may be keep AXXX reasonably requested by Parent informed on a timely basis of developments in connection with the Debt Financing (provided that such cooperation does not unreasonably interfere and provide the Investors with the ongoing operations of the Company an opportunity to attend and its Subsidiaries), which cooperation shall, to the extent requested, include:
(i) as promptly as reasonably practicable and participate in any event no later than the tenth Business Day preceding the Closing Date (such date, the “Delivery Deadline”) provide Parent and the Financing Sources meetings and/or roadshows with (A) all historical consolidated balance sheets and related audited and unaudited statements of income, comprehensive income, shareholders’ equity and cash flows of the Company and other historical financial information regarding the Company and its Subsidiaries, in either case required to be provided to the Financing Sources by the terms of any commitment letter or agreement entered into with any Financing Source, (B) audited consolidated balance sheets and related audited statements of income, comprehensive income, shareholders’ equity and cash flows of the Company for each of the three fiscal years most recently ended more than 90 days prior to the Closing Date, and unaudited consolidated balance sheets and related unaudited statements of income, comprehensive income, shareholders’ equity and cash flows of the Company for each subsequent fiscal quarter ended more than 45 days prior to the Closing Date, all such audited and unaudited statements complying with the requirements of Form F-4 for persons being acquired and Regulation S-X under the Securities Act for a non-issuer entity whose financial statements are filed in a registered offering of securities solely to satisfy Rule 3-05 of Regulation S-X, without giving effect to Rule 3-05(b)(4) of Regulation S-X (clauses (A) and (B), collectively, the “Required Financial Information”) and (C) such other historical financial and other information regarding the Company and its Subsidiaries as Parent may reasonably request;
(ii) as promptly as reasonably practicable, and in any event no later than the Delivery Deadline, provide Parent and the Financing Sources with such information (financial or otherwise) relating to the Company and its Subsidiaries (including information to be used in the preparation of an information package regarding the business, operations and financial condition of Parent and the Company) reasonably necessary for Parent’s preparation of customary offering or information documents to be used for the completion potential providers of the Debt Financing;
(iii) cooperate and assist with the reasonable due diligence, rating agency processes and syndication and marketing efforts of Parent, its Representatives and the Financing Sources, including participating in a reasonable number of meetings (including one-on-one meetings with representatives of the Financing Sources, prospective lenders and prospective investors, on the one hand, and senior management and Representatives of the Company, in each case with appropriate seniority and expertise, on the other hand), due diligence sessions (including accounting due diligence sessions), drafting sessions and road shows, at reasonable times and on reasonable notice; provided that the Company and its Representatives will only be required to travel or attend any in person meetings for a period not to exceed five Business Days and each such Representative shall be reasonably compensated for his or her reasonable costs and expenses;
(iv) assist Parent in preparing customary offering memoranda, rating agency presentations, lender and investor presentations, confidential information memoranda, private placement memoranda, prospectuses, filings with the SEC and other similar documents prepared in connection with the Debt Financing, including delivery and consenting to the inclusion or incorporation of the Required Financial Information and all other historical financial and other information regarding the Company and its Subsidiaries reasonably requested by Parent for use in any offering or information documents to be prepared in connection with the Debt Financing;
(v) make available, on a customary and reasonable basis and upon reasonable notice, appropriate personnel, including Representatives of the Company and its Subsidiaries, documents and information relating to the Company and its Subsidiaries, in each case, as may be reasonably requested by Parent, the Financing Sources, or as may be requested by the SEC in connection with the completion of the Debt Financing;
(vi) provide to Parent and the Financing Sources promptly, and in any event at least five Business Days prior to the Closing Date, all documentation and other information about the Company and its Affiliates requested in writing by Parent and required by the Financing Sources or regulatory authorities with respect to the Debt Financing under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act;
(vii) (A) request customary comfort letters from the Company’s independent registered public accounting firm (including customary “negative assurances”), (B) request the Company’s independent registered public accounting firm to consent to the inclusion or incorporation of their audit reports with respect to the Required Financial Information in any filing or registration statement of Parent with the SEC or any prospectus, offering memoranda, private placement memoranda, marketing material or similar documentation, including by providing customary representation letters, and (C) request the Company’s independent registered public accounting firm to reasonably cooperate with Parent and its Representatives, including by participating in accounting due diligence sessions at times and at locations reasonably acceptable to the Company and its independent registered public accounting firm;
(viii) subject to customary confidentiality provisions, provide customary authorization letters (in a form and on terms reasonably acceptable to the Company) to the Financing Sources authorizing the distribution of information to prospective lenders or investors, including, if requested, containing a representation to the Financing Sources that the public side versions of such documents, if any, do not include material non-public information about the Company or its Affiliates;
(ix) deliver notices of prepayment and/or notices for termination of commitments within the time periods required by the Credit Agreement and obtain payoff letters, lien terminations and releases and instruments of discharge, all in customary form, to be delivered at Closing providing for the payoff in full on the Closing Date of any amounts due under the Credit Agreement and for the termination of all obligations thereunder (other than other such obligations under the Credit Agreement that expressly by their terms survive such payoff, discharge and termination) and releasing, discharging and terminating any liens and other security interests created under any security documents in connection with the Credit Agreement and all related obligations thereunder and under each security documents (other than obligations under such security documents that expressly by their terms survive such payoff, discharge and termination);
(x) assisting in the preparation of, and executing and delivering, one or more credit agreements, unsecured notes, indentures and other definitive financing documents or other customary certificates (but not solvency certificates) and customary documents as may be reasonably requested by Parent which are necessary and customary in connection with the Debt Financing (which agreements, notes, indentures and other documents to which the Company is a party will be conditioned on the consummation of the Transactions);
(xi) consent to the use of the trademarks, service marks and logos of the Company or any of its Subsidiaries in connection with the Debt Financing; provided that such trademarks, service marks and logos are used solely in a manner that is not intended to or is not reasonably likely to harm or disparage the Company or any of its Subsidiaries; and
(xii) taking all other corporate actions, subject to the occurrence of the Closing, as may be reasonably necessary to permit the consummation of the Debt Financing. Notwithstanding the foregoing, (1) neither the Company nor any of its Subsidiaries shall be required to pay any fees, expenses or costs or incur any liability or obligations in connection with the Debt Financing, unless Parent reimburses or is required to indemnify the Company and its Subsidiaries pursuant to this Agreement or otherwise, (2) none of the Company, its Subsidiaries or their respective officers, directors or employees shall be required to execute or enter into or perform under any agreement with respect to the Debt Financing that is not contingent upon the Closing occurring or that would be effective prior to the Effective Time (other than authorization letters contemplated by Section 6.05(a)(viii)), (3) none of the Company, its Subsidiaries or their respective officers, directors or employees shall be required to deliver any certificate that such Person reasonably believes, in good faith, contains any untrue certifications or opinions, and (4) none of the Company, its Subsidiaries or their respective officers, directors or employees shall be required to provide any information the disclosure of which is prohibited or restricted under Applicable Law or the Company’s organizational documents or which is legally privileged or which is otherwise subject to the confidentiality provisions.
(b) The Company shall provide the Required Financial Information, together with the other information required under Section 6.05(a), to Parent in a manner that does not contain any untrue statement of a material fact or omit to state a material fact necessary to make such information, in light of the circumstances under which the statements contained in such information were made, not misleading. The Company shall notify Parent in writing if the Company determines that (i) any untrue statement of a material fact or omission of any material fact necessary to make such information, in light of the circumstances under which the statements contained in such information were made, not misleading exists with regard to any such information, (ii) any Required Financial Information must be restated or (iii) the Company’s independent registered public accounting firm has withdrawn any audit opinion with respect to any financial statements contained in the Required Financial Information.
(c) Parent shall, promptly upon written request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses (including reasonable and documented attorneys’ fees) incurred by the Company or any of its Subsidiaries in satisfying its obligations under this Section 6.05. Parent, HoldCo and Merger Sub shall, on a joint and several basis, indemnify and hold harmless the Company and its Subsidiaries and their respective Representatives (each an “Indemnified Party”) from and against any and all losses, claims, damages, liabilities, costs, reasonable attorneys’ fees, judgments, fines, penalties and amounts (including amounts paid in settlement and all interest, assessments and other charges paid or payable in connection with or in respect of any thereof), joint or several, to which such Indemnified Party may become subject, under the Securities Act, the Exchange Act, other Federal or state statutory or other laws or regulations or otherwise, insofar as such losses, claims, damages, liabilities costs, reasonable attorney’s fees, judgements fines, penalties, and amounts paid in settlement (or actions in respect thereof) arise out of or are based upon or suffered or incurred in connection with any action taken (or failure to act) by the Financing Sources, Parent, its Subsidiaries, or any of their respective Affiliates or the Company, any of its Subsidiaries or any of their respective Representatives pursuant to this Section 6.05 (other than the use of any information provided by the Company, any of its Subsidiaries or any of their respective Representatives in writing for use in connection with the Debt Financing), except to the extent such losses, claims, damages, liabilities, costs, reasonable attorneys’ fees, judgments, fines, penalties and amounts paid in settlement are determined by a final non-appealable judgment of a court of competent jurisdiction to have arisen out of, or resulted from, the gross negligence or willful misconduct of, or a Willful Breach by, the Company, any of its Subsidiaries or any of their respective Representatives.
Appears in 1 contract
Samples: Equity Purchase and Commitment Agreement (Delphi Corp)
Financing Assistance. (a) The Prior to and until the Closing, the Company shall, and shall cause use its Subsidiaries to, reasonable best efforts to and shall use its commercially reasonable best efforts to cause its Subsidiaries to use their reasonable best efforts to, and the Company and each of its Subsidiaries shall each use their reasonable best efforts to cause the respective Representatives (including legalofficers, taxemployees, regulatory agents and accounting advisors) to, provide such cooperation as may be reasonably requested by Parent in connection with the Debt Financing (provided that such cooperation does not unreasonably interfere with the ongoing operations representatives of the Company and its Subsidiaries)Subsidiaries to use their reasonable best efforts to, which cooperation shall, to the extent requested, include:
(i) as promptly as reasonably practicable and in any event no later than the tenth Business Day preceding the Closing Date (such date, the “Delivery Deadline”1) provide to Parent and the Financing Sources with Merger Sub 2, as applicable, (Ax) all historical audited consolidated balance sheets and related audited and unaudited financial statements of income, comprehensive income, shareholders’ equity and cash flows of the Company and other historical financial information regarding the Company and its Subsidiaries, in either case required to be provided to the Financing Sources by the terms of any commitment letter or agreement entered into with any Financing Source, (B) audited consolidated balance sheets and related audited statements of income, comprehensive income, shareholders’ equity and cash flows of the Company for each of covering the three fiscal years most recently ended more than 90 days prior to immediately preceding the Closing Datefor which audited consolidated financial statements are then currently available, and unaudited consolidated balance sheets and related unaudited financial statements of income, comprehensive income, shareholders’ equity and cash flows (excluding footnotes) for any regular quarterly interim fiscal period or periods of the Company for each subsequent fiscal quarter ended more than after the date of the most recent audited financial statements and at least 45 days prior to the Closing Date, all Date (within 45 days after the end of each such audited and unaudited statements complying with the requirements of Form F-4 for persons being acquired and Regulation S-X under the Securities Act for a non-issuer entity whose financial statements are filed in a registered offering of securities solely to satisfy Rule 3-05 of Regulation S-X, without giving effect to Rule 3-05(b)(4) of Regulation S-X (clauses (Aperiod) and (B), collectively, the “Required Financial Information”y) and (C) such other historical financial and other information regarding the Company and its Subsidiaries as Parent may reasonably request;
(ii) as promptly as reasonably practicable, and in any event no later than the Delivery Deadline, provide Parent and the Financing Sources with such information (financial or otherwise) relating to the Company and its Subsidiaries (including information to be used in the preparation of an information package regarding the business, operations and financial condition of Parent and the Company) reasonably necessary for Parent’s preparation of customary offering or information documents to be used for the completion of the Debt Financing;
(iii) cooperate and assist with the reasonable due diligence, rating agency processes and syndication and marketing efforts of Parent, its Representatives and the Financing Sources, including participating in a reasonable number of meetings (including one-on-one meetings with representatives of the Financing Sources, prospective lenders and prospective investors, on the one hand, and senior management and Representatives of the Company, in each case with appropriate seniority and expertise, on the other hand), due diligence sessions (including accounting due diligence sessions), drafting sessions and road shows, at reasonable times and on reasonable notice; provided that the Company and its Representatives will only be required to travel or attend any in person meetings for a period not to exceed five Business Days and each such Representative shall be reasonably compensated for his or her reasonable costs and expenses;
(iv) assist Parent in preparing customary offering memoranda, rating agency presentations, lender and investor presentations, confidential information memoranda, private placement memoranda, prospectuses, filings with the SEC and other similar documents prepared in connection with the Debt Financing, including delivery and consenting to the inclusion or incorporation of the Required Financial Information and all other historical financial and other information regarding the Company and its Subsidiaries reasonably requested by Parent for use in any offering or information documents to be prepared in connection with the Debt Financing;
(v) make available, on a customary and reasonable basis and upon reasonable notice, appropriate personnel, including Representatives of the Company and its Subsidiaries, documents and information relating to the Company and its Subsidiaries, in each case, as may be reasonably requested by Parent, the Financing Sources, or as may be requested by the SEC in connection with the completion of the Debt Financing;
(vi) provide to Parent and the Financing Sources promptly, and in any event at least five Business Days prior to the Closing Date, all documentation and other information about the Company and its Affiliates requested in writing by Parent and required by the Financing Sources or regulatory authorities with respect to the Debt Financing Governmental Entities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act;
(vii) (A) request customary comfort letters from the Company’s independent registered public accounting firm (including customary “negative assurances”), (B) request the Company’s independent registered public accounting firm to consent to the inclusion or incorporation U.S.A. Patriot Act of their audit reports with respect to the Required Financial Information in any filing or registration statement of Parent with the SEC or any prospectus, offering memoranda, private placement memoranda, marketing material or similar documentation, including by providing customary representation letters2001, and (C) request the Company’s independent registered public accounting firm to reasonably cooperate with Parent and its Representativesbeneficial ownership regulations, including by participating but in accounting due diligence sessions at times and at locations reasonably acceptable each case, solely as relating to the Company and its independent registered public accounting firm;
(viii) subject to customary confidentiality provisions, provide customary authorization letters (in a form and on terms reasonably acceptable Subsidiaries to the Company) to extent requested by the Parent and the Financing Sources authorizing the distribution of information to prospective lenders or investors, including, if requested, containing a representation at least ten Business Days prior to the Financing Sources that the public side versions of such documentsClosing Date, if any, do not include material non-public which information about the Company or its Affiliates;
(ix) deliver notices of prepayment and/or notices for termination of commitments within the time periods required by the Credit Agreement and obtain payoff letters, lien terminations and releases and instruments of discharge, all in customary form, shall be provided no later than three Business Days prior to be delivered at Closing providing for the payoff in full on the Closing Date of any amounts due under the Credit Agreement and for the termination of (2) provide to Parent, Merger Sub 1 and Merger Sub 2 all obligations thereunder (other than other such obligations under the Credit Agreement cooperation reasonably requested by Parent that expressly by their terms survive such payoff, discharge and termination) and releasing, discharging and terminating any liens and other security interests created under any security documents is necessary or reasonably required in connection with the Credit Agreement Financing, including the following: (i) using reasonable best efforts to cause the Company’s and all related obligations thereunder its Subsidiaries’ senior officers and under each security other representatives to participate in meetings and calls, presentations, road shows, due diligence sessions (including accounting due diligence sessions), drafting sessions and sessions with rating agencies, investors and prospective lenders on reasonable advance notice to the extent practicable; (ii) using reasonable best efforts to assist with the preparation of appropriate and customary materials for rating agency presentations, offering and syndication documents (other than obligations under including any customary offering or private placement memoranda to be prepared for any debt securities offering in connection with the Financing Commitment), bank information memoranda, business projections, customary pro forma financial statements reflecting the Combination and the Financing; provided, that such security documents that expressly by their terms survive assistance will be limited to providing financial information reasonably required to allow Parent to prepare such payoff, discharge and termination);
(x) assisting in the preparation ofpro forma financial statements, and any other marketing documentation and similar documents reasonably required in connection with the Financing (and executing and deliveringcustomary representation letters in connection herewith); provided, that any such marketing materials shall reflect that one or more credit agreementsof Parent and its Subsidiaries will be the obligors at Closing and that the Company and its Subsidiaries shall have no obligations thereunder unless and until the Effective Time occurs; (iii) using reasonable best efforts to assist with the preparation of any pledge, unsecured notessecurity and other collateral documents, indentures and any loan agreement, currency or interest hedging agreement, other definitive financing documents on terms reasonably satisfactory to Parent, or other customary certificates (but not solvency certificates) and customary , resolutions, consents or documents as may be reasonably requested by Parent which are necessary and usual and customary in connection with the Debt Financing (which agreements, notes, indentures and other documents to which the Company is a party will be conditioned on the consummation for transactions of the Transactions);
(xi) consent to type contemplated by the use of the trademarks, service marks and logos Financing Commitment; provided that no obligation of the Company or any of its Subsidiaries under any such document or agreement shall be effective or filed in the public record until the Effective Time; (iv) using reasonable best efforts to facilitate the pledging of collateral, provided that no pledge shall be effective or public filing be made until the Effective Time; (v) using reasonable best efforts to facilitate the pay-off of any Existing Indebtedness of the Company and its Subsidiaries and to arrange for the receipt of customary pay-off documentation evidencing the satisfaction and discharge of such Existing Indebtedness and the release of related Liens and termination of security interests with respect thereto, in each case, in form and substance reasonably acceptable to the Financing Sources; (vi) using reasonable best efforts to furnish to Parent, Merger Sub 1 and Merger Sub 2 and the Financing Sources, as promptly as reasonably practicable, with (A) all Required Information, including, without limitation, customary pertinent financial, business and other information regarding the Company and its Subsidiaries as may be reasonably requested by Parent and including in any event the financial statements required under Paragraph 9 of Annex III of the Commitment Letter, including any additional financial information and data regarding the Company and its Subsidiaries reasonably requested by Parent or the Financing Sources in connection with the Debt Financing; Financing, (B) other financial data necessary or reasonably required to permit Parent to prepare customary pro forma financial statements in form and substance reasonably acceptable to the Financing Sources reflecting the Combination and the Financing, and (C) any supplements to the Required Information on a reasonably current basis to the extent that any Required Information, to the knowledge of the Company, when taken as a whole and in light of the circumstances under which such statements were made, contains any material misstatement of fact or omits to state any material fact necessary to make such information not materially misleading; (vii) [reserved]; (viii) [reserved], (ix) using reasonable best efforts to cause the independent auditors of the Company to assist and cooperate with Parent in connection with the Financing, including by providing consent to offering memoranda, registration statements and/or prospectus that include or incorporate the Company’s consolidated financial information and their reports thereon, and customary comfort letters (including “negative assurance” and change period comfort) with respect to financial information relating to the Company and its Subsidiaries, (x) [reserved], (xi) using reasonable best efforts to cooperate with the Financing Sources’ due diligence requests and review, to the extent reasonably requested in connection with the Financing, (xii) [reserved], (xiii) using reasonable best efforts to request that its independent accountants cooperate with and assist Parent in preparing customary and appropriate information packages and offering and private placement memoranda or other offering materials as the Financing Sources may reasonably request for use in connection with the offering and/or syndication of debt securities, loan participations and other matters contemplated with respect to the Financing, in obtaining third party consents in connection with such financing, and in extinguishing Existing Indebtedness for borrowed money of the Company and its Subsidiaries and releasing liens securing such Existing Indebtedness, in each case to take effect at the Effective Time, (xiv) [reserved], and (xv) using reasonable best efforts to take such actions as are reasonably requested by the Parent or the Financing Sources to facilitate the satisfaction of all conditions precedent to obtaining the Financing to the extent within the control of the Company (including delivery of the stock and other equity certificates of the Company and its Subsidiaries to the Parent); provided that until the Effective Time occurs, neither the Company nor any of its Subsidiaries shall (A) be required to pay any fees, expenses or other amounts in connection with the Financing, (B) have any liability or obligation under any loan agreement or any related document or any other agreement or document related to the Financing or (C) be required to incur any liability in connection with the Financing. For the avoidance of doubt, the Board of Directors of the Company and each of its Subsidiaries, in each case as constituted prior to the Effective Time, shall not be required to adopt any resolutions or take any other action in connection with the authorization of any of the Financing, or otherwise contingent upon the occurrence of the Effective Time.
(b) All material non-public information regarding the Company and its Subsidiaries provided to Parent, Merger Sub 1, Merger Sub 2 and their respective Representatives pursuant to this Section 7.14 shall be kept confidential by them in accordance with the Confidentiality Agreement. The Company hereby consents to (i) the use of all of its and its Subsidiaries’ logos in connection with the Financing; provided that such trademarks, service marks and logos are used solely in a manner that is not intended to or nor is not reasonably likely to harm or disparage the Company or any of its Subsidiaries; and
(xii) taking all other corporate actions, subject to the occurrence reputation or goodwill of the Closing, as may be reasonably necessary to permit the consummation of the Debt Financing. Notwithstanding the foregoing, (1) neither the Company nor or any of its Subsidiaries shall be required to pay or any feesof their assets, expenses or costs or incur any liability or obligations in connection with the Debt Financing, unless Parent reimburses or is required to indemnify the Company including their logos and its Subsidiaries pursuant to this Agreement or otherwise, (2) none of the Company, its Subsidiaries or their respective officers, directors or employees shall be required to execute or enter into or perform under any agreement with respect to the Debt Financing that is not contingent upon the Closing occurring or that would be effective prior to the Effective Time (other than authorization letters contemplated by Section 6.05(a)(viii)), (3) none of the Company, its Subsidiaries or their respective officers, directors or employees shall be required to deliver any certificate that such Person reasonably believes, in good faith, contains any untrue certifications or opinions, marks and (4) none of the Company, its Subsidiaries or their respective officers, directors or employees shall be required to provide any information the disclosure of which is prohibited or restricted under Applicable Law or the Company’s organizational documents or which is legally privileged or which is otherwise subject to the confidentiality provisions.
(b) The Company shall provide the Required Financial Information, together with the other information required under Section 6.05(a), to Parent in a manner that does not contain any untrue statement of a material fact or omit to state a material fact necessary to make such information, in light of the circumstances under which the statements contained in such information were made, not misleading. The Company shall notify Parent in writing if the Company determines that (i) any untrue statement of a material fact or omission of any material fact necessary to make such information, in light of the circumstances under which the statements contained in such information were made, not misleading exists with regard to any such information, (ii) any Required Financial Information must be restated or (iii) Parent sharing confidential information regarding the Company’s independent registered public accounting firm has withdrawn any audit opinion Company with respect to any financial statements contained in Financing Sources as “representatives” of Parent under the Required Financial InformationConfidentiality Agreement.
(c) If requested by Parent, the Company shall use reasonable best efforts to, and shall cause its Subsidiaries to use reasonable best efforts to provide any other cooperation reasonably requested by Parent to facilitate the assumption by the Surviving Corporation and the Surviving Company of any or all Existing Indebtedness of the Company and/or its Subsidiaries, including the Convertible Senior Note Indentures and the Convertible Senior Notes thereunder (including, if elected by Parent, delivering such certificates or other documents and taking such actions (and using reasonable best efforts to cause the applicable lenders, agents, and/or trustees in respect thereof to take such actions) as may be required as may be required in connection therewith by the applicable credit agreements, indentures or other definitive documents governing such Indebtedness) effective as of (or at Parent’s election, following) the Effective Time.
(d) Parent shall, promptly upon written request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs fees and expenses (including reasonable professional fees and documented attorneys’ feesexpenses of accountants, legal counsel and other advisors (limited, in the case of counsel, to one primary counsel to the Company)) to the extent such costs are incurred by the Company or any of its Subsidiaries in satisfying connection with such cooperation provided by the Company, its Subsidiaries, their respective officers, employees and other representatives pursuant to the terms of this Section 7.14(d), or in connection with compliance with its obligations under this Section 6.05. Parent7.14, HoldCo and Merger Sub shall, on a joint and several basis, Parent hereby agrees to indemnify and hold harmless the Company and its Subsidiaries and their respective Representatives (each an “Indemnified Party”) officers, employees, agents and representatives from and against any and all losses, claims, damages, liabilities, costs, reasonable attorneys’ fees, judgments, fines, penalties and amounts (including amounts paid in settlement and all interest, assessments and other charges paid liabilities or payable losses suffered or incurred by them in connection with the arrangement of the Financing, any information utilized in connection therewith (other than arising from information provided by the Company or in respect its Subsidiaries) and any misuse of any thereof)the logos or marks of the Company or its Subsidiaries, joint except to the extent that such liabilities or several, to which such Indemnified Party may become subject, under the Securities Act, the Exchange Act, other Federal or state statutory or other laws or regulations or otherwise, insofar as such losses, claims, damages, liabilities costs, reasonable attorney’s fees, judgements fines, penalties, and amounts paid in settlement (or actions in respect thereof) arise losses arose out of or are based upon or suffered or incurred in connection with any action taken (or failure to act) by result from the Financing Sources, Parent, its Subsidiaries, or any willful misconduct of their respective Affiliates or the Company, any of its Subsidiaries or any of their respective Representatives representatives.
(e) From and after the date hereof and until the earlier to occur of the Closing Date or the termination of this Agreement pursuant to Article IX hereof, the Company shall promptly give written notice with particularity upon the occurrence of any “Default” or “Event of Default” that has occurred or is threatened in writing under any of the indentures governing the Convertible Senior Notes or the Existing Credit Agreement (in each case, with “Default” and “Event of Default” having the meanings provided in such document)..
(f) Parent, Merger Sub 1 and Merger Sub 2 each acknowledge and agree that obtaining the Financing is not a condition to the Closing. If the Financing has not been obtained, Parent, Merger Sub 1 and Merger Sub 2 will each continue to be obligated, subject to the satisfaction or waiver of the conditions set forth in Article VIII, to consummate the Combination.
