Financing Cooperation. (a) Until the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan shall use its reasonable best efforts, and shall cause each of its Subsidiaries to use its reasonable best efforts, and shall use its reasonable best efforts to cause its and their respective officers, employees and advisors and other Representatives, including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie and its Subsidiaries such assistance as may be reasonably requested by AbbVie in writing that is customary in connection with the arranging, obtaining and syndication of the Financing, including using reasonable best efforts with respect to: (i) participating in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers); (ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type; (iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing; (iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing; (v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing; (vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources; (vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries; (viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion); (ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and (x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Notwithstanding anything to the contrary in this Section 7.9(a) or Section 7.9(b) below, (A) none of Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained in connection with syndication of the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover Rules.
Appears in 5 contracts
Samples: Transaction Agreement, Transaction Agreement, Transaction Agreement (Allergan PLC)
Financing Cooperation. (a) Until the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan shall use its reasonable best efforts, and shall cause each of its Subsidiaries to use its reasonable best efforts, and shall use its reasonable best efforts to cause its and their respective officers, employees and advisors and other Representatives, including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie and its Subsidiaries such assistance as may be reasonably If requested by AbbVie in writing that is customary in connection with a Stockholder or its Permitted Transferees, the arranging, obtaining and syndication of Company will provide the Financing, including using reasonable best efforts with respect to:
(i) participating in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material following cooperation (in each case, as all reasonable, documented out-of-pocket expenses incurred by the Company in connection with the foregoing, shall be borne by such Stockholder) in connection with the Stockholder and its Permitted Transferees obtaining any Permitted Loan: (i) entering into an issuer agreement (an “Issuer Agreement”) with each lender in customary form in connection with such transactions (which agreement may include, without limitation, agreements and obligations of the Company relating to procedures and specified time periods for effecting transfers and/or conversions upon foreclosure, agreements to not hinder or delay exercises of remedies on foreclosure, acknowledgments regarding corporate policy, if applicable, certain acknowledgments regarding securities law status of the pledge arrangements and a specified list of Competitors, Activist Investors and Restricted Persons) and subject to the consent of the Company (which will not be unreasonably withheld or delayed), with such changes thereto as are requested by such lender and customary confidentiality provisions and disclaimers);
for similar financings, (ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect using reasonable best efforts to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) remove any restrictive legends on certificates representing pledged Preferred Stock or Common Stock issued upon conversion of Preferred Stock and depositing any pledged Preferred Stock or Common Stock issued upon conversion of Preferred Stock in book entry form on the type that would be required by Regulation S-X books of The Depository Trust Company, in each case when eligible to do so (and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements providing any necessary indemnities to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), transfer agent in connection therewith) or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements without limiting the generality of clause (A), if such Preferred Stock is eligible for resale under Rule 144A, depositing such pledged Preferred Stock in book entry form on the books of The Depository Trust Company or other depository with customary for Financings of the applicable type;
Rule 144A restrictive legends, (iii) providing if so requested by such lender or counterparty, as applicable, re-registering the pledged Preferred Stock or Common Stock issued upon conversion of Preferred Stock in the name of the relevant lender, counterparty, custodian or similar party to AbbVie’s legal counsel a Permitted Loan, with respect to Permitted Loans solely as securities intermediary and only to the extent the Stockholder, its Permitted Transferees (or its or their Affiliates) continue to beneficially own such pledged Preferred Stock or Common Stock issued upon conversion of Preferred Stock, (iv) entering into customary triparty agreements with each lender and the Stockholder (and its independent auditors such customary documents and other customary information relating to Allergan Permitted Transferees and its Subsidiaries as may be reasonably requested in connection with and their delivery of any customary negative assurance opinions and customary comfort letters Affiliates) relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities delivery of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships Preferred Stock or Common Stock issued upon conversion of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating Preferred Stock to the repayment or refinancing of any indebtedness relevant lender for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (crediting to the extent required) evidence that notice relevant collateral accounts upon funding of any the loan and payment of the purchase price including a right for such repayment has been timely delivered lender as a third party beneficiary of the Company’s obligations hereunder to issue the holders Preferred Stock or Common Stock issued upon conversion of such indebtedness, in each case Preferred Stock upon payment of the purchase therefor in accordance with the terms of this Agreement and (v) such other cooperation and assistance as the definitive documents governing such indebtedness Stockholder and its Permitted Transferees may reasonably request (which cooperation and assistance, for the avoidance of doubt, shall not include any requirements that the Company deliver information, compliance certificates or any other materials typically provided by borrowers to lenders) that any such notice or payoff letter shall be expressly will not unreasonably disrupt the operation of the Company’s business. Anything in the preceding sentence to the contrary notwithstanding, the Company’s obligation to deliver an Issuer Agreement is conditioned on the Completion);
(ix) procuring consents Stockholder or its Permitted Transferee certifying to the reasonable use of all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested Company in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Notwithstanding anything to the contrary in this Section 7.9(a) or Section 7.9(b) below, (A) none the loan agreement with respect to which the Issuer Agreement is being delivered constitutes a Permitted Loan being entered into in accordance with this Agreement, the Stockholder or its Permitted Transferee has pledged the Preferred Stock and/or the underlying shares of Allergan nor any Common Stock as collateral to the lenders under such Permitted Loan and that the execution of its Subsidiaries shall be required to take or permit such Permitted Loan and the taking terms thereof do not violate the terms of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c))Agreement, (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (xB) to the extent required applicable, whether the registration rights under the Registration Rights Agreement, dated as of even date herewith, by Section 7.9(b)and among the Company and the Stockholders, applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating are being assigned to the execution thereof lenders under that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above)Permitted Loan, (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor the Stockholder, its Permitted Transferees and its and their controlled Affiliates acknowledge and agree that the Company will be relying on such certificate when entering into the Issuer Agreement and any inaccuracy in such certificate will be deemed a breach of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries and (unless waived by AbbVie), (iiiD) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries the Company is not required to incur any personal liability or material obligations other than as specifically set forth in the proceeding sentence. The Stockholder and its Permitted Transferees acknowledge and agree that the statements and agreements of the Company in an Issuer Agreement are solely for the benefit of the applicable lenders party thereto and that in any dispute between the Company and the Stockholder (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie Permitted Transferee) under this Agreement the Stockholder and its Permitted Transferees shall cause all non-public or other confidential information provided by or on behalf of Allergan or any of its Subsidiaries or Representatives pursuant not be entitled to this Section 7.9 to be kept confidential in accordance with use the Confidentiality Agreement; provided, that Allergan acknowledges statements and agrees that the confidentiality undertakings that will be obtained in connection with syndication agreements of the Financing will be Company in a form customary for use in an Issuer Agreement against the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover RulesCompany.
Appears in 4 contracts
Samples: Stockholders Agreement (Comscore, Inc.), Series B Convertible Preferred Stock Purchase Agreement (Comscore, Inc.), Series B Convertible Preferred Stock Purchase Agreement (Comscore, Inc.)
Financing Cooperation. (a) Until Parent shall, and shall cause its Affiliates to, use commercially reasonable efforts, subject to this Section 8.2, to obtain and consummate a financing to fund the earlier repayment in connection with the Closing of certain indebtedness of the Completion Company and its Subsidiaries, which financing shall be on terms and conditions and subject to documentation, in each case, in form and substance satisfactory to Parent in its sole discretion, (the valid termination “Financing”) as promptly as reasonably possible following the date of this Agreement pursuant to and in accordance with Article 9, Allergan shall use its reasonable best effortsAgreement.
(b) The Company shall, and shall cause each of its Subsidiaries to use its reasonable best effortsto, and shall use its reasonable best efforts to cause its and their respective officersRepresentatives to, employees and advisors and other Representatives, including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie and its Subsidiaries Parent such assistance customary cooperation, as may be reasonably requested by AbbVie Parent to assist Parent in writing that is arranging the Financing, which reasonable best efforts shall include:
(i) reasonable cooperation with customary in connection with the arranging, obtaining and syndication marketing efforts of Parent for all or any portion of the Financing, including using causing its management team, with appropriate seniority and expertise, and use its reasonable best efforts with respect to:
(i) participating to cause its external auditors to assist in preparation for and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority participate in a reasonable number of meetings, presentations, road shows, drafting due diligence sessions, due diligence drafting sessions and sessions with prospective lenders, investors and rating agencies, at times in each case, upon reasonable notice and at locations reasonably acceptable to Allergan mutually agreeable dates and upon times;
(ii) providing reasonable notice, (B) assisting assistance with AbbVie’s the preparation of customary materials for registration statementsrating agency presentations, road show materials, bank information memoranda, prospectuses and bank syndication materials, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations memoranda and similar documents (including the delivery, within forty (40) days of the end of each applicable fiscal quarter, of unaudited consolidated balance sheets and related consolidated statements of income and cash flows of the Company for each interim fiscal quarter ended since the last audited financial statements and at least forty-five (45) days prior to the Closing Date and the delivery of customary authorization and representation letters in connection therewith) customarily required in connection with the Financing (collectively, “Marketing Material”) marketing and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing syndication of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable typeFinancing;
(iii) providing using reasonable best efforts to AbbViefurnish Parent, within a reasonable amount of time following Parent’s legal counsel reasonable request, with information reasonably available to the Company relating to the Company and its independent auditors such customary documents Subsidiaries to the extent required to consummate the Financing, and subject to clause (d) below, providing reasonable assistance to Parent’s preparation of pro forma financial information; and
(iv) promptly furnishing Parent with all documentation and other customary information relating related to Allergan the Company and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (solely to the extent required) evidence that notice of required by any such repayment has been timely delivered Governmental Authority with respect to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Act.