(g) The Company will be deemed have performed this Section 6.05 7.14 unless and until (other than i) Parent provides written notice (the use “Non-Cooperation Notice”) to the Company of any information provided by alleged failure to comply, or action or failure to act which could be believed to be a breach of this Section 7.14, (ii) Parent includes in such Non-Cooperation Notice reasonable detail regarding the cooperation required to cure such alleged failure (which shall not require the Company to provide any cooperation that it would not otherwise be required to provide under this Section 7.14) and (iii) the Company fails to take the actions specified in such Non-Cooperation Notice within five Business Days from receipt of such Non-Cooperation Notice. Notwithstanding anything to the contrary in this Agreement, the condition set forth in Section 8.2(b), as it applies to the Company’s obligations under this Section 7.14, any of its Subsidiaries or any of their respective Representatives in writing for use in connection with the Debt Financing), except will be deemed to the extent such losses, claims, damages, liabilities, costs, reasonable attorneys’ fees, judgments, fines, penalties and amounts paid in settlement are determined by a final non-appealable judgment of a court of competent jurisdiction to have arisen out of, or resulted from, the gross negligence or willful misconduct of, or a Willful Breach by, be satisfied if the Company’s failure to perform its obligations under this Section 7.14, any if any, did not cause the failure of its Subsidiaries or any of their respective Representativesthe Financing to be obtained.
Appears in 1 contract
Samples: Merger Agreement (Zynga Inc)
Financing Assistance. (a) The Prior to the Closing, the Company shallshall provide, and shall cause its Subsidiaries toto use their respective reasonable best efforts to provide, and shall use its commercially reasonable best efforts to cause each of its and their respective officers, directors, employees, accountants, consultants, legal counsel, agents and other Representatives (including legalto provide, tax, regulatory and accounting advisors) to, provide such cooperation in connection with the arrangement of the Debt Financing (or any alternative financing sought or obtained by Parent and Merger Sub in accordance with the terms hereof) as may be reasonably requested by Parent or Merger Sub, including using their respective reasonable best efforts to (i) furnish Parent, Merger Sub and their financing sources with (A) the financial statements of the Company and its Subsidiaries identified in Paragraph 4 of Exhibit B of the Debt Commitment Letter as of the date hereof (or any substantially similar financial statements identified in any debt commitment letter with an alternative financing source obtained in accordance with the terms hereof), (B) the pro forma financial statements identified in Paragraph 5 of Exhibit B of the Debt Commitment Letter as of the date hereof (or any substantially similar pro forma financial statements identified in any debt commitment letter with an alternative financing source obtained in accordance with the terms hereof) (subject to the immediately following proviso, clauses (A) and (B), together, the “Required Financial Information”); provided that with respect to the pro forma financial statements described in clause (B) above, such pro forma financial statements shall not be considered part of the Required Financial Information unless the Company shall have been furnished all information relating to (x) the proposed aggregate amount of debt and equity financing, together with assumed interest rates, fees and expenses relating to the incurrence of such debt or equity financing, for the transactions contemplated hereby, (y) the assumed pro forma capitalization of the Company after giving effect to the Closing, the Financing and the refinancing or repayment of any Indebtedness of the Company and its Subsidiaries in connection therewith and (z) the assumed cost savings, synergies and similar adjustments (if any) for the transactions contemplated hereby (clauses (x), (y) and (z), collectively, the “Pro Forma Inputs”) on or prior to the fifth (5) Business Day after Parent has received a copy of the Company’s audited financial statements for the year ended January 31, 2014, and (C) such other financial and other pertinent information regarding the Company and its Subsidiaries as may be reasonably requested by Parent that is customarily needed for financings of the type contemplated by the Debt Commitment Letter (or any substantially similar financial and other pertinent information identified in any debt commitment letter with an alternative financing source obtained in accordance with the terms hereof); provided that the Company and the Company’s Subsidiaries shall have no obligation to prepare or to provide any adjustments, assumptions, estimates, projections or other information in connection with the potential purchase price accounting treatment of the Merger in connection with the preparation of the pro forma financial statements described in clause (B) above; (ii) participate and direct senior management, representatives and advisors of the Company to participate in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and ratings agencies in connection with any of such debt financing; (iii) assist Parent and Merger Sub and their financing sources in the preparation of (A) any offering documents, private placement memoranda, bank information memoranda (including the delivery of customary authorization and representation letters as contemplated by the Debt Commitment Letter as of the date hereof (or any alternative debt commitment letter with an alternative financing source obtained in accordance with the terms hereof)) and similar documents and (B) materials for rating agency presentations; (iv) cooperate with the marketing efforts of Parent and Merger Sub and their financing sources for any of such debt financing; (v) use reasonable best efforts to cause accountants to consent to the use of their reports in obtaining corporate and facilities ratings for such debt financing, (vi) facilitate the pledging of collateral, including assisting with the execution, preparation and delivery of original stock certificates of the Company and its Subsidiaries that are required to be pledged pursuant to the Debt Commitment Letter and original stock powers related thereto to the Debt Financing Sources (or any sources providing alternative debt financing pursuant to the terms hereof) (including providing copies thereof prior to the Closing Date) on or prior to the Closing Date; provided that any such pledges shall be authorized and become effective only at, or as of, the Closing, and the delivery of any such original stock certificates and original stock powers shall be delivered in escrow pending release by the Company only at, or as of, the Closing; (vii) obtain surveys and title insurance at the expense of and as reasonably requested by Parent; (viii) obtain customary payoff letters relating to the repayment of any existing third party senior indebtedness for borrowed money required by the Debt Financing Sources to be repaid on or coincidental with the Closing and upon repayment of such indebtedness termination of any related Liens securing any such obligations to be repaid; (ix) ensuring that there are no competing issues of debt securities or syndicated credit facilities of the Company and its Subsidiaries being offered or arrangement between the execution of this Agreement and the Effective Time as required by the Debt Commitment Letter; (x) provide all documentation and other information with respect to the Company and its Subsidiaries at least six (6) Business Days prior to the Closing Date as shall have been reasonably requested in writing by Parent at least ten (10) days prior to the Closing Date that is required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the Patriot Act; (xi) deliver a certificate of the Chief Financial Officer of the Company with respect to solvency matters substantially in the form attached as Annex I to Exhibit B to the Debt Commitment Letter as of the date hereof; (xii) cooperate with the Debt Financing Sources’ “due diligence” investigation with respect to the Company and its Subsidiaries; (xiii) assist in the preparation and negotiation of one or more credit agreements, indentures, purchase agreements, pledge and security documents and other definitive financing documents as may be reasonably requested by Parent; (xiv) using reasonable best efforts to take such specific actions as Parent may reasonably request in writing in connection with Parent’s obligations under the Debt Commitment Letter (or any alternative debt commitment letter with an alternative financing source obtained in accordance with the terms hereof) to ensure that the Debt Financing Sources (or any sources providing alternative debt financing pursuant to the terms hereof) benefit materially from existing lender relationships of the Company and its Subsidiaries; and (xv) if, in connection with a marketing effort contemplated by the Debt Commitment Letter (or any alternative debt commitment letter with an alternative financing source obtained in accordance with the terms hereof), Parent or Merger Sub reasonably requests the Company to file a Current Report on Form 8-K pursuant to the Exchange Act that contains material non-public information with respect to the Company or any of its Subsidiaries, which Parent or Merger Sub reasonably determines to include in a customary confidential information memorandum for, or other marketing materials related to, the Debt Financing, then the Company shall file a Current Report on Form 8-K containing such material non-public information. Notwithstanding the foregoing, (x) such requested cooperation does shall not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries), which cooperation shall, to the extent requested, include:
(i) as promptly as reasonably practicable and in any event no later than the tenth Business Day preceding the Closing Date (such date, the “Delivery Deadline”) provide Parent and the Financing Sources with (A) all historical consolidated balance sheets and related audited and unaudited statements of income, comprehensive income, shareholders’ equity and cash flows of the Company and other historical financial information regarding the Company and its Subsidiaries, in either case required to be provided to the Financing Sources by the terms of any commitment letter or agreement entered into with any Financing Source, (By) audited consolidated balance sheets and related audited statements of income, comprehensive income, shareholders’ equity and cash flows of the Company for each of the three fiscal years most recently ended more than 90 days prior to the Closing DateEffective Time, and unaudited consolidated balance sheets and related unaudited statements of income, comprehensive income, shareholders’ equity and cash flows of the Company for each subsequent fiscal quarter ended more than 45 days prior to the Closing Date, all such audited and unaudited statements complying with the requirements of Form F-4 for persons being acquired and Regulation S-X under the Securities Act for a non-issuer entity whose financial statements are filed in a registered offering of securities solely to satisfy Rule 3-05 of Regulation S-X, without giving effect to Rule 3-05(b)(4) of Regulation S-X (clauses (A) and (B), collectively, the “Required Financial Information”) and (C) such other historical financial and other information regarding the Company and its Subsidiaries as Parent may reasonably request;
(ii) as promptly as reasonably practicable, and in any event no later than the Delivery Deadline, provide Parent and the Financing Sources with such information (financial or otherwise) relating to the Company and its Subsidiaries (including information to be used in the preparation of an information package regarding the business, operations and financial condition of Parent and the Company) reasonably necessary for Parent’s preparation of customary offering or information documents to be used for the completion of the Debt Financing;
(iii) cooperate and assist with the reasonable due diligence, rating agency processes and syndication and marketing efforts of Parent, its Representatives and the Financing Sources, including participating in a reasonable number of meetings (including one-on-one meetings with representatives of the Financing Sources, prospective lenders and prospective investors, on the one hand, and senior management and Representatives of the Company, in each case with appropriate seniority and expertise, on the other hand), due diligence sessions (including accounting due diligence sessions), drafting sessions and road shows, at reasonable times and on reasonable notice; provided that the Company and its Representatives will only be required to travel or attend any in person meetings for a period not to exceed five Business Days and each such Representative shall be reasonably compensated for his or her reasonable costs and expenses;
(iv) assist Parent in preparing customary offering memoranda, rating agency presentations, lender and investor presentations, confidential information memoranda, private placement memoranda, prospectuses, filings with the SEC and other similar documents prepared in connection with the Debt Financing, including delivery and consenting to the inclusion or incorporation of the Required Financial Information and all other historical financial and other information regarding the Company and its Subsidiaries reasonably requested by Parent for use in any offering or information documents to be prepared in connection with the Debt Financing;
(v) make available, on a customary and reasonable basis and upon reasonable notice, appropriate personnel, including Representatives of the Company and its Subsidiaries, documents and information relating to the Company and its Subsidiaries, in each case, as may be reasonably requested by Parent, the Financing Sources, or as may be requested by the SEC in connection with the completion of the Debt Financing;
(vi) provide to Parent and the Financing Sources promptly, and in any event at least five Business Days prior to the Closing Date, all documentation and other information about the Company and its Affiliates requested in writing by Parent and required by the Financing Sources or regulatory authorities with respect to the Debt Financing under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act;
(vii) (A) request customary comfort letters from the Company’s independent registered public accounting firm (including customary “negative assurances”), (B) request the Company’s independent registered public accounting firm to consent to the inclusion or incorporation of their audit reports with respect to the Required Financial Information in any filing or registration statement of Parent with the SEC or any prospectus, offering memoranda, private placement memoranda, marketing material or similar documentation, including by providing customary representation letters, and (C) request the Company’s independent registered public accounting firm to reasonably cooperate with Parent and its Representatives, including by participating in accounting due diligence sessions at times and at locations reasonably acceptable to the Company and its independent registered public accounting firm;
(viii) subject to customary confidentiality provisions, provide customary authorization letters (in a form and on terms reasonably acceptable to the Company) to the Financing Sources authorizing the distribution of information to prospective lenders or investors, including, if requested, containing a representation to the Financing Sources that the public side versions of such documents, if any, do not include material non-public information about the Company or its Affiliates;
(ix) deliver notices of prepayment and/or notices for termination of commitments within the time periods required by the Credit Agreement and obtain payoff letters, lien terminations and releases and instruments of discharge, all in customary form, to be delivered at Closing providing for the payoff in full on the Closing Date of any amounts due under the Credit Agreement and for the termination of all obligations thereunder (other than other such obligations under the Credit Agreement that expressly by their terms survive such payoff, discharge and termination) and releasing, discharging and terminating any liens and other security interests created under any security documents in connection with the Credit Agreement and all related obligations thereunder and under each security documents (other than obligations under such security documents that expressly by their terms survive such payoff, discharge and termination);
(x) assisting in the preparation of, and executing and delivering, one or more credit agreements, unsecured notes, indentures and other definitive financing documents or other customary certificates (but not solvency certificates) and customary documents as may be reasonably requested by Parent which are necessary and customary in connection with the Debt Financing (which agreements, notes, indentures and other documents to which the Company is a party will be conditioned on the consummation of the Transactions);
(xi) consent to the use of the trademarks, service marks and logos of the Company or any of its Subsidiaries in connection with the Debt Financing; provided that such trademarks, service marks and logos are used solely in a manner that is not intended to or is not reasonably likely to harm or disparage the Company or any of its Subsidiaries; and
(xii) taking all other corporate actions, subject to the occurrence of the Closing, as may be reasonably necessary to permit the consummation of the Debt Financing. Notwithstanding the foregoing, (1) neither the Company nor any of its Subsidiaries shall be required to pay any fees, expenses commitment or costs other similar fee or incur or assume any other liability or obligations obligation in connection with the financings contemplated by the Debt FinancingCommitment Letter and (z) prior to the Effective Time, unless Parent reimburses or is required to indemnify the Company and its Subsidiaries pursuant to this Agreement or otherwise, (2) none of the Company, its Subsidiaries or and their respective officers, directors or directors, employees shall be required to authorize, execute or enter into or perform under any agreement (other than the authorization and representation letters contemplated above) with respect to the Debt Financing financing contemplated by the Commitment Letters that is not contingent upon the Closing occurring or that would be effective prior to the Effective Time unless such officers or directors will continue in such positions or in similar positions after the Effective Time and, in each case, such documents shall not become effective until the Effective Time or thereafter (and for the avoidance of doubt, the general partner, board of directors, managing member, or other equivalent governing body(ies) of Parent, Merger Sub and/or the Surviving Corporation shall enter into or provide any resolutions, consents, approvals or other closing arrangements on behalf of the Company and its Subsidiaries as may be required by the lenders pursuant to the Debt Commitment Letter (or any alternative debt commitment letter with an alternative financing source obtained in accordance with the terms hereof), in the case of the Surviving Corporation and its Subsidiaries to be effective only at, or as of, the Closing). Notwithstanding anything in this Agreement to the contrary, without limiting the Company’s cooperation obligations under this Section 7.12 with respect to any alternative debt commitment letter with an alternative financing source obtained in accordance with the terms hereof, if (x) Parent seeks to obtain any alternative debt commitment letter with an alternative financing source obtained in accordance with the terms hereof, (y) the cooperation required to be provided pursuant to this Section 7.12 in connection with such alternative debt commitment letter with an alternative financing source is materially more onerous to the Company than authorization letters what is required to be provided pursuant to this Section 7.12 with respect to the Debt Commitment Letter in effect on the date hereof and without giving effect to any alternative debt commitment Letter or the Debt Financing contemplated thereunder (to the extent materially more onerous, the “Incremental Debt Financing Cooperation”) and (z) the Company fails to provide any portion of such Incremental Debt Financing Cooperation, then such failure to provide such Incremental Debt Financing Cooperation shall not be deemed to be a breach of this Section 7.12 for purposes of Article VIII of this Agreement. The Company hereby consents to the use of its and its Subsidiaries’ logos in connection with the debt financing contemplated by Section 6.05(a)(viiithe Debt Commitment Letter (or any alternative debt commitment letter with an alternative financing source obtained in accordance with the terms hereof)); provided, that such logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage the Company or its Subsidiaries.
(3b) none None of the Company, its Subsidiaries or and its and their respective officers, directors or employees directors, employees, accountants, consultants, legal counsel, agents and other Representatives shall be required to deliver take any certificate action that would subject such Person reasonably believesto actual or potential liability, to bear any out-of-pocket cost or expense (except to the extent such Person is promptly reimbursed) or to pay any commitment or other similar fee or make any other payment or incur any other liability or provide or agree to provide any indemnity in connection with the financing contemplated by the Commitment Letters or their performance of their respective obligations under this Section 7.12 and any information utilized in connection therewith, in good faitheach case prior to the Effective Time. If this Agreement is terminated for any reason (such that the Closing does not occur), contains any untrue certifications or opinions, (i) Parent shall indemnify and (4) none of hold harmless the Company, its Subsidiaries or and its and their respective officers, directors directors, employees, accountants, consultants, legal counsel, agents and other Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties, actually suffered or employees shall be required to provide incurred by them in connection with the arrangement of the debt financing contemplated by the Debt Commitment Letter and the performance of their respective obligations in accordance with this Section 7.12, and any information the disclosure of which is prohibited or restricted under Applicable Law or the Company’s organizational documents or which is legally privileged or which is otherwise subject utilized in connection therewith (other than historical information related to the confidentiality provisions.
(b) The Company shall provide or its Subsidiaries provided by or on behalf of the Required Financial Information, together Company or its Subsidiaries in writing specifically for use in connection with the other information required under Section 6.05(aDebt Financing offering documents), to Parent in a manner that does not contain any untrue statement of a material fact or omit to state a material fact necessary to make such information, in light of the circumstances under which the statements contained in such information were made, not misleading. The Company shall notify Parent in writing if the Company determines that (i) any untrue statement of a material fact or omission of any material fact necessary to make such information, in light of the circumstances under which the statements contained in such information were made, not misleading exists with regard to any such information, and (ii) any Required Financial Information must be restated or (iii) the Company’s independent registered public accounting firm has withdrawn any audit opinion with respect to any financial statements contained in the Required Financial Information.
(c) Parent shall, promptly upon written request by of the Company, reimburse the Company and its Subsidiaries for all reasonable and documented out-of-pocket costs and expenses (including reasonable and documented attorneys’ fees) incurred by the Company or any its Subsidiaries (including those of its Subsidiaries accountants, consultants, legal counsel, agents and other Representatives) in satisfying its obligations under connection with the cooperation required by this Section 6.057.12. ParentFor the avoidance of doubt, HoldCo the parties hereto acknowledge and Merger Sub shall, on a joint and several basis, indemnify and hold harmless agree that the provisions contained in this Section 7.12 represent the sole obligation of the Company and its Subsidiaries and its and their respective Representatives (each an “Indemnified Party”) from and against any and all lossesofficers, claimsdirectors, damagesemployees, liabilitiesaccountants, costsconsultants, reasonable attorneys’ feeslegal counsel, judgments, fines, penalties and amounts (including amounts paid in settlement and all interest, assessments agents and other charges paid or payable in connection Representatives with or in respect of any thereof), joint or several, to which such Indemnified Party may become subject, under the Securities Act, the Exchange Act, other Federal or state statutory or other laws or regulations or otherwise, insofar as such losses, claims, damages, liabilities costs, reasonable attorney’s fees, judgements fines, penalties, and amounts paid in settlement (or actions in respect thereof) arise out of or are based upon or suffered or incurred in connection with any action taken (or failure to act) by the Financing Sources, Parent, its Subsidiaries, or any of their respective Affiliates or the Company, any of its Subsidiaries or any of their respective Representatives pursuant to this Section 6.05 (other than the use of any information provided by the Company, any of its Subsidiaries or any of their respective Representatives in writing for use cooperation in connection with the arrangement of the Debt Financing), except to the extent such losses, claims, damages, liabilities, costs, reasonable attorneys’ fees, judgments, fines, penalties and amounts paid in settlement are determined by a final non-appealable judgment of a court of competent jurisdiction to have arisen out of, or resulted from, the gross negligence or willful misconduct of, or a Willful Breach by, the Company, any of its Subsidiaries or any of their respective Representatives.
Appears in 1 contract
Financing Assistance. (a) The During the period from the date of this Agreement through the Closing Date or the earlier termination of this Agreement pursuant to Section 10.01, the Company shallagrees to use reasonable best efforts to provide, and shall cause the Company’s Subsidiaries and its Subsidiaries to, and their Representatives to use reasonable best efforts to provide and shall use its commercially reasonable best efforts to cause direct its and their Representatives to provide, in each of their respective Representatives (including legalcase at Purchaser’s sole expense, tax, regulatory and accounting advisors) to, provide such customary cooperation as may be reasonably requested by Parent Purchaser in connection with the Debt Financing or any offering of senior secured notes (provided that such cooperation does not unreasonably interfere with “Additional Senior Notes”) as contemplated by the ongoing operations of the Company and its SubsidiariesCommitment Documents (each a “Financing Transaction”), which cooperation shall, to the extent requested, include:
including using reasonable best efforts to: (i) as promptly as reasonably practicable and in any event no later than the tenth Business Day preceding the Closing Date (furnish to Purchaser such date, the “Delivery Deadline”) provide Parent and the Financing Sources with (A) all historical consolidated balance sheets and related audited and unaudited statements of income, comprehensive income, shareholders’ equity and cash flows of the Company and other historical financial customary information regarding the Company and its Subsidiaries, in either case required to be provided to the Financing Sources by the terms of any commitment letter or agreement entered into with any Financing Source, (B) audited including such historical consolidated balance sheets and related audited financial statements of income, comprehensive income, shareholders’ equity and cash flows of the Company (which for each the avoidance of doubt includes at least audited financial statements for the three two most recently completed fiscal years most recently ended more than 90 days prior to as well as interim financial statements and notes (reviewed by the Closing Date, and unaudited consolidated balance sheets and related unaudited statements of income, comprehensive income, shareholders’ equity and cash flows of the Company auditors at a SAS 100 (or any applicable successor thereto) level) for each subsequent fiscal quarter ended more than 45 at least forty-five (45) days prior to any pricing date occurring during the Closing DateMarketing Period (but excluding the fourth quarter of any fiscal year)) (the financial statements referenced in the foregoing parenthetical, all the “Historical Financials”), as may be reasonably requested by Purchaser to the extent such audited information is of the type and unaudited statements complying with the requirements form customarily included in an offering memorandum for private placements of Form F-4 for persons being acquired and Regulation Snon-X convertible high yield bonds pursuant to Rule 144A promulgated under the Securities Act for of 1933 (provided, that such information shall not include (1) a non-issuer entity whose description of the Financing Transactions, including any “description of notes,” or other information customarily provided by financing sources or their counsel, (2) risk factors solely relating to the Financing Transactions (as opposed to the Company, its Subsidiaries or their respective businesses) or (3) financial statements are filed in a registered offering of securities solely to satisfy Rule or other information (including segment reporting and consolidating and other financial statements and data) required by Rules 3-05 of Regulation S-X05, without giving effect to Rule 3-05(b)(4) 09, 3-10 and 3-16 of Regulation S-X other than the Historical Financials (clauses provided that information with respect to assets, liabilities, revenue and EBITDA with respect to non-guarantors in the aggregate should be provided), Item 402 of Regulation S-K, information regarding executive compensation related to SEC Release Nos. 33- 8732A, 34-54302A and IC-27444A) or any other information customarily excluded for an offering memorandum for private placements of non-convertible high yield bonds pursuant to Rule 144A promulgated under the Securities Act of 1933 (Ait being understood and agreed that such financial statements shall be of the Company and its Subsidiaries and that financial statements for any period earlier than the fiscal year ended December 31, 2018 shall not be required)) and (B)subject to the immediately following proviso, collectively, the “Required Financial Information”); (ii) participate (and cause senior officers and representatives of the Company and its Subsidiaries to participate) in a reasonable number of due diligence (including customary auditor due diligence) and other meetings and presentations with prospective lenders and investors (including the Financing Sources), and sessions with the ratings agencies, in each case in connection with the Financing Transactions and only to the extent customarily needed for financings of the type contemplated by the Financing Transactions; (iii) reasonably assist Purchaser and the Financing Sources in their preparation of (A) any bank information memoranda (including the delivery of customary authorization and representation letters to the extent contemplated by any Financing Transaction and customary representation letters to the Company’s auditors), confidential information memorandums and related lender presentations, (B) materials for rating agency presentations and (C) such other historical financial any high yield offering memorandum, road show presentations or similar documents customarily required for financing of the type contemplated by the Financing Transactions; (iv) reasonably cooperate with the marketing efforts of Purchaser and its Financing Sources with respect to the Financing Transactions, in each case, only to the extent customarily needed for financings of the type contemplated by the Financing Transactions; (v) provide Purchaser all documentation and other information regarding with respect to the Company and its Subsidiaries as Parent may reasonably request;
(ii) as promptly as reasonably practicable, and in any event no later than the Delivery Deadline, provide Parent and the Financing Sources with such information (financial or otherwise) relating to the Company and its Subsidiaries (including information to be used in the preparation of an information package regarding the business, operations and financial condition of Parent and the Company) reasonably necessary for Parent’s preparation of customary offering or information documents to be used for the completion of the Debt Financing;
(iii) cooperate and assist with the reasonable due diligence, rating agency processes and syndication and marketing efforts of Parent, its Representatives and the Financing Sources, including participating in a reasonable number of meetings (including one-on-one meetings with representatives of the Financing Sources, prospective lenders and prospective investors, on the one hand, and senior management and Representatives of the Company, in each case with appropriate seniority and expertise, on the other hand), due diligence sessions (including accounting due diligence sessions), drafting sessions and road shows, at reasonable times and on reasonable notice; provided that the Company and its Representatives will only be required to travel or attend any in person meetings for a period not to exceed five Business Days and each such Representative shall be reasonably compensated for his or her reasonable costs and expenses;
(iv) assist Parent in preparing customary offering memoranda, rating agency presentations, lender and investor presentations, confidential information memoranda, private placement memoranda, prospectuses, filings with the SEC and other similar documents prepared in connection with the Debt Financing, including delivery and consenting to the inclusion or incorporation of the Required Financial Information and all other historical financial and other information regarding the Company and its Subsidiaries have been reasonably requested in writing by Parent for use in any offering or information documents to be prepared in connection with the Debt Financing;
(v) make available, on a customary and reasonable basis and upon reasonable notice, appropriate personnel, including Representatives of the Company and its Subsidiaries, documents and information relating to the Company and its Subsidiaries, in each case, as may be reasonably requested by Parent, the Financing Sources, or as may be requested by the SEC in connection with the completion of the Debt Financing;
(vi) provide to Parent and the Financing Sources promptly, and in any event Purchaser at least five eight (8) Business Days prior to the Closing Date, all documentation and other information about the Company and its Affiliates requested Date that is required in writing by Parent and required by connection with the Financing Sources or Transactions by U.S. regulatory authorities with respect to the Debt Financing under applicable “know your know-your-customer” and anti-money laundering rules and regulations, including the PATRIOT Act;
USA Patriot Act of 2001 and 31 C.F.R.§1010.230 and that are required in connection with any Financing Transaction; (viivi) (A) request customary comfort letters from facilitate the Company’s independent registered public accounting firm accountants delivery of consents and customary “comfort letters” (including customary “as to negative assurances”), (B) request the Company’s independent registered public accounting firm to consent to the inclusion or incorporation of their audit reports with respect to the Required Financial Information in any filing or registration statement of Parent with the SEC or any prospectus, offering memoranda, private placement memoranda, marketing material or similar documentation, including by providing customary representation letters, and (C) request the Company’s independent registered public accounting firm to reasonably cooperate with Parent and its Representatives, including by participating in accounting due diligence sessions at times and at locations reasonably acceptable to the Company and its independent registered public accounting firm;
(viii) subject to customary confidentiality provisions, provide customary authorization letters (in a form and on terms reasonably acceptable to the Company) to the Financing Sources authorizing the distribution of information to prospective lenders or investors, including, if requested, containing a representation to the Financing Sources that the public side versions of such documents, if any, do not include material non-public information about the Company or its Affiliates;
(ix) deliver notices of prepayment and/or notices for termination of commitments within the time periods required by the Credit Agreement and obtain payoff letters, lien terminations and releases and instruments of discharge, all in customary form, to be delivered at Closing providing for the payoff in full on the Closing Date of any amounts due under the Credit Agreement and for the termination of all obligations thereunder (other than other such obligations under the Credit Agreement that expressly by their terms survive such payoff, discharge and termination) and releasing, discharging and terminating any liens and other security interests created under any security documents in connection with the Credit Agreement Financing Transactions and all only to the extent customarily required for financings of the type contemplated by the Financing Transactions; (vii) cooperating and providing customary information reasonably required by the Financing Sources in the context of due diligence and verification relating to the Financing Transactions, in compliance with applicable requirements of Law and customary practice, and (viii) cooperating in the discharge and termination of the Company Indebtedness and the Liens related obligations thereunder thereto (which discharge and under each security documents (other than termination for clarity shall not be required to take effect before the Closing, and subject to customary exceptions for obligations under such security documents Company Indebtedness that expressly by their terms survive such payofftermination and discharge), discharge including obtaining a customary debt pay-off letter(s) with respect thereto; and termination);
(xix) assisting in the preparation of, and executing and deliveringdelivering any customary guarantee documentation, one or more credit agreementspledge and security documents, unsecured notes, indentures and other definitive financing documents documents, or other customary certificates (but not solvency certificates) and customary , instruments or documents as may be reasonably requested by Parent which are necessary and customary the Purchaser in connection with the Debt Financing Transactions and otherwise using reasonable best efforts to facilitate the pledging of and perfection of security interests in collateral that will secure the Financing Transactions (which agreementsin each case, notes, indentures and other documents to which for the Company is a party will be conditioned on the consummation avoidance of the Transactions);
(xi) consent to the use of the trademarks, service marks and logos of the Company or any of its Subsidiaries in connection with the Debt Financing; provided that such trademarks, service marks and logos are used solely in a manner that is not intended to or is not reasonably likely to harm or disparage the Company or any of its Subsidiaries; and
(xii) taking all other corporate actionsdoubt, subject to the occurrence of the Closing, as may be reasonably necessary to permit the consummation of the Debt Financinglimitations in clause (D) below). Notwithstanding the foregoing, (1A) such requested cooperation shall not (i) unreasonably disrupt the operations of the Company or its Subsidiaries or (ii) cause significant competitive harm to the Company or its Subsidiaries if the transactions contemplated by this Agreement are not consummated, (B) nothing in this Section 7.06 shall require cooperation to the extent that it would (y) cause any condition to the Closing set forth in Section 2.01 or 2.02 to not be satisfied or (z) cause any breach of this Agreement, (C) neither the Company nor any of its Subsidiaries shall be required to (1) pay any feescommitment or other similar fee prior to the Closing, expenses (2) incur or costs or incur assume any liability or obligations in connection with the Debt Financingfinancings contemplated by the Financing Transactions, unless Parent reimburses (3) deliver or is required obtain opinions of internal or external counsel, (4) provide access to indemnify or disclose information where the Company and its Subsidiaries pursuant to determines that such access or disclosure could jeopardize the attorney-client privilege or contravene any Law or Contractual Obligations, or (5) waive or amend any terms of this Agreement or otherwiseany other Contractual Obligation to which the Company or its Subsidiaries is party, and (2D) none of the Company, its Subsidiaries or their respective officersdirectors, directors officers or employees shall be required to execute execute, deliver or enter into into, or perform under any agreement agreement, document or instrument (other than the authorization and representation letters contemplated above), with respect to the Debt Financing Transactions that is not contingent upon the Closing occurring or that would be effective prior to the Effective Time Closing and the directors and managers of the Company’s Subsidiaries shall not be required to adopt resolutions approving the agreements, documents and instruments pursuant to which the Financing Transactions are obtained, in each case which are effective prior to the Closing. Notwithstanding anything to the contrary, the Company shall be deemed to have complied with this Section 7.06 for all purposes of this Agreement (other than authorization letters including Article III and Article X) unless the Financing Transaction has not been obtained primarily as a result of the Company’s willful breach of its obligations under this Section 7.06. The Company hereby consents to the use of its and its Subsidiary’s logos in connection with the financing contemplated by Section 6.05(a)(viii))the Financing Transactions; provided, that such logos are used solely in a manner that is not intended to, nor reasonably likely to, harm or disparage the Company or the Company’s Subsidiaries.