(c) Notwithstanding anything to the contrary contained in this Agreement (including this Section 7.9(a8.2): (i) or nothing in this Agreement (including this Section 7.9(b8.2) below, shall require any such cooperation to the extent that (A) it would require the Company to pay any commitment or other fees, reimburse any expenses or otherwise incur any liabilities that are not reimbursed by Parent as provided in clause (d) below or give any indemnities prior to the Closing, (B) it would require the Company to take any action that in the good faith judgment of the Company unreasonably interferes in a material manner with the ongoing business or operations of the Company and/or its Subsidiaries, (C) it would require the Company or any of its Subsidiaries to enter into, execute, or approve any agreement or other documentation prior to the Closing or agree to any change or modification of any existing agreement or other documentation that would be effective prior to the Closing (other than the execution of customary authorization and representation letters and any agreements to be executed at the Closing), (D) it would require the Company to provide any financial statements, (E) it would require the Company to provide any information the disclosure of which is prohibited by or restricted under applicable Law, or (F) it would require the Company, any of its Subsidiaries or any of their respective boards of directors (or equivalent bodies) to approve or authorize the Financing or any documentation related thereto, (ii) none of Allergan nor the Company or any of its Subsidiaries shall be required to take provide, and Parent shall be solely responsible for, (A) the preparation of pro forma financial information, including pro forma cost savings, synergies, capitalization or permit other pro forma adjustments desired to be incorporated into any pro forma financial information (it being understood and agreed that the taking Company and its Subsidiaries shall assist Parent in Parent’s preparation of the pro forma financial information), (B) any action pursuant description of all or any component of the Financing, including any such description to this Section 7.9(abe included in any liquidity or capital resources disclosure or any “description of notes”, (C) projections, risk factors or Section 7.9(bother forward-looking statements relating to any component of such financing or (D) below subsidiary financial statements or any other information of the type required by Rule 3-09, Rule 3-10 or Rule 3-16 of Regulation S-X, and (iii) no action, liability or obligation (including any obligation to (i) pay any commitment or other fee fees or incur reimburse any liability expenses) of the Company, its Subsidiaries, or any of their respective Representatives under any certificate, agreement, arrangement, document or instrument relating to the Financing shall be effective until the Closing.
(other than third-party costs and expenses that are to be d) Parent shall (i) promptly reimbursed by AbbVie upon request by Allergan pursuant the Company, reimburse the Company for all of its reasonable and documented out-of-pocket fees and expenses (including reasonable and documented out-of-pocket attorneys’ fees) incurred by the Company, any of its Subsidiaries or any of its or their Representatives in connection with any cooperation contemplated by this Section 8.2 and (ii) indemnify and hold harmless the Company, its Subsidiaries and its and their Representatives against any claim, loss, damage, injury, liability, judgment, award, penalty, fine, Tax, cost (including cost of investigation), expense (including reasonable and documented out-of-pocket attorneys’ fees) or settlement payment, in each case, incurred as a result of, or in connection with, such cooperation or the Financing, except to the extent arising out of gross negligence, bad faith or willful misconduct of the Company, its Subsidiaries or its and their Representatives. It is understood that the condition precedent set forth in Section 7.9(c9.2(b)), as applied to the Company’s obligations under this Section 8.2, shall be deemed to be satisfied unless (i) the Company shall have Willfully Breached this Section 8.2, (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification such Willful Breach shall not have been cured within 10 days after receipt of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution written notice thereof that would not conflict with applicable Law from Parent and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access such Willful Breach shall have been the primary cause of Parent’s failure to or disclose information obtain the Financing. Parent acknowledges and agrees that Allergan or any obtaining the Financing is not a condition to Closing.
(e) The Company hereby consents to the use of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided trademarks and logos in connection with the Financing; provided, that Allergan shall, such trademarks and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed logos are used solely in a manner that would is not result in the loss of any such privilege), (iv) deliver intended to or cause its Representatives reasonably likely to deliver any legal opinion harm or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result disparage in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, manner the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan Company or any of its Subsidiaries or Representatives pursuant the reputation or goodwill of the Company or any of its Subsidiaries.
(f) Notwithstanding anything to the contrary contained in this Agreement, nothing contained in this Section 7.9 8.2 shall require, and in no event shall the commercially reasonable efforts of Parent be deemed or construed to be kept confidential in accordance with require Parent to pay any fees to the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained in connection with syndication of lenders or increase any interest rates or original issue discounts or upfront fees applicable to the Financing will be in a form customary for use in the syndication excess of acquisition-related debt during a takeover offer period in compliance with the requirements an amount acceptable to Parent or agree to terms not acceptable to Parent, whether to secure waiver of the Panel and the Takeover Rulesany conditions contained therein or otherwise.
Appears in 4 contracts
Samples: Merger Agreement (U.S. Well Services, Inc.), Merger Agreement (U.S. Well Services, Inc.), Merger Agreement (ProFrac Holding Corp.)
Financing Cooperation. (a) Until Prior to the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9Closing, Allergan shall use its reasonable best effortsSeller shall, and shall cause each of its Subsidiaries to use its reasonable best effortsto, and shall use its reasonable best efforts to cause its and their respective officersRepresentatives to, employees provide all cooperation and advisors and other Representativesinformation, including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie and its Subsidiaries such assistance as may be in each case that is reasonably requested by AbbVie in writing that is customary Purchaser in connection with the arranging, obtaining and syndication of the Financing, including using reasonable best efforts with respect toincluding:
(i) participating furnishing to Purchaser such information regarding the Business as is reasonably requested in and assisting writing by Purchaser (A) in connection with the due diligence, syndication arrangement or other marketing consummation of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation reasonably necessary to permit Purchaser to prepare pro forma financial statements customarily included in marketing and offering documents for an offering of customary materials for securities of Purchaser on a registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection statement filed with the Financing (collectivelySEC, “Marketing Material”) and due diligence sessions related thereto, or (C) delivering and consenting necessary to satisfy the inclusion or incorporation conditions set forth in any SEC filing related the Debt Commitment Letter;
(ii) furnishing to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering Parties customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material letters (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie authorizing the distribution of information and its containing a customary representation to the Financing Sources with historical financial and other customary Parties that the public side versions of such documents, if any, do not include material non-public information (collectivelyabout the Business, the “Financing Information”) with respect to Allergan and Seller, its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable typetheir respective securities;
(iii) providing using reasonable best efforts to AbbViecause Seller’s legal counsel independent accountants to provide customary assistance and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be cooperation reasonably requested by Purchaser with any offering of securities, including participating in connection with their delivery of customary due diligence sessions and providing any customary “comfort” letters (including customary “negative assurance opinions and customary assurance” comfort letters relating to the for any applicable Financing);
(iv) causing Allergan’s independent auditors reasonably assisting Purchaser in the preparation of customary offering and marketing documents (and any supplements thereto) in connection with any Financing, including designating whether any information provided to provide customary cooperation with the FinancingPurchaser constitutes material non-public information;
(v) obtaining reasonably cooperating with any customary due diligence process as reasonably requested by Purchaser or the consents Financing Parties, including participating in a reasonable number of Allergan’s independent auditors to use their audit reports on due diligence sessions, and cooperating with the audited Historical Financial Statements customary marketing efforts of Allergan and to references to such independent auditors as experts Purchaser, in any Marketing Material and registration statements and related government filings filed or used each case, in connection with the any Financing;; and
(vi) obtaining Allerganreasonably cooperating with Purchaser’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos legal counsels in connection with the Financing (provided any legal opinions that such logos are used solely in a manner that is not intended legal counsels may be required to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date deliver in connection with the Financing that relates to applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Notwithstanding anything to the contrary in this Section 7.9(a) or Section 7.9(b) below, (A) none of Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained in connection with syndication of the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover RulesFinancing.
Appears in 3 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Broadcom Inc.), Asset Purchase Agreement (Symantec Corp)
Financing Cooperation. (a) Until the earlier of the Completion and the valid termination For purposes of this Agreement pursuant Section 6.10, the term “Financing” shall include any Permanent Financing (as defined in the Financing Letter), whether for debt, equity or otherwise. Prior to and in accordance with Article 9the Closing, Allergan shall use its reasonable best efforts, and shall cause each of its Subsidiaries to use its reasonable best effortsSeller shall, and shall use its reasonable best efforts to cause each of its Affiliates and their respective officersRepresentatives to, employees and advisors and other Representatives, including legal and accounting advisors, to use their reasonable best efforts, efforts to provide to AbbVie and its Subsidiaries Buyer such assistance as may be cooperation reasonably requested by AbbVie in writing that is customary Buyer and reasonably required in connection with the arranging, obtaining and syndication of Financing or the Alternate Financing, including using reasonable best efforts with respect to:(to the extent reasonably requested and reasonably required):
(i) participating in a customary and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road showsdue diligence sessions, drafting sessions, due diligence sessions road shows and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, ;
(Bii) assisting with AbbVie’s the preparation of customary materials for registration statementsrating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations prospectuses (registered or otherwise) and similar documents required for the Financing, including execution and delivery of customary representation letters in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing an audit of the historical Business and auditors comfort letter;
(iii) as promptly as reasonably practical, and in no event later than March 31, 2013, furnishing Buyer with (x) audited consolidated financial balance sheets for the Business as at December 31, 2011 and 2012, and (y) audited statements of income and cash flows for the Business for the three (3) years ended December 31, 2012 and (z) within forty-five (45) days of the end of the relevant fiscal quarter, unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization lettersfor each fiscal quarter ending after January 1, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information 2013 (collectively, the “Carve-Out Financials”);