(b) None of the Seller, the Company, the Company’s Subsidiaries or their respective Affiliates or Representatives shall be required to (i) take any action that would subject any such Person to actual or potential liability, (3ii) none bear any cost or expense or to pay any commitment or other similar fee or make any other payment or (iii) incur any other liability or provide or agree to provide any indemnity, in each case in connection with the Financing Transactions or their performance of their respective obligations under this Section 7.06 and any information utilized in connection therewith. The Seller and the Company shall have no liability whatsoever to Purchaser in respect of any financial information or data or other information provided pursuant to this Section 7.06. Purchaser shall indemnify, defend and hold harmless each of the Seller, the Company, its Subsidiaries or their respective officers, directors or employees shall be required to deliver any certificate that such Person reasonably believes, in good faith, contains any untrue certifications or opinions, and (4) none of the Company, its Subsidiaries or their respective officers, directors or employees shall be required to provide any information the disclosure of which is prohibited or restricted under Applicable Law or the Company’s organizational documents or which is legally privileged or which is otherwise subject to the confidentiality provisions.
(b) The Company shall provide the Required Financial Information, together with the other information required under Section 6.05(a), to Parent in a manner that does not contain any untrue statement of a material fact or omit to state a material fact necessary to make such information, in light of the circumstances under which the statements contained in such information were made, not misleading. The Company shall notify Parent in writing if the Company determines that (i) any untrue statement of a material fact or omission of any material fact necessary to make such information, in light of the circumstances under which the statements contained in such information were made, not misleading exists with regard to any such information, (ii) any Required Financial Information must be restated or (iii) the Company’s independent registered public accounting firm has withdrawn any audit opinion with respect to any financial statements contained in the Required Financial Information.
(c) Parent shall, promptly upon written request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses (including reasonable and documented attorneys’ fees) incurred by the Company or any of its Subsidiaries in satisfying its obligations under this Section 6.05. Parent, HoldCo and Merger Sub shall, on a joint and several basis, indemnify and hold harmless the Company and its Subsidiaries and their respective Affiliates and Representatives (each an “Indemnified Party”) from and against any and all liabilities, losses, damages, claims, damages, liabilities, costs, reasonable attorneys’ feesexpenses, judgments, fines, penalties and amounts (including amounts paid in settlement and all interest, assessments awards, judgments and other charges paid penalties suffered or payable incurred by them in connection with or in respect of any thereof), joint or several, to which such Indemnified Party may become subject, under the Securities Act, the Exchange Act, other Federal or state statutory or other laws or regulations or otherwise, insofar as such losses, claims, damages, liabilities costs, reasonable attorney’s fees, judgements fines, penalties, and amounts paid in settlement (or actions in respect thereof) arise out of or are based upon or suffered or incurred in connection with any action taken (or failure to act) by the Financing Sources, Parent, its Subsidiaries, or any Transactions and the performance of their respective Affiliates obligations under this Section 7.06 and any information utilized in connection therewith, other than in each case as a result of fraud or a willful breach of the Company’s obligations under this Agreement. Purchaser shall, promptly upon request of the Seller or the Company, any reimburse the Seller or the Company and its Subsidiaries for all out-of-pocket fees, costs and expenses incurred by the Company or its Subsidiaries (including those of its Subsidiaries or any of their respective Representatives pursuant to this Section 6.05 (other than the use of any information provided by the Company, any of its Subsidiaries or any of their respective Representatives in writing for use Affiliates and Representatives) in connection with the Debt Financing), except to cooperation required by this Section 7.06.
(c) For the extent such losses, claims, damages, liabilities, costs, reasonable attorneys’ fees, judgments, fines, penalties and amounts paid in settlement are determined by a final non-appealable judgment avoidance of a court of competent jurisdiction to have arisen out of, or resulted fromdoubt, the gross negligence or willful misconduct ofparties hereto acknowledge and agree that the provisions contained in this Section 7.06, or a Willful Breach byrepresent the sole obligation of the Seller, the Company, any of its the Company’s Subsidiaries or any of and Affiliates and their respective RepresentativesRepresentatives with respect to cooperation in connection with the arrangement of the Financing Transactions and no other provision of this Agreement (including the Exhibits and Schedules hereto) shall be deemed to expand or modify such obligations.
Appears in 1 contract
Financing Assistance. (a) The Prior to the Closing, the Company shallshall provide, and shall cause the Company’s Subsidiaries to provide, and shall use reasonable best efforts to cause its Subsidiaries toand their officers, directors and employees to provide, and shall use its commercially reasonable best efforts to cause each of direct its and their respective accountants, legal counsel and other Representatives (including legalto provide, taxat Buyer’s sole cost and expense, regulatory and accounting advisors) to, provide such as promptly as reasonably practicable all cooperation as may be reasonably requested by Parent Buyer in connection with arranging, obtaining and syndicating the Financing, causing the conditions in the Commitment Letters to be satisfied, including (i) furnishing to Buyer and its Financing Sources as promptly as reasonably practicable the Required Information, (ii) reasonably cooperating with Buyer and the Financing Sources in the preparation of Offering Documents (and any supplements thereto), (iii) reasonably cooperating with the marketing and rating agency efforts of Buyer and the Financing Sources with respect to the Financing, including reasonably cooperating in the preparation of any bank information memoranda and materials for ratings agencies and direct contact between appropriate members of senior management and Representatives of the Company and its Subsidiaries and potential lenders and investors in the Financing, in each case, only to the extent customarily needed for financings of the type contemplated by the Commitment Letters, (iv) providing Buyer at least three (3) Business Days before the Closing Date all documentation and other information with respect to the Company and its Subsidiaries as shall have been reasonably requested in writing by Buyer at least eight (8) Business Days prior to the Closing Date that is required in connection with the Debt Financing (provided that such cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries), which cooperation shall, to the extent requested, include:
(i) as promptly as reasonably practicable and in any event no later than the tenth Business Day preceding the Closing Date (such date, the “Delivery Deadline”) provide Parent and the Financing Sources with (A) all historical consolidated balance sheets and related audited and unaudited statements of income, comprehensive income, shareholders’ equity and cash flows of the Company and other historical financial information regarding the Company and its Subsidiaries, in either case required to be provided to the Financing Sources by the terms of any commitment letter or agreement entered into with any Financing Source, (B) audited consolidated balance sheets and related audited statements of income, comprehensive income, shareholders’ equity and cash flows of the Company for each of the three fiscal years most recently ended more than 90 days prior to the Closing Date, and unaudited consolidated balance sheets and related unaudited statements of income, comprehensive income, shareholders’ equity and cash flows of the Company for each subsequent fiscal quarter ended more than 45 days prior to the Closing Date, all such audited and unaudited statements complying with the requirements of Form F-4 for persons being acquired and Regulation S-X under the Securities Act for a non-issuer entity whose financial statements are filed in a registered offering of securities solely to satisfy Rule 3-05 of Regulation S-X, without giving effect to Rule 3-05(b)(4) of Regulation S-X (clauses (A) and (B), collectively, the “Required Financial Information”) and (C) such other historical financial and other information regarding the Company and its Subsidiaries as Parent may reasonably request;
(ii) as promptly as reasonably practicable, and in any event no later than the Delivery Deadline, provide Parent and the Financing Sources with such information (financial or otherwise) relating to the Company and its Subsidiaries (including information to be used in the preparation of an information package regarding the business, operations and financial condition of Parent and the Company) reasonably necessary for Parent’s preparation of customary offering or information documents to be used for the completion of the Debt Financing;
(iii) cooperate and assist with the reasonable due diligence, rating agency processes and syndication and marketing efforts of Parent, its Representatives and the Financing Sources, including participating in a reasonable number of meetings (including one-on-one meetings with representatives of the Financing Sources, prospective lenders and prospective investors, on the one hand, and senior management and Representatives of the Company, in each case with appropriate seniority and expertise, on the other hand), due diligence sessions (including accounting due diligence sessions), drafting sessions and road shows, at reasonable times and on reasonable notice; provided that the Company and its Representatives will only be required to travel or attend any in person meetings for a period not to exceed five Business Days and each such Representative shall be reasonably compensated for his or her reasonable costs and expenses;
(iv) assist Parent in preparing customary offering memoranda, rating agency presentations, lender and investor presentations, confidential information memoranda, private placement memoranda, prospectuses, filings with the SEC and other similar documents prepared in connection with the Debt Financing, including delivery and consenting to the inclusion or incorporation of the Required Financial Information and all other historical financial and other information regarding the Company and its Subsidiaries reasonably requested by Parent for use in any offering or information documents to be prepared in connection with the Debt Financing;
(v) make available, on a customary and reasonable basis and upon reasonable notice, appropriate personnel, including Representatives of the Company and its Subsidiaries, documents and information relating to the Company and its Subsidiaries, in each case, as may be reasonably requested by Parent, the Financing Sources, or as may be requested by the SEC in connection with the completion of the Debt Financing;
(vi) provide to Parent and the Financing Sources promptly, and in any event at least five Business Days prior to the Closing Date, all documentation and other information about the Company and its Affiliates requested in writing by Parent and required by the Financing Sources or U.S. regulatory authorities with respect to the Debt Financing under applicable “know your know-your-customer” and anti-money laundering rules and regulations, including the PATRIOT Patriot Act;
, and that are required by Section 6 of Exhibit D of the Secured Debt Commitment Letter and Section 4 of Exhibit C of the Unsecured Debt Commitment Letter, (viiv) facilitating the pledging of collateral substantially concurrently with the Closing, including obtaining such documentation and/or taking such steps (Aincluding lien searches, payoff letters, lien releases and instruments of termination or discharge) request customary comfort letters from reasonably requested by Buyer in order to release all Liens over the properties and assets of the Company and taking reasonable actions necessary to permit the Financing Sources to evaluate the Company’s independent registered public accounting firm (including customary “negative assurances”)assets for the purposes of establishing collateral arrangements, (Bvi) request the Company’s independent registered public accounting firm to consent to the inclusion or incorporation having appropriate members of their audit reports senior management, with respect to the Required Financial Information in any filing or registration statement appropriate seniority and expertise of Parent with the SEC or any prospectus, offering memoranda, private placement memoranda, marketing material or similar documentation, including by providing customary representation letters, and (C) request the Company’s independent registered public accounting firm to reasonably cooperate with Parent and its Representatives, including by participating in accounting due diligence sessions at times and at locations reasonably acceptable to the Company and its independent registered public accounting firm;
subsidiaries, and certain Representatives of the Company and its Subsidiaries participate at reasonable times in a commercially reasonable number of meetings (including customary one-on-one meetings), presentations, road shows, and rating agency sessions, in each case, upon reasonable advance notice, (vii) causing the execution and delivery of such documents as Buyer may reasonably request (including corporate actions) from those directors, members and officers of the Company and its Subsidiaries (including (x) a certificate of the chief financial officer of the Company with respect to solvency matters as of the Closing, on a pro forma basis in the form attached to each Debt Commitment Letter (or substantially similar provisions in any Alternative Financing) (y) signing resolutions or taking similar actions approving the Debt Financing and (z) the Authorization Letters), (viii) subject to customary confidentiality provisions, provide customary authorization letters facilitating the execution and delivery at the Closing of such definitive documents as Buyer may reasonably request (in a form including guarantee and on terms reasonably acceptable security documents) related to the Company) to Debt Financing on the Financing Sources authorizing terms contemplated by the distribution of information to prospective lenders or investorsDebt Commitment Letters, including, if requested, containing a representation to the Financing Sources that the public side versions of such documents, if any, do not include material non-public information about the Company or its Affiliates;
(ix) reasonably cooperating with Buyer’s legal counsel in connection with any legal opinions that such legal counsel may be required to deliver notices of prepayment and/or notices for termination of commitments within the time periods required by the Credit Agreement and obtain payoff letters, lien terminations and releases and instruments of discharge, all in customary form, to be delivered at Closing providing for the payoff in full on the Closing Date of any amounts due under the Credit Agreement and for the termination of all obligations thereunder (other than other such obligations under the Credit Agreement that expressly by their terms survive such payoff, discharge and termination) and releasing, discharging and terminating any liens and other security interests created under any security documents in connection with the Credit Agreement and all related obligations thereunder and under each security documents (other than obligations under such security documents that expressly by their terms survive such payoffFinancing, discharge and termination);
(x) assisting using reasonable best efforts to assist the Financing Sources in benefiting from the preparation of, and executing and delivering, one or more credit agreements, unsecured notes, indentures and other definitive financing documents or other customary certificates (but not solvency certificates) and customary documents as may be reasonably requested by Parent which are necessary and customary in connection with the Debt Financing (which agreements, notes, indentures and other documents to which existing lending relationships of the Company is a party will be conditioned on the consummation of the Transactions);
and its Subsidiaries, (xi) consent reasonably cooperating with Buyer to the use of extent within the trademarks, service marks and logos control of the Company or any of its Subsidiaries in connection with the Debt Financing; provided that such trademarks, service marks and logos are used solely in a manner that is not intended to or is not reasonably likely to harm or disparage the Company or any of its Subsidiaries; and
(xii) , and taking all other corporate organizational actions, subject to the occurrence of the ClosingEffective Time, as may be reasonably necessary requested by Buyer to permit the consummation of the Debt Financing, and (xii) cooperating with the Financing Sources requests for due diligence to the extent customary and reasonable. Notwithstanding the foregoing, (1A) such requested cooperation shall not unreasonably interfere with the business or the ongoing operations of the Company and/or the Company’s Subsidiaries, (B) nothing in this Section 7.11 shall require cooperation to the extent that it would (x) cause any condition to the Closing set forth in Section 8.1 to not be satisfied or otherwise cause any breach of this Agreement or (y) reasonably be expected to conflict with or violate the Company’s organizational documents or any Law, or result in the contravention of, or result in a violation or breach or default under, any Material Contract, (C) neither the Company nor any of its the Company’s Subsidiaries shall be required to pay any fees, expenses commitment or costs other similar fee or incur prior to the Closing or incur or assume any liability other Liability or obligations obligation in connection with the financings contemplated by the Debt FinancingCommitment Letters or the Debt Financing prior to the Closing, unless Parent reimburses (D) prior to the Closing, none of the directors or is managers of the Company, acting in such capacity, shall be required to indemnify execute, deliver or enter into or perform any agreement, document or instrument, including any Debt Financing Agreement, with respect to the Company Debt Financing or adopt any resolutions approving the agreements, documents and its Subsidiaries instruments pursuant to this Agreement or otherwise, which the Debt Financing is obtained that would become operative prior to the Closing and (2E) none of the Company, its the Company’s Subsidiaries or their respective officersmanaging members, directors directors, managers, officers or employees shall be required to execute execute, deliver or enter into into, or perform under any agreement agreement, document or instrument, including any Debt Financing Agreement, with respect to the Debt Financing that is not contingent upon the Closing occurring or that would be effective prior to the Effective Time (other than authorization letters Closing and the managing members, directors and managers of the Company’s Subsidiaries shall not be required to adopt resolutions approving the agreements, documents and instruments pursuant to which the Debt Financing is obtained, in each case which are effective prior to the Closing. The Company hereby consents to the use of its and the Company’s Subsidiaries’ logos in connection with the Financing contemplated by Section 6.05(a)(viii))the Commitment Letters; provided, that such logos are used solely in a manner that is not intended to, nor reasonably likely to, harm or disparage the Company or the Company’s Subsidiaries.
(3b) Except to the extent conditioned on the Closing, none of the Company, its the Company’s Subsidiaries or and their respective partners, members, directors, managers, officers, directors or employees employees, accountants, legal counsel and other Representatives shall be required to deliver take any certificate action that would subject such Person reasonably believesto actual or potential liability, to bear any cost or expense or to pay any commitment or other similar fee or make any other payment or incur any other liability or provide or agree to provide any indemnity in good faithconnection with the Debt Financing or their performance of their respective obligations under this Section 7.11 and any information utilized in connection therewith. The Company and its Affiliates shall not have any liability to Buyer in respect of any financial information or data or other information provided pursuant to this Section 7.11. Buyer shall indemnify, contains any untrue certifications or opinions, defend and (4) none hold harmless each of the Company, its Subsidiaries or their respective officers, directors or employees shall be required to provide any information the disclosure of which is prohibited or restricted under Applicable Law or the Company’s organizational documents Subsidiaries and their respective partners, members, directors, managers, officers, employees, accountants, legal counsel and other Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or which is legally privileged or which is otherwise subject to the confidentiality provisions.
(b) The Company shall provide the Required Financial Information, together incurred by them in connection with the other Debt Financing and the performance of their respective obligations under this Section 7.11 and any information required under Section 6.05(a), to Parent utilized in a manner that does not contain any untrue statement of a material fact or omit to state a material fact necessary to make such information, in light of the circumstances under which the statements contained in such information were made, not misleadingconnection therewith. The Company shall notify Parent in writing if the Company determines that (i) any untrue statement of a material fact or omission of any material fact necessary to make such information, in light of the circumstances under which the statements contained in such information were made, not misleading exists with regard to any such information, (ii) any Required Financial Information must be restated or (iii) the Company’s independent registered public accounting firm has withdrawn any audit opinion with respect to any financial statements contained in the Required Financial Information.
(c) Parent Buyer shall, promptly upon written request by of the Company, reimburse the Company and the Company’s Subsidiaries for all reasonable and documented out-of-pocket costs and expenses (including reasonable and documented attorneys’ fees) incurred by the Company or any its Subsidiaries (including those of its Subsidiaries accountants, consultants, legal counsel, agents and other Representatives) in satisfying its obligations under connection with the cooperation required by this Section 6.057.11. ParentFor the avoidance of doubt, HoldCo the parties hereto acknowledge and Merger Sub shallagree that the provisions contained in this Section 7.11 and as otherwise set forth in this Agreement represent the sole obligation of the Company, on a joint and several basis, indemnify and hold harmless the Company and its Company’s Subsidiaries and their respective Representatives (each an “Indemnified Party”) from and against any and all lossespartners, claimsmembers, damagesdirectors, liabilitiesmanagers, costsofficers, reasonable attorneys’ feesemployees, judgmentsaccountants, fines, penalties and amounts (including amounts paid in settlement and all interest, assessments legal counsel and other charges paid or payable in connection Representatives with or in respect of any thereof), joint or several, to which such Indemnified Party may become subject, under the Securities Act, the Exchange Act, other Federal or state statutory or other laws or regulations or otherwise, insofar as such losses, claims, damages, liabilities costs, reasonable attorney’s fees, judgements fines, penalties, and amounts paid in settlement (or actions in respect thereof) arise out of or are based upon or suffered or incurred in connection with any action taken (or failure to act) by the Financing Sources, Parent, its Subsidiaries, or any of their respective Affiliates or the Company, any of its Subsidiaries or any of their respective Representatives pursuant to this Section 6.05 (other than the use of any information provided by the Company, any of its Subsidiaries or any of their respective Representatives in writing for use cooperation in connection with the arrangement of the Debt Financing), except to the extent such losses, claims, damages, liabilities, costs, reasonable attorneys’ fees, judgments, fines, penalties and amounts paid in settlement are determined by a final non-appealable judgment of a court of competent jurisdiction to have arisen out of, or resulted from, the gross negligence or willful misconduct of, or a Willful Breach by, the Company, any of its Subsidiaries or any of their respective Representatives.
Appears in 1 contract
Samples: Stock Purchase Agreement (Envision Healthcare Corp)
Financing Assistance. (a) The Prior to the Closing, the Company shall, and shall cause its Subsidiaries toagrees to use reasonable best efforts to provide, and shall use its commercially reasonable best efforts to cause each of the Company’s Subsidiaries and its and their respective officers, directors, employees, accountants, consultants, legal counsel, agents and other Representatives (including legalto provide, tax, regulatory and accounting advisors) to, provide such cooperation in connection with the Debt Financing as may be reasonably requested by Parent Buyer, including using their respective reasonable best efforts to: (i) promptly furnish Buyer and its financing sources with (A) (1) audited consolidated financial statements of the Company consisting of balance sheets as of the last date of each of the three fiscal years of the Company ended at least 90 days prior to the Closing Date and income statements and statements of stockholders’ equity and cash flows for each of the three fiscal years of the Company ended at least 90 days prior to the Closing Date and an unqualified audit report relating thereto and (2) unaudited consolidated financial statements of the Company consisting of balance sheets and income statements and statements of cash flows as of the last day of and for the most recently completed fiscal quarter ended at least 45 days before the Closing Date, or, in the case of the statement of cash flows, for the period from the beginning of the most recently completed fiscal year ended at least 90 days before the Closing Date to the last day of the most recently completed fiscal quarter ended at least 45 days before the Closing Date, other than with respect to any quarter-end that is also a fiscal year-end (collectively, the information described in this clause (i)(A), the “Required Financial Information”) and (B) such other pertinent financial and other information regarding the Company and its Subsidiaries as may be reasonably requested by Buyer in connection with the Debt Financing; (ii) assist Buyer and Buyer LLC Sub in their preparation of the pro forma financial statements in connection with the Financing (including by providing such financial information about the Company and its Subsidiaries as is reasonably requested by Buyer in order for Buyer to prepare such pro forma financial statements); (iii) participate in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and ratings agencies in connection with any of such Debt Financing; (iv) assist Buyer and its financing sources in the preparation of (A) any offering documents, private placement memoranda, bank information memoranda (including any public-side versions thereof) and similar documents and (B) materials for rating agency presentations; (v) cooperate with the marketing efforts of Buyer and its financing sources for any of such Debt Financing; (vi) facilitate the pledging of collateral and the provision of guarantees; provided that any such pledges and guarantees shall be authorized and become effective only at, or as of, the Closing; (vii) obtain surveys and title insurance (including delivering such title affidavits reasonably requested by the title insurer) at the expense of and as reasonably requested by Buyer; (viii) (A) with respect to the Credit Facilities, deliver all notices and take other actions required to facilitate the termination of commitments in respect of the Credit Facilities, repayment in full of all obligations in respect of the Credit Facilities and release of any Liens and guarantees in connection therewith on the Closing Date and (B) furnish to Buyer, no later than three (3) Business Days prior to the Closing Date, (I) a customary payoff letter (which for the avoidance of doubt, shall include lien releases (and authorizations for Buyer and/or its designees to effectuate UCC-3 filings) and discharges of obligations of the Company and its Subsidiaries with respect to the Senior Secured Credit Facilities) from all financial institutions and other Persons party to the Senior Secured Credit Facilities, or the applicable agent, trustee or other representative on behalf of such Persons and (II) with respect to the Corporate Headquarters Loan, a payoff letter from Alpine Bank stating that upon receipt of payment of the applicable payoff amount plus any accrued interest, all obligations (including guarantees) in respect of the Corporate Headquarters Loan and Liens in connection therewith on the assets of the Company or any Subsidiary of the Company shall be, substantially concurrently with the receipt of the applicable payoff amount on the Closing Date, released or arrangements reasonably satisfactory to Buyer for such release shall have been made by such time, subject, as applicable, to the replacement (or cash collateralization or backstopping) of any then outstanding letters of credit or similar Indebtedness (each payoff letter described in (I) and (II), a “Payoff Letter”); (ix) provide all documentation and other information with respect to the Company and its Subsidiaries at least five (5) days prior to the Closing Date as shall have been reasonably requested in writing by Buyer at least ten (10) days prior to the Closing Date that is customarily required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the Patriot Act; (x) cooperate with the Debt Financing Sources’ “due diligence” investigation with respect to the Company and its Subsidiaries and (xi) assist in the preparation and negotiation of one or more credit agreements, indentures, purchase agreements, pledge and security documents and other definitive financing documents as may be reasonably requested by Buyer and facilitate the execution and delivery of such documents (which documents shall only be required to become effective as of the Closing Date). Notwithstanding the foregoing, (w) the covenants of the Company set forth in this Section 8.12 shall not, in the context of any Debt Financing other than that contemplated by the Debt Commitment Letter as in effect on the date hereof and referenced in Section 7.6, impose on the Company or any of the Company’s Subsidiaries or any of its and their officers, directors, employees, accountants, consultants, legal counsel, agents and other Representatives, any meaningfully greater burden, obligation, time commitment or other commitment than those that had been (or would have been) imposed on them in the context of the Debt Financing contemplated by the Debt Commitment Letter as in effect on the date hereof and referenced in Section 7.6, (x) such requested cooperation does shall not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries), which cooperation shall, to the extent requested, include:
(i) as promptly as reasonably practicable and in any event no later than the tenth Business Day preceding the Closing Date (such date, the “Delivery Deadline”) provide Parent and the Financing Sources with (A) all historical consolidated balance sheets and related audited and unaudited statements of income, comprehensive income, shareholders’ equity and cash flows of the Company and other historical financial information regarding the Company and its Subsidiaries, in either case required to be provided to the Financing Sources by the terms of any commitment letter or agreement entered into with any Financing Source, (By) audited consolidated balance sheets and related audited statements none of income, comprehensive income, shareholders’ equity and cash flows of the Company for each of the three fiscal years most recently ended more than 90 days prior to the Closing Date, and unaudited consolidated balance sheets and related unaudited statements of income, comprehensive income, shareholders’ equity and cash flows of the Company for each subsequent fiscal quarter ended more than 45 days prior to the Closing Date, all such audited and unaudited statements complying with the requirements of Form F-4 for persons being acquired and Regulation S-X under the Securities Act for a non-issuer entity whose financial statements are filed in a registered offering of securities solely to satisfy Rule 3-05 of Regulation S-X, without giving effect to Rule 3-05(b)(4) of Regulation S-X (clauses (A) and (B), collectively, the “Required Financial Information”) and (C) such other historical financial and other information regarding the Company and its Subsidiaries as Parent may reasonably request;
(ii) as promptly as reasonably practicable, and in any event no later than the Delivery Deadline, provide Parent and the Financing Sources with such information (financial or otherwise) relating to the Company and its Subsidiaries (including information to be used in the preparation of an information package regarding the business, operations and financial condition of Parent and the Company) reasonably necessary for Parent’s preparation of customary offering or information documents to be used for the completion of the Debt Financing;
(iii) cooperate and assist with the reasonable due diligence, rating agency processes and syndication and marketing efforts of Parent, its Representatives and the Financing Sources, including participating in a reasonable number of meetings (including one-on-one meetings with representatives of the Financing Sources, prospective lenders and prospective investors, on the one hand, and senior management and Representatives of the Company, in each case with appropriate seniority and expertise, on the other hand), due diligence sessions (including accounting due diligence sessions), drafting sessions and road shows, at reasonable times and on reasonable notice; provided that the Company and its Representatives will only be required to travel or attend any in person meetings for a period not to exceed five Business Days and each such Representative shall be reasonably compensated for his or her reasonable costs and expenses;
(iv) assist Parent in preparing customary offering memoranda, rating agency presentations, lender and investor presentations, confidential information memoranda, private placement memoranda, prospectuses, filings with the SEC and other similar documents prepared in connection with the Debt Financing, including delivery and consenting to the inclusion or incorporation of the Required Financial Information and all other historical financial and other information regarding the Company and its Subsidiaries reasonably requested by Parent for use in any offering or information documents to be prepared in connection with the Debt Financing;
(v) make available, on a customary and reasonable basis and upon reasonable notice, appropriate personnel, including Representatives of the Company and its Subsidiaries, documents and information relating to the Company and its Subsidiaries, in each case, as may be reasonably requested by Parent, the Financing Sources, or as may be requested by the SEC in connection with the completion of the Debt Financing;
(vi) provide to Parent and the Financing Sources promptly, and in any event at least five Business Days prior to the Closing Date, all documentation and other information about the Company and its Affiliates requested in writing by Parent and required by the Financing Sources or regulatory authorities with respect to the Debt Financing under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act;
(vii) (A) request customary comfort letters from the Company’s independent registered public accounting firm (including customary “negative assurances”), (B) request the Company’s independent registered public accounting firm to consent to the inclusion or incorporation of their audit reports with respect to the Required Financial Information in any filing or registration statement of Parent with the SEC or any prospectus, offering memoranda, private placement memoranda, marketing material or similar documentation, including by providing customary representation letters, and (C) request the Company’s independent registered public accounting firm to reasonably cooperate with Parent and its Representatives, including by participating in accounting due diligence sessions at times and at locations reasonably acceptable to the Company and its independent registered public accounting firm;
(viii) subject to customary confidentiality provisions, provide customary authorization letters (in a form and on terms reasonably acceptable to the Company) to the Financing Sources authorizing the distribution of information to prospective lenders or investors, including, if requested, containing a representation to the Financing Sources that the public side versions of such documents, if any, do not include material non-public information about the Company or its Affiliates;
(ix) deliver notices of prepayment and/or notices for termination of commitments within the time periods required by the Credit Agreement and obtain payoff letters, lien terminations and releases and instruments of discharge, all in customary form, to be delivered at Closing providing for the payoff in full on the Closing Date of any amounts due under the Credit Agreement and for the termination of all obligations thereunder (other than other such obligations under the Credit Agreement that expressly by their terms survive such payoff, discharge and termination) and releasing, discharging and terminating any liens and other security interests created under any security documents in connection with the Credit Agreement and all related obligations thereunder and under each security documents (other than obligations under such security documents that expressly by their terms survive such payoff, discharge and termination);
(x) assisting in the preparation of, and executing and delivering, one or more credit agreements, unsecured notes, indentures and other definitive financing documents or other customary certificates (but not solvency certificates) and customary documents as may be reasonably requested by Parent which are necessary and customary in connection with the Debt Financing (which agreements, notes, indentures and other documents to which the Company is a party will be conditioned on the consummation of the Transactions);
(xi) consent to the use of the trademarks, service marks and logos of the Company or any of its Subsidiaries in connection with the Debt Financing; provided that such trademarks, service marks and logos are used solely in a manner that is not intended to or is not reasonably likely to harm or disparage the Company or any of its Subsidiaries; and
(xii) taking all other corporate actions, subject to the occurrence of the Closing, as may be reasonably necessary to permit the consummation of the Debt Financing. Notwithstanding the foregoing, (1) neither the Company nor any of its Subsidiaries shall be required to pay any fees, expenses commitment or costs or incur any liability or obligations other similar fee prior to the Effective Time in connection with the Debt Financing, unless Parent reimburses Financing or is required incur or assume any other liability or obligation prior to indemnify the Company and its Subsidiaries Effective Time pursuant to this Agreement the Debt Commitment Letters or otherwise, the definitive documentation relating to the Debt Financing and (2z) none of the Company, its Subsidiaries or and their respective officers, directors or directors, employees shall be required to authorize, execute or enter into or perform under any agreement (other than the authorization and representation letters contemplated above) or adopt any resolution or otherwise take any corporate or similar action with respect to the Debt Financing that is not contingent upon the Closing occurring or that would be effective prior to the Effective Time it being understood that Persons who are the general partners, members of the board of directors, managing members, or other equivalent governing body(ies) of the Company and its Subsidiaries prior to the Effective Time in their capacity as such shall not be required to pass resolutions or consents to approve or authorize the execution of the Debt Financing). The Company hereby consents to the use of its and its Subsidiaries’ logos in connection with the Debt Financing; provided that such logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage the Company or its Subsidiaries. Notwithstanding anything to the contrary provided in the Confidentiality Agreement or herein, Buyer and its Affiliates and its and their Representatives shall be permitted to disclose information about the Company and its Subsidiaries as necessary and consistent with customary practices in connection with the Debt Financing subject to customary confidentiality arrangements.
(other than authorization letters contemplated by Section 6.05(a)(viii)), (3b) none None of the Company, its Subsidiaries or and its and their respective officers, directors or employees directors, employees, accountants, consultants, legal counsel, agents and other Representatives shall be required to deliver bear any certificate that out-of-pocket cost or expense (except to the extent such Person reasonably believesis promptly reimbursed) or provide or agree to provide prior to the Effective Time any indemnity in connection with the Debt Financing contemplated by the Debt Commitment Letter or their performance of their respective obligations under this Section 8.12. If this Agreement is terminated for any reason (such that the Closing does not occur), in good faith, contains any untrue certifications or opinions, (i) Buyer shall indemnify and (4) none of hold harmless the Company, its Subsidiaries or and its and their respective officers, directors directors, employees, accountants, consultants, legal counsel, agents and other Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or employees shall be required to provide any information incurred by them in connection with the disclosure arrangement of which is prohibited or restricted the Debt Financing and the performance of their respective obligations under Applicable Law or this Section 8.12 (other than in respect of the Company’s organizational documents or which is legally privileged or which is otherwise subject to the confidentiality provisions.
(b) The Company shall provide preparation of the Required Financial InformationInformation and other than to the extent arising from the gross negligence or willful misconduct of the Company, together any of its Subsidiaries, or any of their respective officers, directors, employees, accountants, consultants, legal counsel, agents or other Representatives), and any information utilized in connection therewith (other than information (other than projections and other forward-looking statements) related to the Company or its Subsidiaries provided by or on behalf of the Company or its Subsidiaries in writing specifically for use in connection with the other information required under Section 6.05(a), to Parent in a manner that does not contain any untrue statement of a material fact or omit to state a material fact necessary to make such information, in light of the circumstances under which the statements contained in such information were made, not misleading. The Company shall notify Parent in writing if the Company determines that (iDebt Financing) any untrue statement of a material fact or omission of any material fact necessary to make such information, in light of the circumstances under which the statements contained in such information were made, not misleading exists with regard to any such information, and (ii) any Required Financial Information must be restated or (iii) the Company’s independent registered public accounting firm has withdrawn any audit opinion with respect to any financial statements contained in the Required Financial Information.
(c) Parent Buyer shall, promptly upon written request by of the Company, reimburse the Company and its Subsidiaries for all reasonable and documented out-of-pocket costs and expenses (including reasonable and documented attorneys’ fees) incurred by the Company or any its Subsidiaries (including those of its Subsidiaries accountants, consultants, legal counsel, agents and other Representatives) in satisfying its obligations under connection with the cooperation required by this Section 6.058.12. ParentFor the avoidance of doubt, HoldCo the parties hereto acknowledge and Merger Sub shall, on a joint and several basis, indemnify and hold harmless agree that the provisions contained in this Section 8.12 represent the sole obligation of the Company and its Subsidiaries and its and their respective Representatives (each an “Indemnified Party”) from and against any and all lossesofficers, claimsdirectors, damagesemployees, liabilitiesaccountants, costsconsultants, reasonable attorneys’ feeslegal counsel, judgments, fines, penalties and amounts (including amounts paid in settlement and all interest, assessments agents and other charges paid or payable in connection Representatives with or in respect of any thereof), joint or several, to which such Indemnified Party may become subject, under the Securities Act, the Exchange Act, other Federal or state statutory or other laws or regulations or otherwise, insofar as such losses, claims, damages, liabilities costs, reasonable attorney’s fees, judgements fines, penalties, and amounts paid in settlement (or actions in respect thereof) arise out of or are based upon or suffered or incurred in connection with any action taken (or failure to act) by the Financing Sources, Parent, its Subsidiaries, or any of their respective Affiliates or the Company, any of its Subsidiaries or any of their respective Representatives pursuant to this Section 6.05 (other than the use of any information provided by the Company, any of its Subsidiaries or any of their respective Representatives in writing for use cooperation in connection with the arrangement of the Debt Financing), except to the extent such losses, claims, damages, liabilities, costs, reasonable attorneys’ fees, judgments, fines, penalties and amounts paid in settlement are determined by a final non-appealable judgment of a court of competent jurisdiction to have arisen out of, or resulted from, the gross negligence or willful misconduct of, or a Willful Breach by, the Company, any of its Subsidiaries or any of their respective Representatives.
Appears in 1 contract
Samples: Transaction Agreement (Vantiv, Inc.)
Financing Assistance. (a) The Prior to the Closing, the Company shall, and shall cause its Subsidiaries to, and shall to use its and their commercially reasonable efforts to cause each of their respective Representatives (including legal, tax, regulatory and accounting advisors) to, provide such cooperation as may be reasonably requested by Parent in connection with the arrangement of the Debt Financing (which term shall include, for purposes of this Section 6.03Cal, any of the permanent financing referred to in the Debt Commitment Letters) (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries). Without limiting the generality of the foregoing sentence, which cooperation prior to the Closing, the Company shall, and shall cause its Subsidiaries to the extent requested, include:
use its and their commercially reasonable efforts to: (i) as promptly as reasonably practicable and in any event no later than the tenth Business Day preceding the Closing Date (such date, the “Delivery Deadline”) provide Parent and the Financing Sources with (A) all historical consolidated balance sheets and related audited and unaudited statements of income, comprehensive income, shareholders’ equity and cash flows of the Company and other historical financial information regarding the Company and its Subsidiaries, in either case required to be provided to the Financing Sources by the terms of any commitment letter or agreement entered into with any Financing Source, (B) audited consolidated balance sheets and related audited statements of income, comprehensive income, shareholders’ equity and cash flows of the Company for each of the three fiscal years most recently ended more than 90 days prior to the Closing Date, and unaudited consolidated balance sheets and related unaudited statements of income, comprehensive income, shareholders’ equity and cash flows of the Company for each subsequent fiscal quarter ended more than 45 days prior to the Closing Date, all such audited and unaudited statements complying with the requirements of Form F-4 for persons being acquired and Regulation S-X under the Securities Act for a non-issuer entity whose financial statements are filed in a registered offering of securities solely to satisfy Rule 3-05 of Regulation S-X, without giving effect to Rule 3-05(b)(4) of Regulation S-X (clauses (A) and (B), collectively, the “Required Financial Information”) and (C) such other historical financial and other information regarding the Company and its Subsidiaries as Parent may reasonably request;
(ii) as promptly as reasonably practicable, and in any event no later than the Delivery Deadline, provide Parent and the Financing Sources with such information (financial or otherwise) relating to the Company to Parent and its Subsidiaries to the Financing Sources (including information to be used in the preparation of an information package regarding the business, operations operations, financial condition, financial projections and financial condition prospects of Parent and the Company) Company customary or reasonably necessary for the completion of such financing) to the extent reasonably requested by Parent in connection with Parent’s 's preparation of customary offering or information documents to be used for the completion of the Debt Financing;
, (iiiii) cooperate and assist with the reasonable due diligence, rating agency processes and syndication and marketing efforts of Parent, its Representatives and the Financing Sources, including participating in a reasonable number of meetings (including one-on-one meetings with representatives of the Financing Sources, prospective lenders and prospective investors, on the one hand, and senior management and Representatives of the Company, in each case with appropriate seniority and expertise, on the other hand)meetings, due diligence sessions (including accounting due diligence sessions), drafting di I igence sessions and road shows, at reasonable times and on reasonable notice; provided that at locations reasonably acceptable to the Company and its Representatives will only be required to travel or attend any in person meetings for a period not to exceed five Business Days and each such Representative shall be Company, (iii) reasonably compensated for his or her reasonable costs and expenses;
(iv) assist Parent in preparing customary offering memoranda, rating agency presentations, lender and investor presentations, confidential information memoranda, financial statements, private placement memoranda, prospectuses, filings with the SEC and other similar documents prepared in connection with the Debt Financingdocuments, including delivery and consenting to the inclusion or incorporation in any SEC filing related to the Debt Financing or the Alternative Financing of(A) audited consolidated balance sheets and related audited statements of income, comprehensive income, shareholders' equity and cash flows of the Required Financial Information Company for each of the three fiscal years most recently ended more than 60 days prior to the Closing Date (and audit reports for such financial statements shall not be subject to any "going concern" qualifications), (B) unaudited consolidated balance sheets and related unaudited statements of income, comprehensive income, shareholders' equity and cash flows of the Company for each subsequent fiscal quarter ended more than 40 days prior to the Closing Date and (C) all other historical financial and other information regarding the Company reasonably necessary to permit Parent to prepare proforma financial statements customary for the bank financing and its Subsidiaries reasonably requested the debt securities offering contemplated by Parent for use in any offering or information documents to be prepared in connection with the Debt Financing or the Alternative Financing;
, (viv) make available, on a customary and reasonable basis and upon reasonable notice, appropriate personnel, including Representatives of the Company and its Subsidiaries, documents and information relating to the Company and its Subsidiaries, in each case, as may be reasonably requested by Parent, the Financing Sources, or as may be requested by the SEC in connection with the completion of the Debt Financing;
financing, (viv) provide to Parent and the Financing Sources promptly, and in any event at least five (5) Business Days prior to the Closing Date, all documentation and other information about the Company and its Affiliates requested in writing by Parent and required by the Financing Sources or regulatory authorities with respect to the Debt Financing under applicable “"know your customer” " and anti-money laundering rules and regulations, including the PATRIOT Act;
, that is required under the Debt Commitment Letters to the extent such documentation and other information is requested in writing to the Company at least I 0 Business Days prior to the Closing Date, (vi) obtain any necessary consents from the Company's independent public accounting firm in connection with any filings with the SEC, (vii) in connection with any securities offering contemplated as part of the Debt Financing or the Alternative Financing, (A) request obtain customary comfort letters from the Company’s 's independent registered public accounting firm (including customary “negative assurances”)firm, (B) request cause the Company’s 's independent registered public accounting firm to consent to the inclusion or incorporation of their audit reports with respect to the Required Financial Information financial statements of the Company provided pursuant to Section 6.03(a)(iii) in any filing or registration statement of Parent with the SEC or any prospectus, offering memoranda, private placement memoranda, marketing material or similar documentation, including by providing customary representation letters, letters and (C) request cause the Company’s 's independent registered public accounting firm to reasonably cooperate with Parent and its Representatives, including by participating in accounting due diligence sessions at times and at locations reasonably acceptable to the Company and its independent registered public accounting firm;
firn1, (viii) subject to customary confidentiality provisions, provide customary authorization letters (in a form and on terms reasonably acceptable to the Company) to the Financing Sources authorizing the distribution of information to prospective lenders or investors, including, if requested, containing a representation to the Financing Sources that the public side versions of such documents, if any, do not include material non-public information about the Company or its Affiliates;
(ix) deliver notices of prepayment and/or notices for termination of commitments within the time periods required by the Credit Agreement and obtain customary payoff letters, lien terminations and releases letters and instruments of discharge, all in customary form, discharge to be delivered at Closing providing to allow for the payoff payoff, discharge and termination in full on the Closing Date of any amounts due under the Credit Agreement and for the termination of all obligations thereunder (other than other such obligations under the Credit Agreement that expressly by their terms survive such payoffAgreement, discharge and termination) and releasing, discharging and terminating any liens and other security interests created under any security documents in connection with the Credit Agreement and all related obligations thereunder and under each security documents (other than obligations under such security documents that expressly by their terms survive such payoff, discharge and termination);
(x) assisting in reasonably assist with the preparation ofof the definitive documentation for the Debt Financing, including by providing information reasonably necessary for the completion of any schedules thereto, in each case to the • extent, and executing solely to the extent, such materials relate to information concerning the Company and deliveringits Subsidiaries, one (xi) provide or more credit agreementscause to be provided any customary certificates, unsecured notes, indentures and other definitive financing documents or other customary certificates (but not solvency certificates) and customary closing documents as may reasonably be reasonably requested by Parent which are necessary and customary in connection with the Debt Financing and the Alternative Financing and (which agreements, notes, indentures and other documents to which the Company is a party will be conditioned on the consummation of the Transactions);
(xixii) consent to the use of the trademarks, service marks and logos of the Company or any of its Subsidiaries in connection with the Debt Financing; Financing; provided that such trademarks, . service marks and logos are arc used solely in a manner that is not intended to or is not reasonably likely to harm or disparage the Company or any of its Subsidiaries; and
(xii) taking all other corporate actions, subject to the occurrence of the Closing, as may be reasonably necessary to permit the consummation of the Debt Financing. Notwithstanding the foregoing, (1I) neither the Company nor any of its Subsidiaries shall be required to pay any fees, expenses commitment or costs other similar fee or incur prior to the Closing any other liability or obligations obligation in connection with the Debt Financing, unless Parent reimburses or is required to reimburse or indemnify the Company and its Subsidiaries pursuant to this Agreement or otherwiseotherwise agrees to do so, (2) none of the Company, its Subsidiaries or their respective officers, directors or employees shall be required to execute or enter into or perform under any agreement with respect to the Debt Financing that is not contingent upon the Closing occurring or that would be effective prior to the Effective Time Closing (other than authorization letters contemplated by clause (viii) of this Section 6.05(a)(viii)6.03(a) and for the avoidance of doubt, the boards of directors or other equivalent governing bodies of Parent, Merger Sub, and/or the Surviving Corporation shall enter into or provide any resolutions. consents. approvals or other closing arrangements on behalf of the Company and its Subsidiaries as may be required by the Financing Sources pursuant to the Debt Commitment Letter at, or as of, the Closing), and (3) none nothing shall obligate the Company or any of its Subsidiaries to provide, or cause to be provided, any legal opinion by its counsel, or to provide, or cause to be provided, any information or take, or cause to be taken, any action to the extent it would reasonably be expected. in the reasonable judgment of the Company, its Subsidiaries or their respective officers, directors or employees shall be required to deliver any certificate that such Person reasonably believes, result in good faith, contains any untrue certifications or opinions, and (4) none a violation of the Company, its Subsidiaries or their respective officers, directors or employees shall be required to provide any information the disclosure of which is prohibited or restricted under Applicable Law or the Company’s organizational documents or which is legally privileged or which is otherwise subject to the confidentiality provisionsloss of any privilege.
(b) The Company shall provide the Required Financial Information, together with the other information required under Section 6.05(a), to Parent in a manner that does not contain any untrue statement of a material fact or omit to state a material fact necessary to make such information, in light of the circumstances under which the statements contained in such information were made, not misleading. The Company shall notify Parent in writing if the Company determines that (i) any untrue statement of a material fact or omission of any material fact necessary to make such information, in light of the circumstances under which the statements contained in such information were made, not misleading exists with regard to any such information, (ii) any Required Financial Information must be restated or (iii) the Company’s independent registered public accounting firm has withdrawn any audit opinion with respect to any financial statements contained in the Required Financial Information.