(iv) in addition to the information required pursuant to clause (iii), above, as promptly as reasonably practical, furnishing Buyer and the other parties to the Financing Information”) Letter with respect to Allergan financial and its Subsidiaries other information regarding the Business and the Assets as is may be reasonably requested by AbbVie or its Financing Sources and customarily required Buyer (including in Marketing Material for Financings connection with Buyer’s preparation of the applicable typepro forma financial statements), including all Historical Financial Statements unaudited interim financial statements, financial data, projections, audit reports and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under of the Securities Act if of 1933 for a registered public offering, and of type and form customarily included in private placements under Rule 144A, to consummate the offering(s) of debt or equity securities contemplated by the Financing, or as otherwise reasonably required in connection with the Financing, or as otherwise necessary in order to assist in receiving customary “comfort” (including “negative assurance” comfort) from independent accountants in connection with the offering(s) of debt or equity securities contemplated by the Financing were incurred by AbbVie (all such information in clause (iii) and registered on Form S-3 under the Securities Actthis clause (iv), including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any Carve-Out Financials, the “going concern” qualificationsRequired Information”), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iiiv) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries the Business that is reasonably available to it to assist in the preparation of any credit agreements, indentures, purchase agreements, currency or interest hedging arrangements, other definitive financing documents, officer’s certificates, customary closing documents, or other certificates or documents with respect to the Financing contemplated by the Financing as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financingby Buyer;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters furnishing Buyer and assistance with the accounting due diligence activities of their Financing sources as promptly as practicable all financial information required to be delivered pursuant to the Financing SourcesLetter and monthly financial statements for the Business (to the extent prepared in the ordinary course of business);
(vii) causing assisting Buyer to obtain waivers, consents, estoppels and approvals from other parties to Contracts, material Leases and Easements, and Encumbrances to which the Financing to benefit from Assets or the existing lender relationships of Allergan and its Subsidiaries;Business are bound; and
(viii) providing documents cooperating with Buyer in its efforts to obtain accountants’ comfort Letter, consents, legal opinions, surveys, appraisals, engineering reports, environmental and other inspections, title insurance and other documentation and items relating to the Financing, as reasonably requested by AbbVie or the Financing Sources relating Buyer; provided that (A) nothing herein shall require such cooperation to the repayment or refinancing of any indebtedness for borrowed money of Allergan extent it would require Seller or any of its Subsidiaries Affiliates to be repaid waive or refinanced on the Completion Date and the release amend any terms of related liens and/or guarantees (if any) effected therebythis Agreement, including customary payoff letters and (to the extent required) evidence that notice of incur any such repayment has been timely delivered to the holders of such indebtednessLiabilities, pay any fees, reimburse any expenses, in each case in accordance case, with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents respect to the reasonable use Financing, prior to the Closing for which it has not received prior reimbursement by or on behalf of all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm Buyer, or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan would cause Seller or any of its Subsidiaries); and
Affiliates to breach this Agreement or become unable to satisfy a condition to the Closing, (xB) providing at least three (3) Business Days in advance of nothing herein shall require such cooperation from Seller or its Affiliates to the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection extent it would unreasonably interfere with the Financing that relates ongoing operations of Seller or its Affiliates and (C) there shall be no action, Liability or obligation of Seller or its Affiliates under any certificate, agreement, arrangement, document or instrument relating to applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACTFinancing. Notwithstanding anything to the contrary in this Section 7.9(a6.10, neither Seller nor its Affiliates shall be in breach of the covenant set forth in this Section 6.10 if it has acted in good faith to comply with the cooperation and assistance set forth herein.
(b) Buyer shall indemnify the Seller Indemnitees from, against and in respect of any Losses imposed on, sustained, incurred or Section 7.9(b) belowsuffered by, (A) none of Allergan nor or asserted against, any of its Subsidiaries shall be required to take them, directly or permit indirectly relating to, arising out of or resulting from the taking arrangement of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c))the Financing, (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification financing and/or the provision of any existing agreement, certificate, document or instrument, information utilized in each case that would be effective prior connection therewith to the Completion Date or would be effective if the Completion does not occur fullest extent permitted by applicable Legal Requirement.
(except (xc) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of Seller will use its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information update Required Information provided to be disclosed in a manner that would not result in the loss of any such privilege), Buyer pursuant to clauses (iii) and (iv) deliver of Section 6.10(a) as may be necessary such that the Required Information does not contain any untrue statement of material fact or cause its Representatives omit to deliver state any legal opinion or negative assurance letter (exceptmaterial fact necessary in order to make the statements made therein, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered))under which they were made, (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained in connection with syndication of the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover Rulesnot misleading.
Appears in 3 contracts
Samples: Purchase and Sale Agreement (Southern Union Co), Purchase and Sale Agreement (Laclede Group Inc), Purchase and Sale Agreement (Laclede Gas Co)
Financing Cooperation. (a) Until the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan The Company shall use its reasonable best efforts, and shall cause each of its Subsidiaries to use its reasonable best effortsreasonably cooperate in connection with the arrangement of (i) the Debt Financing, (ii) any bridge loan financing in replacement of all or any portion of the Debt Financing and shall use its reasonable best efforts to cause its and their respective officers(iii) any debt or equity financings of the types contemplated by the Debt Commitment Letter as in effect as of the date hereof in replacement of all or any portion of the Debt Financing, employees and advisors and other Representativesin each case, including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie and its Subsidiaries such assistance as may be reasonably requested by AbbVie Parent (the financings described in writing clauses (i), (ii) and (iii) collectively, the “Financing”); provided, that is customary in connection such requested cooperation does not unreasonably interfere with the arranging, obtaining and syndication ongoing operations of the FinancingCompany or its Subsidiaries. Such cooperation by the Company and its Subsidiaries shall include, including at the reasonable request of Parent, using their reasonable best efforts with respect to:
(i) participating in furnish such financial statements and assisting with other financial data and other information relating to the due diligence, syndication Company and its Subsidiaries and requested by Parent or other marketing of the its Representatives as may be reasonably necessary or advisable to consummate any Financing, including using reasonable best efforts with respect financial statements, financial data, projections, audit reports and other information (x) constituting audited financial statements relating to the Company and its Subsidiaries for the most recent fiscal year ended at least sixty (A60) days prior to the participation by members Closing Date and unaudited financial statements relating to the Company and its Subsidiaries for any quarterly interim period or periods (other than the fourth fiscal quarter) ended after the date of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times its most recent audited financial statements and at locations reasonably acceptable least forty (40) days prior to Allergan the Closing Date (and upon reasonable notice, the corresponding periods of the prior fiscal year) and (By) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents as otherwise required in connection with the Financing Financing; provided, that the Company’s public filings with the SEC under the 1934 Act of any such financial statements shall satisfy the requirements of subclause (collectively, “Marketing Material”x) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to extent containing the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers)information described therein;
(ii) timely furnishing AbbVie cause its independent accountants to cooperate with any Financing sources consistent with such independent accountants’ customary practice and its Financing Sources with historical financial and other obtain customary information accountants’ “comfort letters” (collectively, the including customary “Financing Informationnegative assurances”) with respect and customary consents to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings the inclusion of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(viiii) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with provide information related to the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan Company and its Subsidiaries;
(viii) providing documents Subsidiaries reasonably requested by AbbVie or the Financing Sources relating necessary to the repayment or refinancing of any indebtedness for borrowed money of Allergan assist Parent or any of its Subsidiaries to be repaid Affiliates in the preparation of one or refinanced on the Completion Date more confidential information memoranda, offering memoranda and the release other marketing and syndication materials reasonably requested by Parent or any of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion)its Affiliates;
(ixiv) procuring consents to provide the reasonable use by Parent and its Affiliates of all the Company’s and its Subsidiaries’ logos for syndication and underwriting, as applicable, of Allergan’s logos in connection with the Financing (provided subject to advance review of and consultation with respect to such use); provided, that such logos are used solely in a manner that is reasonable and customary for such purposes and that is not intended to and is not or reasonably likely to harm or disparage Allergan the Company or any of its Subsidiaries or the reputation or goodwill of Allergan the Company or any of its Subsidiaries); andSubsidiaries or any of their respective products, services, offerings or intellectual property rights;
(xv) providing participate (and cause senior management and representatives, with appropriate seniority and expertise, to participate) in a reasonable and limited number of meetings, presentations and road shows with prospective Financing sources and in due diligence sessions, and otherwise cooperate with the Financing sources’ documentary due diligence, to the extent customary and reasonable;
(vi) provide information reasonably necessary to assist Parent or any of its Affiliates in its preparation of material relating to the Company and its Subsidiaries for rating agency presentations;
(vii) provide, at least three (3) Business Days in advance of prior to the Completion Date such Acceptance Time, all documentation and other information about Allergan the Company and its Subsidiaries as is reasonably requested in writing required by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Notwithstanding anything Act, to the contrary extent reasonably requested by any Financing source at least eight (8) Business Days prior to the anticipated Acceptance Time;
(viii) cooperate with Parent, Buyer and any Financing sources to ensure that, to the extent practicable and appropriate, any syndication efforts in this connection with the Financing benefit from the Company’s and its Subsidiaries’ existing financing relationships;
(ix) supplement the written or formally presented information (other than projections and other forward-looking materials and information of a general economic or industry specific nature) provided by the Company or its Subsidiaries to the extent such information contains any material misstatement of fact or omits to state any material fact necessary to make such information, taken as a whole, not misleading in any material respect promptly after gaining knowledge thereof;