(c) Parent shall, promptly upon written request by the Company, reimburse the Company for all reasonable and documented out-of-pocket pockt.:t costs and expenses (including reasonable and documented attorneys’ · fees) incurred by the Company or any of its Subsidiaries in satisfying its obligations under this Section 6.056.03. Parent, HoldCo Parent and Merger Sub shall, on a joint and several basis, indemnify and hold harmless the Company and its Subsidiaries and their respective Representatives (each an “Indemnified Party”) from and against any and all losses, claims, damages, . liabilities, costs, . reasonable attorneys’ ' fees, judgments, fines, penalties and amounts (including amounts paid in settlement and (including all interest, assessments and other charges paid or payable in connection with or in respect of any thereof), joint or several, to which such Indemnified Party may become subject, under the Securities Act, the Exchange Act, other Federal or state statutory or other laws or regulations or otherwise, insofar as such losses, claims, damages, liabilities costs, reasonable attorney’s fees, judgements fines, penalties, and amounts paid in settlement (or actions in respect thereof) arise out of or are based upon or suffered or incurred in connection with any action taken (or failure to act) by the Financing Sources, Parent, its Subsidiaries, or any of their respective Affiliates or the Company, any of its Subsidiaries or any of their respective Representatives pursuant to this Section 6.05 6.03 (other than the use of any information provided by the Company, . any of its Subsidiaries or any of their respective Representatives in writing for use in connection with the Debt Financing), except to in the extent event such losses, claims, . damages, liabilities, . costs, reasonable attorneys’ ' fees, judgments, fines, penalties and amounts paid in settlement are arc determined by a final non-appealable appcalable judgment of a court of competent jurisdiction to have arisen out of, or resulted from, the gross negligence or willful misconduct of, or a Willful Breach by, of the Company, . any of its Subsidiaries or any of their respective Representatives.
Appears in 1 contract
Samples: Merger Agreement
Financing Assistance. (a) The Company shallPrior to the Closing, Seller and the ProjectCos shall use Commercially Reasonable Efforts to provide, and shall to cause its Subsidiaries totheir respective representatives to provide, and shall use its commercially such reasonable cooperation with Buyer’s efforts to cause each obtain tax equity financing, the proceeds of their respective Representatives which tax equity financing, or a portion thereof, will be used by Buyer to fund all or a portion of the Adjusted Purchase Price payable on the Closing Date (including legalthe “Financing”) including: (i) furnishing to representatives of the providers or sources of the Financing such information, taxbooks and records, regulatory and accounting advisors) to, provide such cooperation other documentation as may be reasonably requested by Parent in connection with the Debt Financing (provided that such cooperation does not unreasonably interfere with the ongoing operations of the Company Buyer and its Subsidiaries), which cooperation shall, providing reasonable access to the extent requestedProjects, include:
(i) as promptly as reasonably practicable and in any event no later than the tenth Business Day preceding the Closing Date (such date, the “Delivery Deadline”) provide Parent and the Financing Sources with (A) all historical consolidated balance sheets and related audited and unaudited statements of income, comprehensive income, shareholders’ equity and cash flows of the Company and other historical financial information regarding the Company and its Subsidiaries, in either case required to be provided to the Financing Sources by the terms of any commitment letter or agreement entered into with any Financing Source, (B) audited consolidated balance sheets and related audited statements of income, comprehensive income, shareholders’ equity and cash flows of the Company for each of the three fiscal years most recently ended more than 90 days prior to the Closing Date, and unaudited consolidated balance sheets and related unaudited statements of income, comprehensive income, shareholders’ equity and cash flows of the Company for each subsequent fiscal quarter ended more than 45 days prior to the Closing Date, all such audited and unaudited statements complying with the requirements of Form F-4 for persons being acquired and Regulation S-X under the Securities Act for a non-issuer entity whose financial statements are filed in a registered offering of securities solely to satisfy Rule 3-05 of Regulation S-X, without giving effect to Rule 3-05(b)(4) of Regulation S-X (clauses (A) and (B), collectively, the “Required Financial Information”) and (C) such other historical financial and other information regarding the Company and its Subsidiaries as Parent may reasonably request;
(ii) as promptly as reasonably practicablemaking Seller, and in any event no later than the Delivery Deadline, provide Parent and the Financing Sources with such information (financial ProjectCos or otherwise) relating to the Company and its Subsidiaries (including information to be used in the preparation of an information package regarding the business, operations and financial condition of Parent and the Company) reasonably necessary their respective representatives available on reasonable advance notice for Parent’s preparation of customary offering or information documents to be used for the completion of the Debt Financing;
(iii) cooperate and assist with the reasonable due diligence, rating agency processes and syndication and marketing efforts of Parent, its Representatives and the Financing Sources, including participating in a reasonable number of meetings (including one-on-one meetings telephonically or otherwise) with representatives rating agencies and the providers or sources of the Financing Sources, prospective lenders and prospective investors, on the one hand, and senior management and Representatives of the Company, in each case with appropriate seniority and expertise, on the other hand), due diligence sessions (including accounting due diligence sessions), drafting sessions and road shows, at reasonable times and on reasonable notice; provided that the Company and its Representatives will only be required to travel or attend any in person meetings for a period not to exceed five Business Days and each such Representative shall be reasonably compensated for his or her reasonable costs and expenses;
(iv) assist Parent in preparing customary offering memoranda, rating agency presentations, lender and investor presentations, confidential information memoranda, private placement memoranda, prospectuses, filings with the SEC and other similar documents prepared in connection with the Debt Financing, including delivery and consenting to the inclusion or incorporation of the Required Financial Information and all other historical financial and other information regarding the Company and its Subsidiaries reasonably requested by Parent for use in any offering or information documents to be prepared in connection with the Debt Financing;
(v) make available, on a customary and reasonable basis and upon reasonable notice, appropriate personnel, including Representatives of the Company and its Subsidiaries, documents and information relating to the Company and its Subsidiaries, in each case, as may at times and locations to be reasonably requested by Parent, the Financing Sources, or as may be requested mutually agreed by the SEC Parties and (iii) reasonably assisting Buyer in connection with the completion preparation of the Debt Financing;
(vi) provide to Parent and the Financing Sources promptly, and in any event at least five Business Days prior to the Closing Date, all documentation and other information about the Company and its Affiliates requested in writing by Parent and required by the Financing Sources or regulatory authorities with respect to the Debt Financing under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act;
(vii) (A) request customary comfort letters from the Company’s independent registered public accounting firm (including customary “negative assurances”), (B) request the Company’s independent registered public accounting firm to consent to the inclusion or incorporation of their audit reports with respect to the Required Financial Information in any filing or registration statement of Parent with the SEC or any prospectus, offering memoranda, private placement memoranda, marketing material or similar documentation, including by providing customary representation letters, and (C) request the Company’s independent registered public accounting firm to reasonably cooperate with Parent and its Representatives, including by participating in accounting due diligence sessions at times and at locations reasonably acceptable to the Company and its independent registered public accounting firm;
(viii) subject to customary confidentiality provisions, provide customary authorization letters (in a form and on terms reasonably acceptable to the Company) to the Financing Sources authorizing the distribution of information to prospective lenders or investors, including, if requested, containing a representation to the Financing Sources that the public side versions of such documents, if any, do not include material non-public information about the Company or its Affiliates;
(ix) deliver notices of prepayment and/or notices for termination of commitments within the time periods required by the Credit Agreement and obtain payoff letters, lien terminations and releases and instruments of discharge, all in customary form, to be delivered at Closing providing for the payoff in full on the Closing Date of any amounts due under the Credit Agreement and for the termination of all obligations thereunder (other than other such obligations under the Credit Agreement that expressly by their terms survive such payoff, discharge and termination) and releasing, discharging and terminating any liens memoranda and other security interests created under any security marketing documents in connection with the Credit Agreement Financing and all related obligations thereunder and under (B) rating agency presentations, in each security documents (other than obligations under such security documents that expressly by their terms survive such payoffcase, discharge and termination);
(x) assisting to the extent customary for tax equity transactions of the type specified in the preparation of, and executing and delivering, one or more credit agreements, unsecured notes, indentures and other definitive financing documents or other customary certificates (but not solvency certificates) and customary documents as may be reasonably requested by Parent which are necessary and customary in connection with documentation evidencing the Debt Financing (which agreements, notes, indentures and other documents to which the Company is a party will be conditioned on the consummation terms of the Transactions);
(xi) consent to the use of the trademarks, service marks and logos of the Company or any of its Subsidiaries in connection with the Debt Financing; provided that such trademarks, service marks and logos are used solely in a manner that is not intended to or is not reasonably likely to harm or disparage the Company or any of its Subsidiaries; and
(xii) taking all other corporate actions, subject to the occurrence of the Closing, as may be reasonably necessary to permit the consummation of the Debt Financing. Notwithstanding the foregoing, (1) neither the Company nor any of its Subsidiaries shall be required to pay any fees, expenses or costs or incur any liability or obligations in connection with the Debt Financing, unless Parent reimburses or is required to indemnify the Company and its Subsidiaries pursuant to this Agreement or otherwise, (2) none of the Company, its Subsidiaries or their respective officers, directors or employees shall be required to execute or enter into or perform under any agreement with respect to the Debt Financing that is not contingent upon the Closing occurring or that would be effective prior to the Effective Time (other than authorization letters contemplated by Section 6.05(a)(viii)), (3) none of the Company, its Subsidiaries or their respective officers, directors or employees shall be required to deliver any certificate that such Person reasonably believes, in good faith, contains any untrue certifications or opinions, and (4) none of the Company, its Subsidiaries or their respective officers, directors or employees shall be required to provide any information the disclosure of which is prohibited or restricted under Applicable Law or the Company’s organizational documents or which is legally privileged or which is otherwise subject to the confidentiality provisions.
(b) The Company Buyer shall provide use all commercially reasonable efforts to close the Required Financial InformationFinancing prior to December 31, together with 2018; provided, however, if such Financing is not achieved by such date, Buyer shall continue to use all commercially reasonable efforts to close the other information required under Section 6.05(a), to Parent in a manner that does not contain any untrue statement of a material fact or omit to state a material fact necessary to make such information, in light of Financing by the circumstances under which the statements contained in such information were made, not misleading. The Company shall notify Parent in writing if the Company determines that (i) any untrue statement of a material fact or omission of any material fact necessary to make such information, in light of the circumstances under which the statements contained in such information were made, not misleading exists with regard to any such information, (ii) any Required Financial Information must be restated or (iii) the Company’s independent registered public accounting firm has withdrawn any audit opinion with respect to any financial statements contained in the Required Financial InformationLong Stop Date.
(c) Parent shallSeller shall not be required to incur any liabilities in connection with this Section 5.14 to the Financing parties or, promptly upon written request by except for Buyer pursuant to this Agreement, any other Person. Seller’s provision of information and limited access to the CompanyFinancing parties shall in no way change, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses (including reasonable and documented attorneys’ fees) incurred by the Company alter or negate, or be deemed to change, alter or negate, Sections 4.9, 9.3 or any of its Subsidiaries in satisfying its obligations under the other provisions of this Section 6.05. Parent, HoldCo and Merger Sub shall, on a joint and several basis, indemnify and hold harmless the Company and its Subsidiaries and their respective Representatives (each an “Indemnified Party”) from and against Agreement or create any and all losses, claims, damages, liabilities, costs, reasonable attorneys’ fees, judgments, fines, penalties and amounts (including amounts paid in settlement and all interest, assessments and other charges paid or payable in connection with or in respect cause of any thereof), joint or several, to which such Indemnified Party may become subject, under the Securities Act, the Exchange Act, other Federal or state statutory or other laws or regulations or otherwise, insofar as such losses, claims, damages, liabilities costs, reasonable attorney’s fees, judgements fines, penalties, and amounts paid in settlement (or actions in respect thereof) arise out of or are based upon or suffered or incurred in connection with any action taken (or failure to act) by the Financing Sourcesparties, Parentrating agencies or, its Subsidiaries, or any of their respective Affiliates or the Companyexcept for Buyer pursuant to this Agreement, any of its Subsidiaries other Person, and any information, data or any of their respective Representatives statements provided pursuant to this Section 6.05 5.14 shall be deemed provided on an “AS IS, WHERE IS, WITH ALL FAULTS” BASIS, AND SELLER MAKES NO (other than the use of any information provided by the CompanyAND EXPRESSLY DISCLAIMS ANY) REPRESENTATION OR WARRANTY, any of its Subsidiaries or any of their respective Representatives in writing for use in connection with the Debt Financing)EXPRESSED, except to the extent such lossesIMPLIED OR STATUTORY, claimsREGARDING THE INFORMATION, damages, liabilities, costs, reasonable attorneys’ fees, judgments, fines, penalties and amounts paid in settlement are determined by a final non-appealable judgment of a court of competent jurisdiction to have arisen out of, or resulted from, the gross negligence or willful misconduct of, or a Willful Breach by, the Company, any of its Subsidiaries or any of their respective RepresentativesDATA OR STATEMENTS PROVIDED BY SELLER OR ITS PERSONNEL PURSUANT TO THIS SECTION 5.14.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (New Jersey Resources Corp)
Financing Assistance. (a) The Company From the date of this Agreement until the Effective Time, MUSA and its subsidiaries shall, and shall cause its Subsidiaries to, and shall use its commercially their reasonable best efforts to cause each of their respective Representatives (including legalofficers, taxdirectors, regulatory employees, advisors, attorneys, accountants and accounting advisors) representatives to, provide such all cooperation as may be reasonably requested by Parent in connection with the Debt arrangement of the Financing (provided that such cooperation does not unreasonably interfere with or the ongoing operations arrangement of the Company and its Subsidiariesalternative financing, if any, contemplated by Section 5.2(b)), which cooperation shall, to the extent requested, include:
including (i) as promptly as reasonably practicable and in any event no later than the tenth Business Day preceding the Closing Date (such date, the “Delivery Deadline”) provide Parent and the Financing Sources with using reasonable best efforts to (A) all historical consolidated balance sheets cause appropriate officers and related audited and unaudited statements of income, comprehensive income, shareholders’ equity and cash flows of the Company and other historical financial information regarding the Company and its Subsidiaries, in either case required employees to be provided to the Financing Sources by the terms of any commitment letter or agreement entered into with any Financing Source, (B) audited consolidated balance sheets and related audited statements of income, comprehensive income, shareholders’ equity and cash flows of the Company for each of the three fiscal years most recently ended more than 90 days prior to the Closing Date, and unaudited consolidated balance sheets and related unaudited statements of income, comprehensive income, shareholders’ equity and cash flows of the Company for each subsequent fiscal quarter ended more than 45 days prior to the Closing Date, all such audited and unaudited statements complying with the requirements of Form F-4 for persons being acquired and Regulation S-X under the Securities Act for a non-issuer entity whose financial statements are filed in a registered offering of securities solely to satisfy Rule 3-05 of Regulation S-X, without giving effect to Rule 3-05(b)(4) of Regulation S-X (clauses (A) and (B), collectively, the “Required Financial Information”) and (C) such other historical financial and other information regarding the Company and its Subsidiaries as Parent may reasonably request;
(ii) as promptly as reasonably practicable, and in any event no later than the Delivery Deadline, provide Parent and the Financing Sources with such information (financial or otherwise) relating to the Company and its Subsidiaries (including information to be used in the preparation of an information package regarding the business, operations and financial condition of Parent and the Company) reasonably necessary for Parent’s preparation of customary offering or information documents to be used for the completion of the Debt Financing;
(iii) cooperate and assist with the reasonable due diligence, rating agency processes and syndication and marketing efforts of Parent, its Representatives and the Financing Sources, including participating in a reasonable number of meetings (including one-on-one meetings with representatives of the Financing Sources, prospective lenders and prospective investors, on the one hand, and senior management and Representatives of the Company, in each case with appropriate seniority and expertise, on the other hand), due diligence sessions (including accounting due diligence sessions), drafting sessions and road shows, at reasonable times and on reasonable notice; provided that the Company and its Representatives will only be required to travel or attend any in person meetings for a period not to exceed five Business Days and each such Representative shall be reasonably compensated for his or her reasonable costs and expenses;
(iv) assist Parent in preparing customary offering memoranda, rating agency presentations, lender and investor presentations, confidential information memoranda, private placement memoranda, prospectuses, filings with the SEC and other similar documents prepared in connection with the Debt Financing, including delivery and consenting to the inclusion or incorporation of the Required Financial Information and all other historical financial and other information regarding the Company and its Subsidiaries reasonably requested by Parent for use in any offering or information documents to be prepared in connection with the Debt Financing;
(v) make available, on a customary and reasonable basis and upon on reasonable advance notice, appropriate personnelto meet with prospective lenders and investors in meetings, presentations, road shows and due diligence sessions, (B) assist with the preparation of disclosure documents in connection therewith, (C) cause its independent accountants to provide reasonable assistance to Parent, including Representatives providing consent to Parent to prepare and use their audit reports and SAS 100 reviews relating to MUSA and its subsidiaries and to provide any necessary “comfort letters” and (D) cause its attorneys to provide reasonable assistance to Parent, including to provide any necessary and customary legal opinions and (ii) executing and delivering any commitment letters, underwriting or placement agreements, registration statements, pledge and security documents, other definitive financing documents, or other requested certificates or documents, including allowing for a certificate of the Company and its Subsidiarieschief financial officer of MUSA with respect to solvency or other matters; provided that none of the letters, agreements, registration statements, documents and information relating to the Company certificates referenced in clause (ii) above shall be executed and its Subsidiaries, in each case, as may be reasonably requested by Parent, the Financing Sources, or as may be requested by the SEC delivered except in connection with the completion of the Debt Financing;
Closing (vi) provide to Parent and the Financing Sources promptly, and in any event at least five Business Days prior to the Closing Date, all documentation and other information about the Company and its Affiliates requested in writing by Parent and required by the Financing Sources or regulatory authorities with respect to the Debt Financing under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act;
(vii) (A) request customary comfort letters from the Company’s independent registered public accounting firm (including customary “negative assurances”), (B) request the Company’s independent registered public accounting firm to consent to the inclusion or incorporation of their audit reports with respect to the Required Financial Information in any filing or registration statement of Parent with the SEC or any prospectus, offering memoranda, private placement memoranda, marketing material or similar documentation, including by providing customary representation letters, and (C) request the Company’s independent registered public accounting firm to reasonably cooperate with Parent and its Representatives, including by participating in accounting due diligence sessions at times and at locations reasonably acceptable to the Company and its independent registered public accounting firm;
(viii) subject to customary confidentiality provisions, provide customary authorization letters (in a form and on terms reasonably acceptable to the Company) to the Financing Sources authorizing the distribution of information to prospective lenders or investors, including, if requested, containing a representation to the Financing Sources that the public side versions of such documents, if any, do not include material non-public information about the Company or its Affiliates;
(ix) deliver notices of prepayment and/or notices for termination of commitments within the time periods required by the Credit Agreement and obtain payoff letters, lien terminations and releases and instruments of discharge, all in customary form, to be delivered at Closing providing for the payoff in full on the Closing Date of any amounts due under the Credit Agreement and for the termination of all obligations thereunder (other than other such obligations under the Credit Agreement that expressly by their terms survive such payoff, discharge and termination) and releasing, discharging and terminating any liens and other security interests created under any security documents in connection with the Credit Agreement and all related obligations thereunder and under each security documents (other than obligations under such security documents that expressly by their terms survive such payoff, discharge and termination);
(x) assisting in the preparation of, and executing and delivering, one or more credit agreements, unsecured notes, indentures and other definitive financing documents or other customary certificates (but not solvency certificates) and customary documents as may be reasonably requested by Parent which are necessary and customary in connection with the Debt Financing (which agreements, notes, indentures and other documents to which the Company is a party will effectiveness thereof shall be conditioned on the consummation of the Transactions);
(xi) consent to the use of the trademarks, service marks and logos of the Company or any of its Subsidiaries in connection with the Debt Financing; provided that such trademarks, service marks and logos are used solely in a manner that is not intended to or is not reasonably likely to harm or disparage the Company or any of its Subsidiaries; and
(xii) taking all other corporate actions, subject to upon the occurrence of the Closing); and provided, as may be reasonably necessary to permit the consummation of the Debt Financing. Notwithstanding the foregoingfurther, (1) neither the Company nor any of its Subsidiaries that MUSA shall be required to pay any fees, expenses or costs or incur any liability or obligations in connection with the Debt Financing, unless Parent reimburses or is required to indemnify the Company and its Subsidiaries pursuant to this Agreement or otherwise, (2) none of the Company, its Subsidiaries or their respective officers, directors or employees shall be required to execute or enter into or perform under any agreement with respect to the Debt Financing that is not contingent upon the Closing occurring or that would be effective prior to the Effective Time (other than authorization letters contemplated by Section 6.05(a)(viii)), (3) none of the Company, its Subsidiaries or their respective officers, directors or employees shall be required to deliver any certificate that such Person reasonably believes, in good faith, contains any untrue certifications or opinions, and (4) none of the Company, its Subsidiaries or their respective officers, directors or employees shall be required to provide any information the disclosure of such assistance which is prohibited or restricted under Applicable Law or the Company’s organizational documents or which is legally privileged or which is otherwise subject to the confidentiality provisions.
(b) The Company shall provide the Required Financial Information, together would interfere unreasonably and materially with the other information required under Section 6.05(a)business or operations of MUSA and its subsidiaries. Parent shall promptly, to Parent in a manner that does not contain any untrue statement of a material fact or omit to state a material fact necessary to make such information, in light of the circumstances under which the statements contained in such information were made, not misleading. The Company shall notify Parent in writing if the Company determines that (i) any untrue statement of a material fact or omission of any material fact necessary to make such information, in light of the circumstances under which the statements contained in such information were made, not misleading exists with regard to any such information, (ii) any Required Financial Information must be restated or (iii) the Company’s independent registered public accounting firm has withdrawn any audit opinion with respect to any financial statements contained in the Required Financial Information.
(c) Parent shall, promptly upon written request by the CompanyMUSA, reimburse the Company MUSA for all reasonable and documented out-of-pocket third party costs and expenses (including reasonable and documented attorneys’ fees) incurred by the Company MUSA or any of its Subsidiaries in satisfying its obligations under this Section 6.05. Parent, HoldCo and Merger Sub shall, on a joint and several basis, indemnify and hold harmless the Company and its Subsidiaries and their respective Representatives (each an “Indemnified Party”) from and against any and all losses, claims, damages, liabilities, costs, reasonable attorneys’ fees, judgments, fines, penalties and amounts (including amounts paid in settlement and all interest, assessments and other charges paid or payable subsidiaries in connection with or in respect of any thereof), joint or several, to which such Indemnified Party may become subject, under the Securities Act, the Exchange Act, other Federal or state statutory or other laws or regulations or otherwise, insofar as such losses, claims, damages, liabilities costs, reasonable attorney’s fees, judgements fines, penalties, and amounts paid in settlement (or actions in respect thereof) arise out of or are based upon or suffered or incurred in connection with any action taken (or failure to act) by the Financing Sources, Parent, its Subsidiaries, or any of their respective Affiliates or the Company, any of its Subsidiaries or any of their respective Representatives pursuant to this Section 6.05 (other than the use of any information provided by the Company, any of its Subsidiaries or any of their respective Representatives in writing for use in connection with the Debt Financing), except to the extent such losses, claims, damages, liabilities, costs, reasonable attorneys’ fees, judgments, fines, penalties and amounts paid in settlement are determined by a final non-appealable judgment of a court of competent jurisdiction to have arisen out of, or resulted from, the gross negligence or willful misconduct of, or a Willful Breach by, the Company, any of its Subsidiaries or any of their respective Representativescooperation.
Appears in 1 contract
Samples: Merger Agreement (Metals USA Plates & Shapes Southcentral, Inc.)