(x) cooperate with Parent’s and Buyer’s legal counsel in connection with any legal opinions that may be required to be delivered in connection with the Financing; and
(xi) prevent the syndication, incurrence or issuance, or any attempt to syndicate, incur or issue, or any announcement or authorization of the announcement of the syndication, incurrence or issuance, of any debt facility or any debt security of the Company or any of its Subsidiaries, except as otherwise permitted under the Debt Commitment Letter or under Section 7.9(a) or Section 7.9(b) below5.01; provided, (A) none of Allergan that neither the Company nor any of its Subsidiaries nor any of their respective Affiliates or Representatives shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (iA) pay any commitment or other fee fees, in each case, in connection with any Financing, (B) give any indemnities in connection with any Financing, (C) take any action that, in the good faith determination of the Company, would unreasonably interfere with the conduct of the business of the Company and its Subsidiaries or incur create an unreasonable risk of damage or destruction to any liability property or assets of the Company or any of its Subsidiaries, (other than third-D) provide (i) any information the disclosure of which is prohibited or restricted under applicable Law or subject to legal privilege or (ii) any information with respect to which the Company or any of its Subsidiaries owes a duty of confidentiality to a third party costs (it being understood, in that case, that the Company shall, to the extent permitted by such duty of confidentiality, inform Parent that it is not providing certain information as a result of such a duty and expenses that are shall use commercially reasonable efforts to be promptly reimbursed by AbbVie upon request by Allergan pursuant obtain the consent of such third party to Section 7.9(c)the Company’s and its Subsidiaries’ disclosure of such information to Parent, Buyer and its Financing sources), (iiE) execute take any action that would conflict with or deliver any definitive financing violate its organizational documents or any other applicable Law or would result in a violation or breach of, or default under, any material agreement to which the Company or any of its Subsidiaries is a party or (F) execute any agreement, certificate, document or instrument, or agree instrument pursuant to this Section 7.07(a) with respect to any change to or modification of any existing agreementFinancing that is not contingent on the Closing.
(b) Parent and Buyer shall, certificatepromptly upon request by the Company, document or instrumentreimburse the Company for all out-of-pocket costs and expenses incurred by the Company, its Subsidiaries and its and their respective Representatives in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict connection with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered their respective obligations pursuant to this Section 7.07. Parent shall indemnify and hold harmless the clause Company, its Subsidiaries and their respective Representatives, from and against any and all losses suffered or incurred by any of them in connection with any Financing and any information utilized in connection therewith (i)(D) above), (iii) provide access to other than material misstatements or disclose omissions in information that Allergan provided by the Company or any of its Subsidiaries reasonably determines would jeopardize for use in any attorney-client privilege such Financing), except to the extent arising out of Allergan gross negligence or willful misconduct of the Company or any of its Subsidiaries Subsidiaries.
(provided that Allergan c) The Company shall, and shall cause its Subsidiaries to, deliver all notices, reasonably cooperate with Parent and take all other actions reasonably requested by Parent to facilitate the termination at the Closing of all commitments in respect of the Credit Agreement, the repayment in full on the Closing Date (or in the case of any letters of credit, cash collateralization, to the extent that Parent shall not have entered into an alternative arrangement with the issuing bank) of all obligations in respect of the indebtedness under the Credit Agreement, and the release on the Closing Date of any Liens securing all such indebtedness and guarantees in connection therewith. In furtherance and not in limitation of the foregoing, the Company and its Subsidiaries shall use their respective reasonable best efforts and shall reasonably cooperate with Parent to cause any such information obtain and deliver to be disclosed in a manner that would not result in Parent at least three (3) Business Days prior to the loss of any such privilegeClosing Date an executed payoff letter with respect to the Credit Agreement (the “Payoff Letter”), in form and substance customary for transactions of this type, from the applicable agent on behalf of the Persons to whom such indebtedness is owed, which Payoff Letter together with any related release documentation shall, among other things, include the payoff amount and provide that Liens (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (exceptand guarantees), if any, granted in connection with the entry into an Allergan Supplemental Indenture Credit Agreement relating to the assets, rights and properties of the Company and its Subsidiaries securing such indebtedness shall, upon the payment of the amount set forth in the Payoff Letter at or prior to the Closing, be released and terminated. The obligations of the Company pursuant to this Section 7.07(c) shall be subject to Parent providing all funds required by Section 7.9(b)to effect all such repayments and cash collateralization of (or alternative arrangement with respect to) letters of credit at or prior to the Closing.
(d) At the request of Parent, Allergan the Company shall, and shall cause its Subsidiaries to, issue at the time requested by Parent (which time may be prior to the Closing Date) one or more notices to effect the optional redemption or prepayment of all of the outstanding aggregate principal amount of the 2022 Notes in accordance with the terms of the Indenture on (or, at the option of Parent, following) the Closing Date; provided, that to the extent such notice can be conditioned on the occurrence of the Closing, it will be so conditioned. The Company and its Subsidiaries shall, or shall cause their counsel to, on or prior to the Closing Date, furnish legal opinions in customary form and scope relating to the Company and its Subsidiaries or required by the Indenture in connection with the matters contemplated by this Section 7.07(d).