Financing Assistance. (a) The Prior to the Closing, the Company shall, and shall cause its Subsidiaries the other Acquired Companies to, and shall use its and their commercially reasonable efforts to cause each of their respective Representatives (including legal, tax, regulatory and accounting advisors) to, provide such cooperation as may be reasonably requested by Parent Buyer in connection with the arrangement of the Debt Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiariesthe other Acquired Companies), which cooperation shallshall consist of the Company using, and causing the other Acquired Companies to the extent requesteduse, include:
its and their commercially reasonable efforts to: (i) as promptly as reasonably practicable and in any event no later than the tenth Business Day preceding the Closing Date (such date, the “Delivery Deadline”) provide Parent and the Financing Sources with (A) all the historical consolidated balance sheets and related audited and unaudited financial statements of income, comprehensive income, shareholders’ equity and cash flows of the Company required to have been received by the Lead Arrangers (as defined in the Financing Commitment Letter as in effect on the date hereof) pursuant to, and subject to the terms of, Section 7(a) of Annex C of the Financing Commitment Letter (as in effect on the date hereof) and drafts of customary comfort letters (including “negative assurance” comfort) from the Acquired Companies’ independent accountants related thereto that such auditors would be prepared to issue at the time of pricing and issuance of the Notes (as defined in the Financing Commitment Letter as in effect on the date hereof); and (B) such other historical financial customary information regarding the Company and its Subsidiaries, in either case required to Subsidiaries as may be provided reasonably requested by Buyer to the Financing Sources by the terms of any commitment letter or agreement entered into with any Financing Source, (B) audited consolidated balance sheets and related audited statements of income, comprehensive income, shareholders’ equity and cash flows extent such information is of the Company type and form customarily included in a customary bank information memorandum or an offering memorandum for each private placements of the three fiscal years most recently ended more than 90 days prior non-convertible high yield bonds pursuant to the Closing Date, and unaudited consolidated balance sheets and related unaudited statements of income, comprehensive income, shareholders’ equity and cash flows of the Company for each subsequent fiscal quarter ended more than 45 days prior to the Closing Date, all such audited and unaudited statements complying with the requirements of Form F-4 for persons being acquired and Regulation S-X Rule 144A promulgated under the Securities Act for a non-issuer entity whose (provided, that such information shall not include financial statements are filed in a registered offering of securities solely to satisfy Rule or other information (including segment reporting and consolidating and other financial statements and data) required by Rules 3-05 of Regulation S-X05, without giving effect to Rule 3-05(b)(4) 09, 3-10 and 3-16 of Regulation S-X or Item 402 of Regulation S-K, information regarding executive compensation related to SEC Release Nos. 33-8732A, 34-54302A and IC-27444A (other than customary disclosure with respect to material related party transactions) or any other information customarily excluded for an offering memorandum for private placements of non-convertible high yield bonds pursuant to Rule 144A promulgated under the Securities Act) (clauses (A) and (B), collectivelytogether, the “Required Financial Information”) and (C) such other historical financial and other information regarding ); provided that, in no event shall the Required Information be deemed to include or shall the Company and otherwise be required to provide (x) pro forma financial statements or pro forma adjustments related to the Debt Financing or (y) financial statements of the Company or its Subsidiaries other than as Parent may reasonably request;
set forth in Section 7(a) of Annex C of the Financing Commitment Letter and as set forth above, (ii) as promptly as reasonably practicable, and in any event no later than the Delivery Deadline, provide Parent and the Financing Sources with such information (financial or otherwise) relating to the Company and its Subsidiaries (including information to be used in the preparation of an information package regarding the business, operations and financial condition of Parent and the Company) reasonably necessary for Parent’s preparation of customary offering or information documents to be used for the completion of the Debt Financing;
(iii) cooperate and assist with the reasonable due diligence, rating agency processes and syndication and marketing efforts of Parent, its Representatives and the Financing Sources, including participating in a reasonable number of meetings (including one-on-one meetings with representatives of the Financing Sources, prospective lenders and prospective investors, on the one hand, and senior management and Representatives of the Company, in each case with appropriate seniority and expertise, on the other hand), due diligence sessions (including accounting due diligence sessions), drafting sessions and road shows, at reasonable times and on reasonable notice; provided that the Company and its Representatives will only be required to travel or attend any in person meetings for a period not to exceed five Business Days and each such Representative shall be reasonably compensated for his or her reasonable costs and expenses;
(iv) assist Parent Buyer in preparing customary offering memoranda, rating agency presentations, lender and investor presentations, confidential information memoranda, memoranda and private placement memoranda, prospectuses, filings with the SEC and other similar documents prepared in connection with the Debt Financing, including delivery and consenting to the inclusion or incorporation of the Required Financial Information and all other historical financial and other information regarding the Company and its Subsidiaries reasonably requested by Parent for use in any offering or information documents to be prepared in connection with the Debt Financing;
(v) make available, on a customary and reasonable basis and upon reasonable notice, appropriate personnel, including Representatives of the Company and its Subsidiaries, documents and information relating to the Company and its Subsidiaries, in each case, as may be reasonably requested by Parent, the Financing Sources, or as may be requested by the SEC in connection with the completion of the Debt Financing;
(viiii) provide to Parent and the Financing Sources promptly, and in any event Buyer at least five four Business Days prior to the Closing Date, all documentation and other information about the Company and its Affiliates requested in writing by Parent and required by Section 8 of Annex C of the Financing Sources or regulatory authorities with respect to the Debt Financing Commitment Letter under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act;
, that is required to the extent such documentation and other information is requested in writing to the Company at least ten Business Days prior to the Closing Date, (viiiv) obtain any necessary approvals from the Company’s independent public accounting firm in connection with any offering document, (v) provide reasonable and customary access to the Acquired Companies’ books and records in accordance with Section 5.02 hereof, (vi) in connection with any securities offering contemplated as part of the Debt Financing, (A) request obtain customary comfort letters from the Company’s independent registered public accounting firm (including customary “negative assurances”), assurance” comfort) and (B) request cause the Company’s independent registered public accounting firm to consent agree to the inclusion or incorporation of their audit reports with respect to the Required Financial Information financial statements of the Company in any filing or registration statement of Parent with the SEC or any prospectus, offering memoranda, private placement memoranda, marketing material memoranda or similar documentation, including by providing customary representation letters, and (Cvii) request reasonably assist with the Company’s independent registered public accounting firm to reasonably cooperate with Parent and its Representativespreparation of the definitive documentation for the Debt Financing, including by participating providing information reasonably necessary for the completion of any schedules thereto, in accounting due diligence sessions at times each case to the extent, and at locations reasonably acceptable solely to the extent, such materials relate to information concerning the Company and its independent registered public accounting firm;
the other Acquired Companies, (viii) subject to customary confidentiality provisionsfacilitate the creation, provide customary authorization letters (in a form perfection and on terms reasonably acceptable to enforcement of security interests and liens securing the Company) to Debt Financing and otherwise facilitate the Financing Sources authorizing the distribution pledging of information to prospective lenders or investors, including, if requested, containing a representation to the Financing Sources that the public side versions of such documents, if any, do not include material non-public information about the Company or its Affiliates;
(ix) deliver notices of prepayment and/or notices for termination of commitments within the time periods required collateral owned by the Credit Agreement and obtain payoff lettersAcquired Companies, lien terminations and releases and instruments of discharge, all in customary form, to be delivered at Closing providing for the payoff in full on the Closing Date of any amounts due under the Credit Agreement and for the termination of all obligations thereunder (other than other such obligations under the Credit Agreement that expressly by their terms survive such payoff, discharge and termination) and releasing, discharging and terminating any liens and other security interests created under any security documents in connection with the Credit Agreement and all related obligations thereunder and under each security documents (other than obligations under such security documents that expressly by their terms survive such payoff, discharge and termination);
(x) assisting in the preparation of, and executing and delivering, one or more credit agreements, unsecured notes, indentures and other definitive financing documents or other customary certificates (but not solvency certificates) and customary documents as may be reasonably requested by Parent which are necessary and customary Buyer, in connection with the Debt Financing and (which agreements, notes, indentures and other documents to which the Company is a party will be conditioned on the consummation of the Transactions);
(xiix) consent to the use of the trademarks, service marks and logos of the Company or any of its Subsidiaries the other Acquired Companies in connection with the Debt Financing; Financing; provided that such trademarks, service marks and logos are used solely in a manner that is not intended to or is not reasonably likely to harm or disparage the Company or any of its Subsidiaries; and
(xii) taking all the other corporate actions, subject to the occurrence of the Closing, as may be reasonably necessary to permit the consummation of the Debt FinancingAcquired Companies. Notwithstanding the foregoing, (1) neither the Company nor any of its Subsidiaries the other Acquired Companies shall be required to pay any fees, expenses commitment or costs other similar fee or incur prior to the Closing any other liability or obligations obligation in connection with the Debt Financing, unless Parent reimburses or is required to indemnify (2) the Company and its Subsidiaries pursuant shall not be required by this Section 5.05 to this Agreement or otherwiseprovide a restatement of any historical financial statements of the Company that would not have been required other than for the purposes of the Debt Financing, (23) none of the Company, its Subsidiaries the other Acquired Companies or their respective officers, directors or employees shall be required to execute or enter into or perform under any agreement with respect to the Debt Financing that is not contingent upon the Closing occurring or that would be effective prior to the Effective Time (other than authorization letters contemplated by Section 6.05(a)(viii))Closing, (34) none of the Company, its Subsidiaries the other Acquired Companies or their respective officers, directors or employees shall be required to deliver take any certificate action (excluding, for the avoidance of doubt, the provision of the Required Information) that would subject any such Person reasonably believes, in good faith, contains any untrue certifications person to actual or opinionspotential liability, and (45) none nothing shall obligate the Company or any of the other Acquired Companies to provide, or cause to be provided, any legal opinion by its counsel, or to provide, or cause to be provided, any information or take, or cause to be taken, any action to the extent it would reasonably be expected, in the reasonable judgment of the Company, its Subsidiaries or their respective officers, directors or employees shall be required to provide any information the disclosure result in a violation of which is prohibited or restricted under Applicable Law or loss of any privilege; provided that the Company’s organizational documents or which is legally privileged or which is otherwise subject Company shall notify Buyer as to the confidentiality provisionsnature and, to the extent possible without violating any such privilege or Applicable Laws, substance of such information or action covered by such privilege or Applicable Law.
(b) The Company shall provide the Required Financial Information, together with the other information required under Section 6.05(a), to Parent in a manner that does not contain any untrue statement of a material fact or omit to state a material fact necessary to make such information, in light of the circumstances under which the statements contained in such information were made, not misleading. The Company shall notify Parent in writing if the Company determines that (i) any untrue statement of a material fact or omission of any material fact necessary to make such information, in light of the circumstances under which the statements contained in such information were made, not misleading exists with regard to any such information, (ii) any Required Financial Information must be restated or (iii) the Company’s independent registered public accounting firm has withdrawn any audit opinion with respect to any financial statements contained in the Required Financial Information.
(c) Parent Buyer shall, promptly upon written request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses (including reasonable and documented attorneys’ fees) incurred by the Company or any of its Subsidiaries the other Acquired Companies in satisfying its obligations under this Section 6.055.05 (including in connection with providing the SAS 100 review referred to in Section 5.05(a)). Parent, HoldCo Buyer and Merger Sub MergerSub shall, on a joint and several basis, indemnify and hold harmless the Company and its Subsidiaries the other Acquired Companies and their respective Representatives (each an “Indemnified Party”) from and against any and all losses, claims, damages, liabilities, costs, reasonable attorneys’ fees, judgments, fines, penalties and amounts (including amounts paid in settlement and (including all interest, assessments and other charges paid or payable in connection with or in respect of any thereof), joint or several, to which such Indemnified Party may become subject, under the Securities Act, the Exchange Act, other Federal or state statutory or other laws or regulations or otherwise, insofar as such losses, claims, damages, liabilities costs, reasonable attorney’s fees, judgements fines, penalties, and amounts paid in settlement (or actions in respect thereof) arise out of or are based upon or suffered or incurred in connection with any action taken (or failure to act) by the Financing Sources, Parent, its Subsidiaries, or any of their respective Affiliates or the Company, any of its Subsidiaries the other Acquired Companies or any of their respective Representatives pursuant to this Section 6.05 (other than the use of any information provided by the Company, any of its Subsidiaries or any of their respective Representatives in writing for use in connection with the Debt Financing)5.05, except to in the extent event such losses, claims, damages, liabilities, costs, reasonable attorneys’ fees, judgments, fines, penalties and amounts paid in settlement are determined by a final non-appealable judgment of a court of competent jurisdiction to have arisen out of, or resulted from, the gross negligence or willful misconduct of, or a Willful Breach by, of the Company, any of its Subsidiaries the other Acquired Companies or any of their respective Representatives. For the avoidance of doubt, the parties hereto acknowledge and agree that the provisions contained in this Section 5.05, represent the sole obligation of the Company, the other Acquired Companies and their respective Representatives with respect to cooperation in connection with the arrangement of the Debt Financing and no other provision of this Agreement (including the Exhibits and Schedules hereto) shall be deemed to expand or modify such obligations.
Appears in 1 contract
Samples: Merger Agreement (Greif Inc)
Financing Assistance. (a) The Company shallPrior to the Closing Date, Seller agrees to use reasonable best efforts to provide, and shall cause its Subsidiaries tothe Seller Entities and the Purchased Entities and their respective officers, directors, employees and shall use its commercially Representatives to use, reasonable best efforts to cause provide, in each case at Purchaser’s sole expense in accordance with clause (d) of their respective Representatives (including legalthis Section 5.16, tax, regulatory and accounting advisors) to, provide such cooperation as may be reasonably requested by Parent Purchaser that is necessary and customary for financings of the type contemplated in connection with the arrangement of any debt financing (the “Debt Financing (provided that such cooperation does not unreasonably interfere with the ongoing operations of the Company and its SubsidiariesFinancing”), which cooperation shall, to the extent requested, includeincluding using reasonable best efforts to:
(i) as promptly as reasonably practicable furnish to Purchaser any unaudited historical financial statements of the Business and Purchased Entities and other unaudited financial information in any event no later than the tenth Business Day preceding possession of the Closing Date (Seller Entities or the Purchased Entities, and solely related to the Purchased Entities and the Business; provided, that the Seller Entities and the Purchased Entities shall only be obligated to deliver such dateinformation to the extent such information may be obtained from the historical books and records of the Seller Entities, the “Delivery Deadline”) provide Parent Purchased Entities and the Financing Sources with (A) all historical consolidated balance sheets and related audited and unaudited statements of income, comprehensive income, shareholders’ equity and cash flows of the Company and other historical financial information regarding the Company and its Subsidiaries, in either case required to be provided to the Financing Sources by the terms of any commitment letter or agreement entered into with any Financing Source, (B) audited consolidated balance sheets and related audited statements of income, comprehensive income, shareholders’ equity and cash flows of the Company for each of the three fiscal years most recently ended more than 90 days prior to the Closing Date, and unaudited consolidated balance sheets and related unaudited statements of income, comprehensive income, shareholders’ equity and cash flows of the Company for each subsequent fiscal quarter ended more than 45 days prior to the Closing Date, all such audited and unaudited statements complying with the requirements of Form F-4 for persons being acquired and Regulation S-X under the Securities Act for a non-issuer entity whose financial statements are filed in a registered offering of securities solely to satisfy Rule 3-05 of Regulation S-X, without giving effect to Rule 3-05(b)(4) of Regulation S-X (clauses (A) and (B), collectively, the “Required Financial Information”) and (C) such other historical financial and other information regarding the Company and its Subsidiaries as Parent may reasonably requestBusiness;
(ii) as promptly as reasonably practicableupon reasonable prior notice, and in any event no later than the Delivery Deadline, provide Parent and the Financing Sources with such information (financial or otherwise) relating to the Company and its Subsidiaries (including information to be used in the preparation cause members of an information package regarding the business, operations and financial condition of Parent and the Company) reasonably necessary for Parent’s preparation of customary offering or information documents to be used for the completion management of the Debt Financing;
(iii) cooperate and assist with the reasonable due diligence, rating agency processes and syndication and marketing efforts of Parent, its Representatives and the Financing Sources, including participating Business to participate in a reasonable number of meetings (including one-on-one meetings and, presentations with representatives of the Financing Sources, prospective lenders and prospective investors, on and sessions with the one hand, and senior management and Representatives of the Companyratings agencies, in each case with appropriate seniority and expertise, on the other hand), due diligence sessions (including accounting due diligence sessions), drafting sessions and road shows, at reasonable times and on reasonable notice; provided that the Company and its Representatives will only be required to travel or attend any in person meetings for a period not to exceed five Business Days and each such Representative shall be reasonably compensated for his or her reasonable costs and expenses;
(iv) assist Parent in preparing customary offering memoranda, rating agency presentations, lender and investor presentations, confidential information memoranda, private placement memoranda, prospectuses, filings with the SEC and other similar documents prepared in connection with the Debt Financing, including delivery and consenting to the inclusion or incorporation of the Required Financial Information and all other historical financial and other information regarding the Company and its Subsidiaries reasonably requested by Parent for use in any offering or information documents to be prepared in connection with the Debt Financing;
(viii) make available, on a customary and reasonable basis and upon reasonable notice, appropriate personnel, including Representatives cause members of management of the Company Business to reasonably assist Purchaser and the Debt Financing Sources in their preparation of (A) any bank information memoranda and related lender presentations, (B) materials for rating agency presentations; provided, that any such bank information memoranda, lender presentations or similar documents that includes disclosure and financial statements with respect to the Business shall only reflect Purchaser as the obligor(s) and no such bank information memoranda, lender presentations, materials or similar documents shall be issued by Seller or its SubsidiariesSubsidiaries (other than the Purchased Entities) and (C) solely with respect to financial information and data derived from the Business’s historical books and records, documents assist Purchaser with the preparation of pro forma financial information and pro forma financial statements contemplated by the Debt Financing, it being agreed that information and assistance will not be required relating to (1) the proposed aggregate amount of debt and equity financing, together with assumed interest rates, dividends (if any) and fees and expenses relating to the Company incurrence of such debt or equity financing, (2) any post-Closing or pro forma cost savings, synergies, capitalization, ownership or other pro forma adjustments desired to be incorporated into any information used in connection with the Debt Financing or (3) any financial information related to Purchaser or any of its Subsidiaries or any adjustments that are not directly related to the acquisition of the Business by Purchaser;
(iv) reasonably facilitating, executing and its Subsidiariesdelivering the pledging of collateral, in each caseother definitive financing documents, or other certificates, or documents as may be reasonably requested by ParentPurchaser with respect to the Purchased Entities or otherwise and reasonably facilitating in the granting of security interests in, pledging of and obtaining perfection of any liens on collateral with respect to the Financing SourcesPurchased Entities (provided, that (A) none of the documents or as may certificates shall be requested by the SEC executed and/or delivered except in connection with the completion Closing, (B) the effectiveness thereof shall be conditioned upon, or become operative after, the occurrence of the Closing and (C) no liability shall be imposed on any Seller Entities, any of the Purchased Entities or any of their respective officers or employees involved); and
(v) the Purchased Entities taking all corporate actions, subject to the occurrence of the Closing, reasonably requested by Purchaser to permit the consummation of the Debt Financing and the direct borrowing or incurrence of all of the proceeds of the Debt Financing;, by Purchaser upon the Closing (provided, that the effectiveness thereof shall be conditioned upon, or become operative after, the occurrence of the Closing).
(vib) provide Prior to Parent and the Financing Sources promptlyClosing Date, Seller agrees to provide, and in any event shall cause the Seller Entities, the Purchased Entities and their respective officers, directors, employees and Representatives to provide:
(i) (A) the Business Financial Statements, (B) unaudited carve-out pro forma statements of gross margin of the Business for each fiscal year ended on or after December 31, 2023 and at least one hundred twenty (120) days prior to the Closing Date and (C) unaudited carve-out pro forma balance sheets of the Business and unaudited carve-out pro forma statements of gross margin of the Business for each fiscal quarter ended December 31, 2023 and thereafter and at least forty five (45) days prior to the Closing Date; and
(ii) at least three (3) Business Days prior to the Closing Date, all documentation and other information about with respect to the Company and its Affiliates Purchased Entities as shall have been reasonably requested in writing by Parent and Purchaser at least ten (10) days prior to the Closing Date that is required by the Financing Sources or regulatory authorities in connection with respect to the Debt Financing by U.S. regulatory authorities under applicable “know your know-your-customer” and anti-money laundering rules and regulations, including the PATRIOT Patriot Act;, including if the Purchased Entities qualify as “legal entity customers” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification.
(viic) Notwithstanding anything herein to the contrary, (i) such requested cooperation shall not (A) request customary comfort letters from unreasonably interfere with the Companybusiness or the operations of Seller or its Subsidiaries, including the Business or (B) cause significant competitive harm to Seller or its Subsidiaries, including the Business, if the transactions contemplated by this Agreement are not consummated, (ii) nothing in this Section 5.16 shall require cooperation to the extent that it would (A) subject any of the Seller’s independent registered public accounting firm (or its Subsidiaries’, including customary “negative assurances”)the Purchased Entities’, respective directors, managers, officers or employees to any actual or potential personal liability, (B) request reasonably be expected to conflict with, or violate, the CompanySeller’s independent registered public accounting firm to consent to and/or any of its Subsidiaries’, including the inclusion or incorporation of their audit reports with respect to the Required Financial Information in any filing or registration statement of Parent with the SEC Purchased Entities’, organization documents or any prospectusLaw, offering memorandaor result in the contravention of, private placement memorandaor violation or breach of, marketing material or similar documentationdefault under, any Contract to which Seller or any of its Subsidiaries, including by providing customary representation lettersthe Purchased Entities, and is a party, (C) request the Company’s independent registered public accounting firm to reasonably cooperate with Parent and its Representatives, including by participating in accounting due diligence sessions at times and at locations reasonably acceptable cause any condition to the Company and its independent registered public accounting firm;
Closing set forth in Section 7.1, Section 7.2 or Section 7.3 to not be satisfied or (viiiD) subject cause any breach of this Agreement, (iii) neither the Seller, any Subsidiary thereof nor any of the Purchased Entities shall be required to customary confidentiality provisions, provide customary authorization letters (in a form and on terms reasonably acceptable to the CompanyA) to the Financing Sources authorizing the distribution of information to prospective lenders or investors, including, if requested, containing a representation to the Financing Sources that the public side versions of such documents, if any, do not include material non-public information about the Company or its Affiliates;
(ix) deliver notices of prepayment and/or notices for termination of commitments within the time periods required by the Credit Agreement and obtain payoff letters, lien terminations and releases and instruments of discharge, all in customary form, to be delivered at Closing providing for the payoff in full on the Closing Date of pay any amounts due under the Credit Agreement and for the termination of all obligations thereunder (other than other such obligations under the Credit Agreement that expressly by their terms survive such payoff, discharge and termination) and releasing, discharging and terminating any liens and other security interests created under any security documents in connection with the Credit Agreement and all related obligations thereunder and under each security documents (other than obligations under such security documents that expressly by their terms survive such payoff, discharge and termination);
(x) assisting in the preparation of, and executing and delivering, one or more credit agreements, unsecured notes, indentures and other definitive financing documents commitment or other customary certificates (but not solvency certificates) and customary documents as may be reasonably requested by Parent which are necessary and customary similar fee or incur or assume any liability or other obligation in connection with the Debt Financing (which agreementsor be required to take any action that would subject it to actual or potential liability, notes, indentures and to bear any cost or expense or to make any other documents payment or agree to which the Company is a party will be conditioned on the consummation of the Transactions);
(xi) consent to the use of the trademarks, service marks and logos of the Company or provide any of its Subsidiaries indemnity in connection with the Debt Financing; provided Financing or any information utilized in connection therewith, (B) deliver or obtain opinions of internal or external counsel, (C) provide access to or disclose information where Seller determines that such trademarksaccess or disclosure could jeopardize the attorney-client privilege or contravene any Law or Contract or (D) waive or amend any terms of this Agreement or any other Contract to which Seller or its Subsidiaries, service marks including the Purchased Entities, is party, (iv) none of Seller or any of its Subsidiaries, other than the Purchased Entities, or their respective directors, officers or employees, acting in such capacity, shall be required to execute, deliver or enter into or perform any agreement, document or instrument with respect to the Equity Financing or the Debt Financing or adopt any resolutions or take any other actions approving the agreements, documents and instruments pursuant to which the Equity Financing or Debt Financing is obtained (other than customary authorization letters) and (v) none of the Purchased Entities or their respective directors, officers or employees shall be required to execute, deliver or enter into, or perform any agreement, document or instrument with respect to the Equity Financing or the Debt Financing that is not contingent upon the Closing or that would be effective prior to the Closing Date (other than customary authorization letters) and the directors and managers of the Purchased Entities shall not be required to adopt resolutions approving the agreements, documents and instruments pursuant to which the Equity Financing or Debt Financing is obtained unless Purchaser shall have determined that such directors and managers are to remain as directors and managers of the Purchased Entities on and after the Closing Date and such resolutions are contingent upon the occurrence of, or only effective as of, the Closing (other than customary authorization letters). Seller hereby consents to the use of logos of the Business in connection with the Debt Financing; provided, that such logos are used solely in a manner that is not intended to or is not to, nor reasonably likely to to, harm or disparage the Company Seller Entities, the Purchased Entities or the Business.
(d) The Seller Entities and the Purchased Entities shall have no liability whatsoever to Purchaser in respect of any financial information or data or other information provided pursuant to this Section 5.16. Purchaser shall indemnify, defend and hold harmless each of the Seller, its Subsidiaries; and
(xii) taking , including the Purchased Entities, and their Affiliates and Representatives from and against any and all other corporate actionsliabilities, subject to the occurrence of the Closinglosses, as may be reasonably necessary to permit the consummation of the Debt Financing. Notwithstanding the foregoingdamages, (1) neither the Company nor any of its Subsidiaries shall be required to pay any feesclaims, expenses costs, expenses, interest, awards, judgments and penalties suffered or costs or incur any liability or obligations incurred by them in connection with the Debt Financing, unless Parent reimburses or is required to indemnify Financing and the Company and its Subsidiaries pursuant to this Agreement or otherwise, (2) none performance of the Company, its Subsidiaries or their respective officers, directors or employees shall be required to execute or enter into or perform obligations under this Section 5.16 and any agreement with respect to the Debt Financing that is not contingent upon the Closing occurring or that would be effective prior to the Effective Time information utilized in connection therewith (other than authorization letters contemplated any such liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties resulting from the fraud, willful breach, willful misconduct, gross negligence or bad faith by Section 6.05(a)(viii)), (3) none any of the CompanySeller, its Subsidiaries or their respective officers, directors or employees shall be required to deliver any certificate that such Person reasonably believes, in good faith, contains any untrue certifications or opinionsthe Seller Entities and the Purchased Entities, and (4) none of the Companytheir Representatives, its Subsidiaries or their respective officers, directors or employees shall be required to provide any information the disclosure of which is prohibited or restricted under Applicable Law or the Company’s organizational documents or which is legally privileged or which is otherwise subject to the confidentiality provisions.
(b) The Company shall provide the Required Financial Information, together with the other information required under Section 6.05(a), to Parent as determined in a manner that does not contain any untrue statement final and non-appealable judgement by a court of a material fact or omit to state a material fact necessary to make such information, in light of the circumstances under which the statements contained in such information were made, not misleadingcompetent jurisdiction). The Company shall notify Parent in writing if the Company determines that (i) any untrue statement of a material fact or omission of any material fact necessary to make such information, in light of the circumstances under which the statements contained in such information were made, not misleading exists with regard to any such information, (ii) any Required Financial Information must be restated or (iii) the Company’s independent registered public accounting firm has withdrawn any audit opinion with respect to any financial statements contained in the Required Financial Information.
(c) Parent Purchaser shall, promptly upon written request by of the CompanySeller, reimburse Seller and its Subsidiaries, including the Company Purchased Entities, for all reasonable and documented out-of-pocket fees, costs and expenses incurred by Seller or its Subsidiaries, including the Business and the Purchased Entities, (including reasonable and documented attorneys’ fees) incurred by the Company or any those of its Subsidiaries Affiliates and Representatives) in satisfying connection with the cooperation required by this Section 5.16.
(e) For the avoidance of doubt, the parties hereto acknowledge and agree that the provisions contained in this Section 5.16 represent the sole obligation of the Seller, its Subsidiaries, the Purchased Entities and their Affiliates and their respective Representatives with respect to cooperation in connection with the arrangement of the Debt Financing and no other provision of this Agreement (including the Exhibits and Schedules hereto) shall be deemed to expand or modify such obligations. Notwithstanding anything in this Agreement to the contrary, the condition set forth in Section 7.2(b) as it applies to Seller’s, its Subsidiaries’ and the Purchased Entities’ obligations under this Section 5.16, shall be deemed satisfied unless (i) the Debt Financing has not been obtained primarily as a result of the Seller’s Willful Breach of its obligations under this Section 6.05. Parent5.16, HoldCo and Merger Sub shall, on a joint and several basis, indemnify and hold harmless (ii) Purchaser has provided written notice to Seller of the Company and its Subsidiaries and their respective Representatives (each an “Indemnified Party”) from and against any and all losses, claims, damages, liabilities, costs, reasonable attorneys’ fees, judgments, fines, penalties and amounts (including amounts paid in settlement and all interest, assessments and other charges paid or payable in connection with or in respect of any thereof), joint or several, to which such Indemnified Party may become subject, under the Securities Act, the Exchange Act, other Federal or state statutory or other laws or regulations or otherwise, insofar as such losses, claims, damages, liabilities costs, reasonable attorney’s fees, judgements fines, penalties, and amounts paid in settlement (or actions in respect thereof) arise out of or are based upon or suffered or incurred in connection with any action taken (or alleged failure to actcomply and (iii) such failure to comply has not been cured by no later than the Financing Sources, Parent, its Subsidiaries, or any earlier to occur of their respective Affiliates ten (10) Business Days from receipt of such written notice or the Company, any of its Subsidiaries or any of their respective Representatives pursuant to this Section 6.05 (other than the use of any information provided by the Company, any of its Subsidiaries or any of their respective Representatives in writing for use in connection with the Debt Financing), except to the extent such losses, claims, damages, liabilities, costs, reasonable attorneys’ fees, judgments, fines, penalties and amounts paid in settlement are determined by a final non-appealable judgment of a court of competent jurisdiction to have arisen out of, or resulted from, the gross negligence or willful misconduct of, or a Willful Breach by, the Company, any of its Subsidiaries or any of their respective RepresentativesOutside Date.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Alight, Inc. / Delaware)
Financing Assistance. (a) The Company shallSemGroup has agreed it will, and shall will cause its Subsidiaries subsidiaries and their respective representatives to, and shall use its commercially reasonable best efforts to cause each provide reasonable and customary cooperation in connection with any financing by Energy Transfer or any of their its respective Representatives (including legal, tax, regulatory and accounting advisors) to, provide such cooperation as may be reasonably requested by Parent subsidiaries in connection with the Debt Financing (provided that merger or otherwise, but will not be required to pay any commitment fee, provide any security or incur any liability in connection with any financing prior to the effective time. Other Covenants and Agreements The merger agreement contains additional agreements between the parties relating to the following matters, among other things: • taking such cooperation does not unreasonably interfere actions to render state takeover laws to be inapplicable to the merger and the other transactions contemplated by the merger agreement; • making certain public announcements regarding the terms of the merger agreement or the transactions contemplated thereby; • taking steps as may be required to cause any dispositions of SemGroup common stock or acquisitions of ET common units resulting from the merger agreement transactions to be exempt under Rule 16b-3 under the Exchange Act; • the listing on the NYSE of the ET common units to be issued as consideration in connection with the ongoing operations merger; • SemGroup will give notice of, convene and hold a meeting of the Company and its Subsidiaries), which cooperation shall, to the extent requested, include:
(i) stockholders as promptly as reasonably practicable after the registration statement on Form S-4, of which this document forms a part, is declared effective under the Securities Act; and • each party will provide reasonable access to personnel, properties, books and record. Termination of the Merger Agreement The merger agreement may be terminated in accordance with its terms at any event no later time prior to the effective time, whether before or after SemGroup stockholder approval: • by mutual written consent of Energy Transfer and SemGroup; • by either Energy Transfer or SemGroup, if the merger is not completed on or prior to June 30, 2020, provided, that if all of the conditions to closing, other than legal prohibitions or regulatory approvals, have been satisfied or are capable of being satisfied at such time, the tenth Business Day preceding the Closing Date end date will be automatically extended to September 30, 2020 (such date, as it may be extended from June 30, 2020, is referred to as the “Delivery DeadlineEnd Date”) provide Parent ); and provided, further, that such right to terminate the Financing Sources with (A) all historical consolidated balance sheets and related audited and unaudited statements merger agreement will not be available to a party if the material breach by such party of incomeany representation, comprehensive incomewarranty, shareholders’ equity and cash flows covenant or other agreement of such party set forth in the merger agreement caused the failure of the Company and other historical financial information regarding the Company and its Subsidiaries, in either case required closing to be provided to the Financing Sources occur by the terms of any commitment letter End Date; • by either Energy Transfer or agreement entered into with any Financing SourceSemGroup, (B) audited consolidated balance sheets and related audited statements of incomeif an injunction or other law is entered, comprehensive incomeenacted or becomes effective permanently restraining, shareholders’ equity and cash flows enjoining or otherwise prohibiting the consummation of the Company for each of the three fiscal years most recently ended more than 90 days prior to the Closing Date, merger and unaudited consolidated balance sheets such injunction or other law will have become final and related unaudited statements of income, comprehensive income, shareholders’ equity and cash flows of the Company for each subsequent fiscal quarter ended more than 45 days prior to the Closing Date, all such audited and unaudited statements complying with the requirements of Form F-4 for persons being acquired and Regulation S-X under the Securities Act for a non-issuer entity whose financial statements are filed in a registered offering of securities solely to satisfy Rule 3-05 of Regulation S-X, without giving effect to Rule 3-05(b)(4) of Regulation S-X (clauses (A) and (B), collectively, the “Required Financial Information”) and (C) such other historical financial and other information regarding the Company and its Subsidiaries as Parent may reasonably request;
(ii) as promptly as reasonably practicable, and in any event no later than the Delivery Deadline, provide Parent and the Financing Sources with such information (financial or otherwise) relating to the Company and its Subsidiaries (including information to be used in the preparation of an information package regarding the business, operations and financial condition of Parent and the Company) reasonably necessary for Parent’s preparation of customary offering or information documents to be used for the completion of the Debt Financing;
(iii) cooperate and assist with the reasonable due diligence, rating agency processes and syndication and marketing efforts of Parent, its Representatives and the Financing Sources, including participating in a reasonable number of meetings (including one-on-one meetings with representatives of the Financing Sources, prospective lenders and prospective investors, on the one hand, and senior management and Representatives of the Company, in each case with appropriate seniority and expertise, on the other hand), due diligence sessions (including accounting due diligence sessions), drafting sessions and road shows, at reasonable times and on reasonable noticeappealable; provided that the Company and party seeking to avail itself of such right to terminate will have used its Representatives will only be required reasonable best efforts to travel or attend any in person meetings for a period not to exceed five Business Days and each remove such Representative shall be reasonably compensated for his or her reasonable costs and expenses;
(iv) assist Parent in preparing customary offering memoranda, rating agency presentations, lender and investor presentations, confidential information memoranda, private placement memoranda, prospectuses, filings with the SEC and other similar documents prepared in connection with the Debt Financing, including delivery and consenting injunction to the inclusion extent so required by the merger agreement; or incorporation • by either Energy Transfer or SemGroup, if SemGroup’s stockholder meeting (including any adjournments or postponements thereof) has concluded, at which a vote upon the adoption of the Required Financial Information merger agreement was taken, and all other historical financial and other information regarding without receiving the Company and its Subsidiaries reasonably requested by Parent for use in any offering or information documents to be prepared in connection with the Debt Financing;
(v) make available, on a customary and reasonable basis and upon reasonable notice, appropriate personnel, including Representatives approval of the Company merger agreement. Energy Transfer may also terminate the merger agreement: • if SemGroup breached or failed to perform any of its representations, warranties, covenants or other agreements contained in the merger agreement, which breach or failure to perform (i) would result in a failure of a closing condition and (ii) by its Subsidiariesnature, documents and information relating cannot be cured prior to the Company and End Date or, if by its Subsidiariesnature such breach or failure is capable of being cured by the End Date, SemGroup does not or ceases to diligently attempt to cure such breach or failure in such a manner that would make it reasonably likely that such breach or failure will be cured prior to the End Date, in each case, as after receiving written notice from Energy Transfer describing such breach or failure in reasonable detail (provided that Energy Transfer is not then in material breach of any representation, warranty, covenant or other agreement contained in the merger agreement); or • prior to obtaining SemGroup stockholder approval, (i) in the event of a change of recommendation or (ii) SemGroup willfully and materially breaches any of its obligations not to solicit acquisition proposals or change its recommendation pursuant to the merger agreement. SemGroup may also terminate the merger agreement: • if Energy Transfer breached or failed to perform any of its representations, warranties, covenants or other agreements contained in the merger agreement, which breach or failure to perform (i) would result in a failure of a closing condition and (ii) by its nature, cannot be reasonably requested by Parent, the Financing Sources, or as may be requested by the SEC in connection with the completion of the Debt Financing;
(vi) provide to Parent and the Financing Sources promptly, and in any event at least five Business Days cured prior to the Closing End Date or, if by its nature such breach or failure is capable of being cured by the End Date, all documentation and Energy Transfer does not or ceases to diligently attempt to cure such breach or failure after receiving written notice from SemGroup describing such breach or failure in reasonable detail (provided that SemGroup is not then in material breach of any representation, warranty, covenant or other information about agreement contained in the Company and merger agreement); or • prior to obtaining SemGroup stockholder approval (only if SemGroup has complied with its Affiliates requested in writing by Parent and required by the Financing Sources obligations not to solicit acquisition proposals or regulatory authorities with respect change its recommendation pursuant to the Debt Financing under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act;
(viimerger agreement) (A) request customary comfort letters from the Company’s independent registered public accounting firm (including customary “negative assurances”), (B) request the Company’s independent registered public accounting firm in order to consent to the inclusion or incorporation of their audit reports with respect to the Required Financial Information in any filing or registration statement of Parent with the SEC or any prospectus, offering memoranda, private placement memoranda, marketing material or similar documentation, including by providing customary representation letters, and (C) request the Company’s independent registered public accounting firm to reasonably cooperate with Parent and its Representatives, including by participating in accounting due diligence sessions at times and at locations reasonably acceptable to the Company and its independent registered public accounting firm;
(viii) subject to customary confidentiality provisions, provide customary authorization letters (in a form and on terms reasonably acceptable to the Company) to the Financing Sources authorizing the distribution of information to prospective lenders or investors, including, if requested, containing a representation to the Financing Sources that the public side versions of such documents, if any, do not include material non-public information about the Company or its Affiliates;
(ix) deliver notices of prepayment and/or notices for termination of commitments within the time periods required by the Credit Agreement and obtain payoff letters, lien terminations and releases and instruments of discharge, all in customary form, to be delivered at Closing providing for the payoff in full on the Closing Date of any amounts due under the Credit Agreement and for the termination of all obligations thereunder (other than other such obligations under the Credit Agreement that expressly by their terms survive such payoff, discharge and termination) and releasing, discharging and terminating any liens and other security interests created under any security documents in connection with the Credit Agreement and all related obligations thereunder and under each security documents (other than obligations under such security documents that expressly by their terms survive such payoff, discharge and termination);
(x) assisting in the preparation of, and executing and delivering, one or more credit agreements, unsecured notes, indentures and other definitive financing documents or other customary certificates (but not solvency certificates) and customary documents as may be reasonably requested by Parent which are necessary and customary in connection with the Debt Financing (which agreements, notes, indentures and other documents to which the Company is a party will be conditioned on the consummation of the Transactions);
(xi) consent to the use of the trademarks, service marks and logos of the Company or any of its Subsidiaries in connection with the Debt Financing; provided that such trademarks, service marks and logos are used solely in a manner that is not intended to or is not reasonably likely to harm or disparage the Company or any of its Subsidiaries; and
(xii) taking all other corporate actions, subject to the occurrence of the Closing, as may be reasonably necessary to permit the consummation of the Debt Financing. Notwithstanding the foregoing, (1) neither the Company nor any of its Subsidiaries shall be required to pay any fees, expenses or costs or incur any liability or obligations in connection with the Debt Financing, unless Parent reimburses or is required to indemnify the Company and its Subsidiaries pursuant to this Agreement or otherwise, (2) none of the Company, its Subsidiaries or their respective officers, directors or employees shall be required to execute or enter into or perform under any a definitive agreement with respect to a superior offer (which it enters into with or promptly following the Debt Financing that is not contingent upon the Closing occurring or that would be effective prior to the Effective Time (other than authorization letters contemplated by Section 6.05(a)(viii)), (3) none termination of the Company, its Subsidiaries or their respective officers, directors or employees shall be required to deliver any certificate merger agreement); provided that such Person reasonably believes, in good faith, contains any untrue certifications or opinions, and (4) none of the Company, its Subsidiaries or their respective officers, directors or employees shall be required to provide any information the disclosure of which is prohibited or restricted under Applicable Law or the Company’s organizational documents or which is legally privileged or which is otherwise subject to the confidentiality provisions.
(b) The Company shall provide the Required Financial Information, together with the other information required under Section 6.05(a), to Parent in a manner that does not contain any untrue statement of a material fact or omit to state a material fact necessary to make such information, in light of the circumstances under which the statements contained in such information were made, not misleading. The Company shall notify Parent in writing if the Company determines that (i) any untrue statement of a material fact or omission of any material fact necessary to make such information, in light of the circumstances under which the statements contained in such information were made, not misleading exists with regard to any such information, (ii) any Required Financial Information must purported termination by SemGroup will be restated void and of no force or (iii) effect unless SemGroup pays Energy Transfer the Company’s independent registered public accounting firm has withdrawn any audit opinion with respect to any financial statements contained in the Required Financial InformationBreakup Fee summarized below.
(c) Parent shall, promptly upon written request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses (including reasonable and documented attorneys’ fees) incurred by the Company or any of its Subsidiaries in satisfying its obligations under this Section 6.05. Parent, HoldCo and Merger Sub shall, on a joint and several basis, indemnify and hold harmless the Company and its Subsidiaries and their respective Representatives (each an “Indemnified Party”) from and against any and all losses, claims, damages, liabilities, costs, reasonable attorneys’ fees, judgments, fines, penalties and amounts (including amounts paid in settlement and all interest, assessments and other charges paid or payable in connection with or in respect of any thereof), joint or several, to which such Indemnified Party may become subject, under the Securities Act, the Exchange Act, other Federal or state statutory or other laws or regulations or otherwise, insofar as such losses, claims, damages, liabilities costs, reasonable attorney’s fees, judgements fines, penalties, and amounts paid in settlement (or actions in respect thereof) arise out of or are based upon or suffered or incurred in connection with any action taken (or failure to act) by the Financing Sources, Parent, its Subsidiaries, or any of their respective Affiliates or the Company, any of its Subsidiaries or any of their respective Representatives pursuant to this Section 6.05 (other than the use of any information provided by the Company, any of its Subsidiaries or any of their respective Representatives in writing for use in connection with the Debt Financing), except to the extent such losses, claims, damages, liabilities, costs, reasonable attorneys’ fees, judgments, fines, penalties and amounts paid in settlement are determined by a final non-appealable judgment of a court of competent jurisdiction to have arisen out of, or resulted from, the gross negligence or willful misconduct of, or a Willful Breach by, the Company, any of its Subsidiaries or any of their respective Representatives.
Appears in 1 contract
Samples: Merger Agreement
Financing Assistance. (a) The Company shalland its Subsidiaries shall obtain debt financing on terms and from financing sources consistent with those contemplated by the debt financing term sheet attached hereto as Exhibit C and in amounts sufficient to consummate the transactions contemplated by this Agreement, the Preferred Term Sheet, the PFTS, the GM Settlement and the Plan, such financing to be on then-prevailing market terms with respect to the applicable interest rate, redemption provisions and fees, and otherwise to be on terms that are acceptable to each of the Investor and Highland Capital not to be unreasonably withheld (the “Debt Financing”); provided, that if the Company delivers to Investor and Highland Capital definitive term sheets for any such proposed debt financing that have been approved by the Company’s board of directors and executed by the banks or other financing sources providing such debt financing reflecting then-prevailing market terms with respect to the applicable interest rate, redemption provisions and fees (a “Company Financing Proposal”), then Investor or Highland Capital shall cause inform the Company in writing (a “Financing Notice Proposal”) whether or not the Company Financing Proposal is acceptable to it within five (5) Business Days of its Subsidiaries toreceipt of the definitive term sheets for such Company Financing Proposal. If, after the Company delivers to Investor and Highland Capital a Company Financing Proposal, Investor or Highland Capital fails to deliver a Financing Notice within five (5) Business Days or each of the following circumstances as set forth in (x), (y) and (z) below occurs, then the Company may terminate this Agreement and the transactions contemplated hereby may be abandoned: (x) Investor or Highland Capital delivers a Financing Notice in which it does not approve the Company Financing Proposal, (y) Investor and Highland Capital do not present to the Company, within thirty (30) days of the delivery of the Financing Notice by Investor or Highland Capital (the “Financing Decision Date Proposal”), an alternative written expression of interest to provide the Debt Financing on terms more favorable to the Company than the Company Financing Proposal with financial institutions reasonably acceptable to the Company (a “Preferred Debt Financing”) and (z) Investor or Highland Capital do not provide to the Company commitment letters executed by the banks or other financing sources providing such Preferred Debt Financing within sixty (60) days of the Financing Decision Date. Delphi shall use its commercially reasonable best efforts to cause each implement any Preferred Debt Financing and to fulfill its other obligations pursuant to this Section 5(u). Subject to applicable regulatory or NASD requirements, Lxxxxx Brothers (or its Affiliates) shall be entitled to participate in such Debt Financing on market terms. The Company and its Subsidiaries shall execute and deliver any commitment letters, underwriting or placement agreements, registration statements, pledge and security documents, other definitive financing documents, or other requested certificates or documents necessary or desirable to obtain the Debt Financing. The Company will (i) provide to the Investor, Highland Capital and their counsel a copy of all marketing information, term sheets, commitment letters and agreements related to the Debt Financing and a reasonable opportunity to review and comment on such documents prior to such document being distributed, executed or delivered or filed with the Bankruptcy Court, (ii) duly consider in good faith any comments of the Investor, Highland Capital and their respective Representatives counsel consistent with the Agreement and the PFTS and any other reasonable comments of the Investor, Highland Capital and their counsel and shall not reject such comments without first discussing the reasons therefor with the Investor, Highland Capital and their counsel and giving due consideration to the views of the Investor, Highland Capital and their counsel, and (including legal, tax, regulatory and accounting advisorsiii) to, provide such cooperation as may be keep the Investor reasonably requested by Parent informed on a timely basis of developments in connection with the Debt Financing (provided that such cooperation does not unreasonably interfere and provide the Investor with the ongoing operations of the Company an opportunity to attend and its Subsidiaries), which cooperation shall, to the extent requested, include:
(i) as promptly as reasonably practicable and participate in any event no later than the tenth Business Day preceding the Closing Date (such date, the “Delivery Deadline”) provide Parent and the Financing Sources meetings and/or roadshows with (A) all historical consolidated balance sheets and related audited and unaudited statements of income, comprehensive income, shareholders’ equity and cash flows of the Company and other historical financial information regarding the Company and its Subsidiaries, in either case required to be provided to the Financing Sources by the terms of any commitment letter or agreement entered into with any Financing Source, (B) audited consolidated balance sheets and related audited statements of income, comprehensive income, shareholders’ equity and cash flows of the Company for each of the three fiscal years most recently ended more than 90 days prior to the Closing Date, and unaudited consolidated balance sheets and related unaudited statements of income, comprehensive income, shareholders’ equity and cash flows of the Company for each subsequent fiscal quarter ended more than 45 days prior to the Closing Date, all such audited and unaudited statements complying with the requirements of Form F-4 for persons being acquired and Regulation S-X under the Securities Act for a non-issuer entity whose financial statements are filed in a registered offering of securities solely to satisfy Rule 3-05 of Regulation S-X, without giving effect to Rule 3-05(b)(4) of Regulation S-X (clauses (A) and (B), collectively, the “Required Financial Information”) and (C) such other historical financial and other information regarding the Company and its Subsidiaries as Parent may reasonably request;
(ii) as promptly as reasonably practicable, and in any event no later than the Delivery Deadline, provide Parent and the Financing Sources with such information (financial or otherwise) relating to the Company and its Subsidiaries (including information to be used in the preparation of an information package regarding the business, operations and financial condition of Parent and the Company) reasonably necessary for Parent’s preparation of customary offering or information documents to be used for the completion potential providers of the Debt Financing;
(iii) cooperate and assist with the reasonable due diligence, rating agency processes and syndication and marketing efforts of Parent, its Representatives and the Financing Sources, including participating in a reasonable number of meetings (including one-on-one meetings with representatives of the Financing Sources, prospective lenders and prospective investors, on the one hand, and senior management and Representatives of the Company, in each case with appropriate seniority and expertise, on the other hand), due diligence sessions (including accounting due diligence sessions), drafting sessions and road shows, at reasonable times and on reasonable notice; provided that the Company and its Representatives will only be required to travel or attend any in person meetings for a period not to exceed five Business Days and each such Representative shall be reasonably compensated for his or her reasonable costs and expenses;
(iv) assist Parent in preparing customary offering memoranda, rating agency presentations, lender and investor presentations, confidential information memoranda, private placement memoranda, prospectuses, filings with the SEC and other similar documents prepared in connection with the Debt Financing, including delivery and consenting to the inclusion or incorporation of the Required Financial Information and all other historical financial and other information regarding the Company and its Subsidiaries reasonably requested by Parent for use in any offering or information documents to be prepared in connection with the Debt Financing;
(v) make available, on a customary and reasonable basis and upon reasonable notice, appropriate personnel, including Representatives of the Company and its Subsidiaries, documents and information relating to the Company and its Subsidiaries, in each case, as may be reasonably requested by Parent, the Financing Sources, or as may be requested by the SEC in connection with the completion of the Debt Financing;
(vi) provide to Parent and the Financing Sources promptly, and in any event at least five Business Days prior to the Closing Date, all documentation and other information about the Company and its Affiliates requested in writing by Parent and required by the Financing Sources or regulatory authorities with respect to the Debt Financing under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act;
(vii) (A) request customary comfort letters from the Company’s independent registered public accounting firm (including customary “negative assurances”), (B) request the Company’s independent registered public accounting firm to consent to the inclusion or incorporation of their audit reports with respect to the Required Financial Information in any filing or registration statement of Parent with the SEC or any prospectus, offering memoranda, private placement memoranda, marketing material or similar documentation, including by providing customary representation letters, and (C) request the Company’s independent registered public accounting firm to reasonably cooperate with Parent and its Representatives, including by participating in accounting due diligence sessions at times and at locations reasonably acceptable to the Company and its independent registered public accounting firm;
(viii) subject to customary confidentiality provisions, provide customary authorization letters (in a form and on terms reasonably acceptable to the Company) to the Financing Sources authorizing the distribution of information to prospective lenders or investors, including, if requested, containing a representation to the Financing Sources that the public side versions of such documents, if any, do not include material non-public information about the Company or its Affiliates;
(ix) deliver notices of prepayment and/or notices for termination of commitments within the time periods required by the Credit Agreement and obtain payoff letters, lien terminations and releases and instruments of discharge, all in customary form, to be delivered at Closing providing for the payoff in full on the Closing Date of any amounts due under the Credit Agreement and for the termination of all obligations thereunder (other than other such obligations under the Credit Agreement that expressly by their terms survive such payoff, discharge and termination) and releasing, discharging and terminating any liens and other security interests created under any security documents in connection with the Credit Agreement and all related obligations thereunder and under each security documents (other than obligations under such security documents that expressly by their terms survive such payoff, discharge and termination);
(x) assisting in the preparation of, and executing and delivering, one or more credit agreements, unsecured notes, indentures and other definitive financing documents or other customary certificates (but not solvency certificates) and customary documents as may be reasonably requested by Parent which are necessary and customary in connection with the Debt Financing (which agreements, notes, indentures and other documents to which the Company is a party will be conditioned on the consummation of the Transactions);
(xi) consent to the use of the trademarks, service marks and logos of the Company or any of its Subsidiaries in connection with the Debt Financing; provided that such trademarks, service marks and logos are used solely in a manner that is not intended to or is not reasonably likely to harm or disparage the Company or any of its Subsidiaries; and
(xii) taking all other corporate actions, subject to the occurrence of the Closing, as may be reasonably necessary to permit the consummation of the Debt Financing. Notwithstanding the foregoing, (1) neither the Company nor any of its Subsidiaries shall be required to pay any fees, expenses or costs or incur any liability or obligations in connection with the Debt Financing, unless Parent reimburses or is required to indemnify the Company and its Subsidiaries pursuant to this Agreement or otherwise, (2) none of the Company, its Subsidiaries or their respective officers, directors or employees shall be required to execute or enter into or perform under any agreement with respect to the Debt Financing that is not contingent upon the Closing occurring or that would be effective prior to the Effective Time (other than authorization letters contemplated by Section 6.05(a)(viii)), (3) none of the Company, its Subsidiaries or their respective officers, directors or employees shall be required to deliver any certificate that such Person reasonably believes, in good faith, contains any untrue certifications or opinions, and (4) none of the Company, its Subsidiaries or their respective officers, directors or employees shall be required to provide any information the disclosure of which is prohibited or restricted under Applicable Law or the Company’s organizational documents or which is legally privileged or which is otherwise subject to the confidentiality provisions.
(b) The Company shall provide the Required Financial Information, together with the other information required under Section 6.05(a), to Parent in a manner that does not contain any untrue statement of a material fact or omit to state a material fact necessary to make such information, in light of the circumstances under which the statements contained in such information were made, not misleading. The Company shall notify Parent in writing if the Company determines that (i) any untrue statement of a material fact or omission of any material fact necessary to make such information, in light of the circumstances under which the statements contained in such information were made, not misleading exists with regard to any such information, (ii) any Required Financial Information must be restated or (iii) the Company’s independent registered public accounting firm has withdrawn any audit opinion with respect to any financial statements contained in the Required Financial Information.
(c) Parent shall, promptly upon written request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses (including reasonable and documented attorneys’ fees) incurred by the Company or any of its Subsidiaries in satisfying its obligations under this Section 6.05. Parent, HoldCo and Merger Sub shall, on a joint and several basis, indemnify and hold harmless the Company and its Subsidiaries and their respective Representatives (each an “Indemnified Party”) from and against any and all losses, claims, damages, liabilities, costs, reasonable attorneys’ fees, judgments, fines, penalties and amounts (including amounts paid in settlement and all interest, assessments and other charges paid or payable in connection with or in respect of any thereof), joint or several, to which such Indemnified Party may become subject, under the Securities Act, the Exchange Act, other Federal or state statutory or other laws or regulations or otherwise, insofar as such losses, claims, damages, liabilities costs, reasonable attorney’s fees, judgements fines, penalties, and amounts paid in settlement (or actions in respect thereof) arise out of or are based upon or suffered or incurred in connection with any action taken (or failure to act) by the Financing Sources, Parent, its Subsidiaries, or any of their respective Affiliates or the Company, any of its Subsidiaries or any of their respective Representatives pursuant to this Section 6.05 (other than the use of any information provided by the Company, any of its Subsidiaries or any of their respective Representatives in writing for use in connection with the Debt Financing), except to the extent such losses, claims, damages, liabilities, costs, reasonable attorneys’ fees, judgments, fines, penalties and amounts paid in settlement are determined by a final non-appealable judgment of a court of competent jurisdiction to have arisen out of, or resulted from, the gross negligence or willful misconduct of, or a Willful Breach by, the Company, any of its Subsidiaries or any of their respective Representatives.
Appears in 1 contract
Samples: Equity Purchase and Commitment Agreement (Highland Capital Management Lp)
Financing Assistance. (a) The Company Following the execution of this Agreement, and prior to the Closing, ABI shall, except to the extent prohibited by the UK Code, use its reasonable best efforts to cause Xxxxxx Parent and shall cause its Subsidiaries to, and shall use its commercially reasonable efforts to cause each at the sole expense of their respective Representatives (including legal, tax, regulatory and accounting advisors) toBuyer, provide such cooperation (and to cause Xxxxxx Parent and its Subsidiaries to use reasonable best efforts to cause their respective officers, directors, employees, controlled Affiliates, attorneys, investment bankers, financial advisers, agents and other representatives to provide such cooperation) as may be reasonably requested by Parent Xxxxx from time to time in connection with the Debt Financing (provided that such cooperation does not unreasonably interfere with the ongoing operations arrangement of the Company Financing. Without limiting the generality of the foregoing sentence, prior to the Closing, ABI shall, except to the extent prohibited by the UK Code, use its reasonable best efforts to cause Xxxxxx Parent and its Subsidiaries), which cooperation shallat the sole expense of Buyer, to the extent requested, include:
to: (i) as promptly as reasonably practicable and in any event no later provide information (other than financial information) relating to the tenth Acquired Business Day preceding the Closing Date (such date, the “Delivery Deadline”) provide Parent and the Financing Sources with (A) all historical consolidated balance sheets and related audited and unaudited statements of income, comprehensive income, shareholders’ equity and cash flows of the Company and other historical financial information regarding the Company and its Subsidiaries, in either case required to be provided to the Financing Sources by the terms of any commitment letter or agreement entered into with any Financing Source, (B) audited consolidated balance sheets and related audited statements of income, comprehensive income, shareholders’ equity and cash flows of the Company for each of the three fiscal years most recently ended more than 90 days prior to the Closing Date, and unaudited consolidated balance sheets and related unaudited statements of income, comprehensive income, shareholders’ equity and cash flows of the Company for each subsequent fiscal quarter ended more than 45 days prior to the Closing Date, all such audited and unaudited statements complying with the requirements of Form F-4 for persons being acquired and Regulation S-X under the Securities Act for a non-issuer entity whose financial statements are filed in a registered offering of securities solely to satisfy Rule 3-05 of Regulation S-X, without giving effect to Rule 3-05(b)(4) of Regulation S-X (clauses (A) and (B), collectively, the “Required Financial Information”) and (C) such other historical financial and other including information regarding the Company and its Subsidiaries as Parent may reasonably request;
(ii) as promptly as reasonably practicable, and in any event no later than the Delivery Deadline, provide Parent and the Financing Sources with such information (financial or otherwise) relating to the Company and its Subsidiaries (including information Acquired Business to be used in the preparation of an information package regarding the business, business and operations and financial condition of Parent Buyer and the Company) Acquired Business customary or reasonably necessary for Parent’s preparation the completion of the Financing) to the extent reasonably requested by Buyer to prepare customary offering or information documents to be used for the completion of the Debt Financing;
, (ii) provide (x) the Required JV Financial Information (to the extent not already in the possession of Buyer or any of its Affiliates (other than the JV and its Subsidiaries)) and (y) the Required Xxxxxx International Business Financial Information, in each case, that is Compliant, (iii) cooperate and assist with the reasonable due diligence, rating agency processes and syndication and marketing efforts of Parent, its Representatives Xxxxx and the Financing Sources, including participating in a reasonable number of meetings (including one-on-one meetings with representatives of the Financing Sources, prospective lenders and prospective investors, on the one hand, and senior management and Representatives of the Company, in each case with appropriate seniority and expertise, on the other hand), due diligence sessions (including accounting due diligence sessions), drafting sessions and road shows, at reasonable times and on reasonable notice; provided that the Company and its Representatives will only be required to travel or attend any in person meetings for a period not to exceed five Business Days and each such Representative shall be reasonably compensated for his or her reasonable costs and expenses;
(iv) reasonably assist Parent Buyer in preparing its preparation of customary offering memoranda, rating agency presentations, lender and investor presentations, confidential information memoranda, private placement memoranda, prospectuses, filings with the SEC prospectuses and other similar documents prepared (including reasonably assisting in connection with the Debt Financing, including delivery and consenting to the inclusion or incorporation preparation of the Required Financial Information and all other historical pro forma financial and other information regarding the Company and its Subsidiaries reasonably requested by Parent for use in any offering or information documents statements to be prepared included in connection with the Debt Financing;
foregoing), (v) make available, on a customary and reasonable basis and upon reasonable notice, appropriate personnel, including Representatives of the Company and its Subsidiaries, documents and information relating to the Company and its SubsidiariesAcquired Business, in each case, as may be reasonably requested by Parent, the Financing SourcesBuyer, or as may be requested by the SEC in connection with the completion of the Debt Financing;
, (vi) provide to Parent obtain any necessary consents from Xxxxxx Parent’s independent public accounting firm in connection with any filings with the SEC and the Financing Sources promptly, and in any event at least five Business Days prior to the Closing Date, all documentation and other information about the Company and its Affiliates requested in writing by Parent and required by the Financing Sources or regulatory authorities with respect to the Debt Financing under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act;
(vii) (A) request customary comfort letters from the Company’s independent registered public accounting firm (including customary “negative assurances”), (B) request the Company’s independent registered public accounting firm to consent to the inclusion or incorporation of their audit reports with respect to the Required Financial Information in any filing or registration statement of Parent with the SEC or any prospectus, offering memoranda, private placement memoranda, marketing material or similar documentation, including by providing customary representation letters, and (C) request the Company’s independent registered public accounting firm to reasonably cooperate with Parent and its Representatives, including by participating in accounting due diligence sessions at times and at locations reasonably acceptable to the Company and its independent registered public accounting firm;
(viii) subject to customary confidentiality provisions, provide customary authorization letters (in a form and on terms reasonably acceptable to the Company) to the Financing Sources authorizing the distribution of information relating to the Acquired Business to prospective lenders or investors, including, if requested, containing a representation to the Financing Sources that the public side versions of such documents, if any, do not include material non-public information about the Company or its Affiliates;
(ix) deliver notices of prepayment and/or notices for termination of commitments within the time periods required by the Credit Agreement and obtain payoff letters, lien terminations and releases and instruments of discharge, all in customary form, to be delivered at Closing providing for the payoff in full on the Closing Date of any amounts due under the Credit Agreement and for the termination of all obligations thereunder (other than other such obligations under the Credit Agreement that expressly by their terms survive such payoff, discharge and termination) and releasing, discharging and terminating any liens and other security interests created under any security documents in connection with the Credit Agreement and all related obligations thereunder and under each security documents (other than obligations under such security documents that expressly by their terms survive such payoff, discharge and termination);
(x) assisting in the preparation of, and executing and delivering, one or more credit agreements, unsecured notes, indentures and other definitive financing documents or other customary certificates (but not solvency certificates) and customary documents as may be reasonably requested by Parent which are necessary and customary in connection with the Debt Financing (which agreements, notes, indentures and other documents to which the Company is a party will be conditioned on the consummation of the Transactions);
(xi) consent to the use of the trademarks, service marks and logos of the Company or any of its Subsidiaries in connection with the Debt Financing; provided that such trademarks, service marks and logos are used solely in a manner that is not intended to or is not reasonably likely to harm or disparage the Company or any of its Subsidiaries; and
(xii) taking all other corporate actions, subject to the occurrence of the Closing, as may be reasonably necessary to permit the consummation of the Debt Financing. Notwithstanding the foregoing, (1) neither the Company other than as set forth in Section 7.03, none of ABI, Xxxxxx Parent nor any of its Subsidiaries their respective Affiliates shall be required to pay any fees, expenses commitment or costs or incur any liability or obligations in connection with the Debt Financing, unless Parent reimburses or is required to indemnify the Company and its Subsidiaries pursuant to this Agreement or otherwiseother similar fee, (2) none of the CompanyJV, its Subsidiaries or their respective officers, directors or employees shall be required to execute or enter into or perform under any agreement with respect to the Debt Financing that is not contingent upon the Closing occurring or that would be effective prior to the Effective Time Closing (other than authorization letters contemplated by Section 6.05(a)(viii)), clause (vii) of the preceding sentence) and (3) none nothing shall obligate ABI, Xxxxxx Parent or any of the Company, its Subsidiaries or their respective officers, directors or employees shall be required to deliver any certificate that such Person reasonably believes, in good faith, contains any untrue certifications or opinions, and (4) none of the Company, its Subsidiaries or their respective officers, directors or employees shall be required Affiliates to provide any legal opinion by its counsel, or to provide, or cause to be provided, any information or take, or cause to be taken, any action to the disclosure extent it would result in a violation of which is prohibited or restricted under Applicable material Law or the Company’s organizational documents or which is legally privileged or which is otherwise subject to the confidentiality provisions.
(b) The Company shall provide the Required Financial Information, together with the other information required under Section 6.05(a), to Parent in a manner that does not contain any untrue statement of a material fact or omit to state a material fact necessary to make such information, in light of the circumstances under which the statements contained in such information were made, not misleading. The Company shall notify Parent in writing if the Company determines that (i) any untrue statement of a material fact or omission Governmental Order of any material fact necessary to make such informationGovernmental Authority of competent jurisdiction, in light each case, applicable to ABI, Xxxxxx Parent or any of the circumstances under which the statements contained in such information were made, not misleading exists with regard to any such information, (ii) any Required Financial Information must be restated or (iii) the Company’s independent registered public accounting firm has withdrawn any audit opinion with respect to any financial statements contained in the Required Financial Information.
(c) Parent their respective Affiliates. Buyer shall, promptly upon written request by the CompanyABI or Xxxxxx Parent, as applicable, reimburse the Company ABI, Xxxxxx Parent and their respective Affiliates for all reasonable and documented out-of-pocket costs and expenses (including reasonable and documented attorneys’ fees) incurred by the Company or any of its Subsidiaries such Person in satisfying its obligations under this Section 6.055.11(a). Parent, HoldCo and Merger Sub ABI shall, on a joint and several basisexcept to the extent prohibited by the UK Code, indemnify and hold harmless use its reasonable best efforts to cause Xxxxxx Parent to consent to the Company use of all logos of Xxxxxx Parent and its Subsidiaries and their respective Representatives (each an “Indemnified Party”) from and against any and all losses, claims, damages, liabilities, costs, reasonable attorneys’ fees, judgments, fines, penalties and amounts (including amounts paid in settlement and all interest, assessments and other charges paid or payable in connection with the Financing; provided that such logos are used solely in a manner that is not intended to or in respect of any thereof), joint reasonably likely to harm or several, to which such Indemnified Party may become subject, under the Securities Act, the Exchange Act, other Federal disparage Xxxxxx Parent or state statutory or other laws or regulations or otherwise, insofar as such losses, claims, damages, liabilities costs, reasonable attorney’s fees, judgements fines, penalties, and amounts paid in settlement (or actions in respect thereof) arise out of or are based upon or suffered or incurred in connection with any action taken (or failure to act) by the Financing Sources, Parent, its Subsidiaries, or any of their respective Affiliates or the Company, any of its Subsidiaries or any the reputation or goodwill of their respective Representatives pursuant to this Section 6.05 (other than the use of any information provided by the Company, Xxxxxx Parent or any of its Subsidiaries Subsidiaries.
(b) If (i) (x) Xxxxxx Parent has not provided the Required Xxxxxx International Business Financial Information on or any before March 15, 2016 (the “Financial Statement Deadline”) or (y) such Required Xxxxxx International Business Financial Information is not Compliant as of their respective Representatives in writing for use in connection with the Debt Financing), except to date on which such Required Xxxxxx International Business Financial Information is first delivered by Xxxxxx Xxxxxx (the extent such losses, claims, damages, liabilities, costs, reasonable attorneys’ fees, judgments, fines, penalties and amounts paid in settlement are determined by a final non-appealable judgment of a court of competent jurisdiction to have arisen out of, or resulted from, the gross negligence or willful misconduct of, or a Willful Breach by, the Company, any of its Subsidiaries or any of their respective Representatives.“Initial Delivery Date”) or
Appears in 1 contract
Samples: Purchase Agreement
Financing Assistance. (a) The Prior to the Closing, the Company shall, and shall cause its Subsidiaries to, and shall to use its and their commercially reasonable efforts to cause each of their respective Representatives (including legal, tax, regulatory and accounting advisors) to, provide such cooperation as may be reasonably requested by Parent in connection with the arrangement of the Debt Financing (which term shall include, for purposes of this Section 6.03(a), any of the permanent financing referred to in the Debt Commitment Letters) (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries). Without limiting the generality of the foregoing sentence, which cooperation prior to the Closing, the Company shall, and shall cause its Subsidiaries to the extent requested, include:
use its and their commercially reasonable efforts to: (i) as promptly as reasonably practicable and in any event no later than provide information (financial or otherwise) relating to the tenth Business Day preceding the Closing Date (such date, the “Delivery Deadline”) provide Company to Parent and the Financing Sources with (A) all historical consolidated balance sheets and related audited and unaudited statements of income, comprehensive income, shareholders’ equity and cash flows of the Company and other historical financial information regarding the Company and its Subsidiaries, in either case required to be provided to the Financing Sources (including information to be used in the preparation of an information package regarding the business, operations, financial condition, financial projections and prospects of Parent and the Company customary or reasonably necessary for the completion of such financing) to the extent reasonably requested by Parent in connection with Parent’s preparation of customary offering or information documents to be used for the terms completion of any commitment letter or agreement entered into with any Financing Sourcethe Debt Financing, (Bii) cooperate and assist with the due diligence, rating agency processes and marketing efforts of Parent, its Representatives and the Financing Sources, including participating in a reasonable number of meetings, due diligence sessions and road shows, at times and at locations reasonably acceptable to the Company, (iii) reasonably assist Parent in preparing customary offering memoranda, rating agency presentations, lender and investor presentations, confidential information memoranda, financial statements, private placement memoranda, prospectuses, filings with the SEC and other similar documents, including delivery and consenting to the inclusion or incorporation in any SEC filing related to the Debt Financing or the Alternative Financing of (A) audited consolidated balance sheets and related audited statements of income, comprehensive income, shareholders’ equity and cash flows of the Company for each of the three fiscal years most recently ended more than 90 60 days prior to the Closing DateDate (and audit reports for such financial statements shall not be subject to any “going concern” qualifications), and (B) unaudited consolidated balance sheets and related unaudited statements of income, comprehensive income, shareholders’ equity and cash flows of the Company for each subsequent fiscal quarter ended more than 45 40 days prior to the Closing Date, all such audited and unaudited statements complying with the requirements of Form F-4 for persons being acquired and Regulation S-X under the Securities Act for a non-issuer entity whose financial statements are filed in a registered offering of securities solely to satisfy Rule 3-05 of Regulation S-X, without giving effect to Rule 3-05(b)(4) of Regulation S-X (clauses (A) and (B), collectively, the “Required Financial Information”) Date and (C) such other historical financial and other information regarding the Company and its Subsidiaries as Parent may reasonably request;
(ii) as promptly as reasonably practicable, and in any event no later than the Delivery Deadline, provide Parent and the Financing Sources with such information (financial or otherwise) relating to the Company and its Subsidiaries (including information to be used in the preparation of an information package regarding the business, operations and financial condition of Parent and the Company) reasonably necessary for Parent’s preparation of customary offering or information documents to be used for the completion of the Debt Financing;
(iii) cooperate and assist with the reasonable due diligence, rating agency processes and syndication and marketing efforts of Parent, its Representatives and the Financing Sources, including participating in a reasonable number of meetings (including one-on-one meetings with representatives of the Financing Sources, prospective lenders and prospective investors, on the one hand, and senior management and Representatives of the Company, in each case with appropriate seniority and expertise, on the other hand), due diligence sessions (including accounting due diligence sessions), drafting sessions and road shows, at reasonable times and on reasonable notice; provided that the Company and its Representatives will only be required to travel or attend any in person meetings for a period not to exceed five Business Days and each such Representative shall be reasonably compensated for his or her reasonable costs and expenses;
(iv) assist Parent in preparing customary offering memoranda, rating agency presentations, lender and investor presentations, confidential information memoranda, private placement memoranda, prospectuses, filings with the SEC and other similar documents prepared in connection with the Debt Financing, including delivery and consenting to the inclusion or incorporation of the Required Financial Information and all other historical financial and other information regarding the Company reasonably necessary to permit Parent to prepare pro forma financial statements customary for the bank financing and its Subsidiaries reasonably requested the debt securities offering contemplated by Parent for use in any offering or information documents to be prepared in connection with the Debt Financing or the Alternative Financing;
, (viv) make available, on a customary and reasonable basis and upon reasonable notice, appropriate personnel, including Representatives of the Company and its Subsidiaries, documents and information relating to the Company and its Subsidiaries, in each case, as may be reasonably requested by Parent, the Financing Sources, or as may be requested by the SEC in connection with the completion of the Debt Financing;
financing, (viv) provide to Parent and the Financing Sources promptly, and in any event at least five (5) Business Days prior to the Closing Date, all documentation and other information about the Company and its Affiliates requested in writing by Parent and required by the Financing Sources or regulatory authorities with respect to the Debt Financing under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act;
, that is required under the Debt Commitment Letters to the extent such documentation and other information is requested in writing to the Company at least 10 Business Days prior to the Closing Date, (vi) obtain any necessary consents from the Company’s independent public accounting firm in connection with any filings with the SEC, (vii) in connection with any securities offering contemplated as part of the Debt Financing or the Alternative Financing, (A) request obtain customary comfort letters from the Company’s independent registered public accounting firm (including customary “negative assurances”)firm, (B) request cause the Company’s independent registered public accounting firm to consent to the inclusion or incorporation of their audit reports with respect to the Required Financial Information financial statements of the Company provided pursuant to Section 6.03(a)(iii) in any filing or registration statement of Parent with the SEC or any prospectus, offering memoranda, private placement memoranda, marketing material or similar documentation, including by providing customary representation letters, letters and (C) request cause the Company’s independent registered public accounting firm to reasonably cooperate with Parent and its Representatives, including by participating in accounting due diligence sessions at times and at locations reasonably acceptable to the Company and its independent registered public accounting firm;
, (viii) subject to customary confidentiality provisions, provide customary authorization letters (in a form and on terms reasonably acceptable to the Company) to the Financing Sources authorizing the distribution of information to prospective lenders or investors, including, if requested, containing a representation to the Financing Sources that the public side versions of such documents, if any, do not include material non-public information about the Company or its Affiliates;
(ix) deliver notices of prepayment and/or notices for termination of commitments within the time periods required by the Credit Agreement and obtain customary payoff letters, lien terminations and releases letters and instruments of discharge, all in customary form, discharge to be delivered at Closing providing to allow for the payoff payoff, discharge and termination in full on the Closing Date of any amounts due under the Credit Agreement and for the termination of all obligations thereunder (other than other such obligations under the Credit Agreement that expressly by their terms survive such payoffAgreement, discharge and termination) and releasing, discharging and terminating any liens and other security interests created under any security documents in connection with the Credit Agreement and all related obligations thereunder and under each security documents (other than obligations under such security documents that expressly by their terms survive such payoff, discharge and termination);
(x) assisting in reasonably assist with the preparation ofof the definitive documentation for the Debt Financing, including by providing information reasonably necessary for the completion of any schedules thereto, in each case to the extent, and executing solely to the extent, such materials relate to information concerning the Company and deliveringits Subsidiaries, one (xi) provide or more credit agreementscause to be provided any customary certificates, unsecured notes, indentures and other definitive financing documents or other customary certificates (but not solvency certificates) and customary closing documents as may reasonably be reasonably requested by Parent which are necessary and customary in connection with the Debt Financing and the Alternative Financing and (which agreements, notes, indentures and other documents to which the Company is a party will be conditioned on the consummation of the Transactions);
(xixii) consent to the use of the trademarks, service marks and logos of the Company or any of its Subsidiaries in connection with the Debt Financing; Financing; provided that such trademarks, service marks and logos are used solely in a manner that is not intended to or is not reasonably likely to harm or disparage the Company or any of its Subsidiaries; and
(xii) taking all other corporate actions, subject to the occurrence of the Closing, as may be reasonably necessary to permit the consummation of the Debt Financing. Notwithstanding the foregoing, (1) neither the Company nor any of its Subsidiaries shall be required to pay any fees, expenses commitment or costs other similar fee or incur prior to the Closing any other liability or obligations obligation in connection with the Debt Financing, unless Parent reimburses or is required to reimburse or indemnify the Company and its Subsidiaries pursuant to this Agreement or otherwiseotherwise agrees to do so, (2) none of the Company, its Subsidiaries or their respective officers, directors or employees shall be required to execute or enter into or perform under any agreement with respect to the Debt Financing that is not contingent upon the Closing occurring or that would be effective prior to the Effective Time Closing (other than authorization letters contemplated by Section 6.05(a)(viii)clause (viii) of this Section 6.03(a) and for the avoidance of doubt, the boards of directors or other equivalent governing bodies of Parent, Merger Sub, and/or the Surviving Corporation shall enter into or provide any resolutions, consents, approvals or other closing arrangements on behalf of the Company and its Subsidiaries as may be required by the Financing Sources pursuant to the Debt Commitment Letter at, or as of, the Closing), and (3) none nothing shall obligate the Company or any of its Subsidiaries to provide, or cause to be provided, any legal opinion by its counsel, or to provide, or cause to be provided, any information or take, or cause to be taken, any action to the extent it would reasonably be expected, in the reasonable judgment of the Company, its Subsidiaries or their respective officers, directors or employees shall be required to deliver any certificate that such Person reasonably believes, result in good faith, contains any untrue certifications or opinions, and (4) none a violation of the Company, its Subsidiaries or their respective officers, directors or employees shall be required to provide any information the disclosure of which is prohibited or restricted under Applicable Law or the Company’s organizational documents or which is legally privileged or which is otherwise subject to the confidentiality provisionsloss of any privilege.
(b) The Company shall provide the Required Financial Information, together with the other information required under Section 6.05(a), to Parent in a manner that does not contain any untrue statement of a material fact or omit to state a material fact necessary to make such information, in light of the circumstances under which the statements contained in such information were made, not misleading. The Company shall notify Parent in writing if the Company determines that (i) any untrue statement of a material fact or omission of any material fact necessary to make such information, in light of the circumstances under which the statements contained in such information were made, not misleading exists with regard to any such information, (ii) any Required Financial Information must be restated or (iii) the Company’s independent registered public accounting firm has withdrawn any audit opinion with respect to any financial statements contained in the Required Financial Information.
(c) Parent shall, promptly upon written request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses (including reasonable and documented attorneys’ fees) incurred by the Company or any of its Subsidiaries in satisfying its obligations under this Section 6.05Section 6.03. Parent, HoldCo Parent and Merger Sub shall, on a joint and several basis, indemnify and hold harmless the Company and its Subsidiaries and their respective Representatives (each an “Indemnified Party”) from and against any and all losses, claims, damages, liabilities, costs, reasonable attorneys’ fees, judgments, fines, penalties and amounts (including amounts paid in settlement and (including all interest, assessments and other charges paid or payable in connection with or in respect of any thereof), joint or several, to which such Indemnified Party may become subject, under the Securities Act, the Exchange Act, other Federal or state statutory or other laws or regulations or otherwise, insofar as such losses, claims, damages, liabilities costs, reasonable attorney’s fees, judgements fines, penalties, and amounts paid in settlement (or actions in respect thereof) arise out of or are based upon or suffered or incurred in connection with any action taken (or failure to act) by the Financing Sources, Parent, its Subsidiaries, or any of their respective Affiliates or the Company, any of its Subsidiaries or any of their respective Representatives pursuant to this Section 6.05 Section 6.03 (other than the use of any information provided by the Company, any of its Subsidiaries or any of their respective Representatives in writing for use in connection with the Debt Financing), except to in the extent event such losses, claims, damages, liabilities, costs, reasonable attorneys’ fees, judgments, fines, penalties and amounts paid in settlement are determined by a final non-appealable judgment of a court of competent jurisdiction to have arisen out of, or resulted from, the gross negligence or willful misconduct of, or a Willful Breach by, of the Company, any of its Subsidiaries or any of their respective Representatives.
Appears in 1 contract
Samples: Merger Agreement (Aetna Inc /Pa/)