(e) Each of Parent and Buyer shall use their respective reasonable best efforts to cause counsel obtain the Financing in an amount sufficient, together with any other sources available to Allergan or its Subsidiaries, as applicableParent and Buyer, to deliver a customary opinion of counsel provide Buyer funds sufficient to consummate the trustee under Transactions and to pay the applicable Indenture that related fees and expenses on the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of Closing Date. Parent shall give the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach Company prompt notice upon becoming aware of, or a receiving notice or other communication with respect to, any material breach of or default under, or any event or circumstance that (with or without notice, lapse of time or both) could reasonably be expected to give rise to any material Contract to which Allergan breach of or default under, the Debt Commitment Letter by a party thereto or any termination, withdrawal or rescission of its Subsidiaries the Debt Commitment Letter.
(f) Parent and Buyer acknowledge and agree that the obtaining of any Financing is not a partycondition to the Closing. For the avoidance of doubt, the Organizational Documents if any Debt Financing has not been obtained, Parent and Buyer shall continue to be obligated, prior to any valid termination of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan or any of its Subsidiaries or Representatives this Agreement pursuant to this Section 7.9 8.01, and subject to be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained in connection with syndication fulfillment or waiver of the Financing will be Offer Conditions set forth in a form customary for use in Annex I, to complete the syndication of acquisition-related debt during a takeover offer period in compliance with Offer and consummate the requirements of the Panel and the Takeover RulesTransactions.
Appears in 3 contracts
Samples: Purchase Agreement (Thermo Fisher Scientific Inc.), Purchase Agreement (Patheon N.V.), Purchase Agreement (Patheon N.V.)
Financing Cooperation. (a) Until Prior to the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9Closing Date, Allergan shall use its reasonable best effortsSeller shall, and shall cause each of its Subsidiaries to use its reasonable best effortsthe General Partner and the Partnership Entities to, and shall use its commercially reasonable best efforts to cause its and their respective officersRepresentatives to, employees and advisors and other Representativesprovide such reasonable cooperation in connection with any financing by the Acquiror Parties or any of their respective Affiliates to finance the transactions contemplated by this Agreement, including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie and its Subsidiaries such assistance in each case as may be reasonably requested by AbbVie the Acquiror Parties. Without limiting the generality of the foregoing, but subject to Section 6.11(b), Seller shall, and shall cause the General Partner and the Partnership Entities to, and shall use commercially reasonable efforts to cause their respective Representatives to, upon reasonable request (i) furnish the report of the General Partner’s and the MLP’s auditor on the audited consolidated financial statements of the General Partner and the Partnership Entities and use commercially reasonable efforts to obtain the consent of such auditor to the use of such report, including in writing documents filed with the SEC under the Securities Act, in accordance with normal custom and practice and use commercially reasonable efforts to cause such auditor to provide customary comfort letters to the underwriters, initial purchasers or placement agents, as applicable, in connection with any such financing; (ii) furnish any additional financial statements, schedules, business or other financial data readily available and relating to the General Partner and the Partnership Entities reasonably requested by the Acquiror Parties or their respective Representatives as may be reasonably necessary to consummate any such financing; (iii) provide reasonable direct contact between (x) senior management and advisors, including auditors, of the General Partner and the Partnership Entities and (y) the proposed lenders, underwriters, initial purchasers or placement agents, as applicable, and/or the Acquiror Parties’ auditors, as applicable, in connection with, the financing, at reasonable times and upon reasonable advance notice; (iv) make available senior management of the General Partner to provide reasonable assistance with the Acquiror Parties’ preparation of business projections, financing documents, pro forma financial information, pro forma financial statements and offer materials; (v) cooperate with the Acquiror Parties’ legal counsel in connection with customary legal opinions that is the Acquiror Parties’ legal counsel may be required to deliver in connection with such financing; (vi) provide customary information, documents, authorization letters, opinions and certificates, enter into customary agreements (including indentures or supplemental indentures) and take other actions that are customary in connection with the arrangingfinancing and necessary to permit the Acquiror Parties to fulfill conditions or obligations under the financing documents; provided that such agreements entered into shall be conditioned upon, obtaining and syndication of shall not take effect until, the Financing, including using reasonable best efforts with respect to:
Closing Date; (ivii) participating assist in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank one or more confidential information memoranda, prospectuses, rating agency presentations offering memoranda and similar documents required in connection with other marketing and syndication materials reasonably requested by the Financing Acquiror Parties; (collectively, “Marketing Material”viii) and due diligence sessions related thereto, (C) delivering and consenting to permit the inclusion or incorporation in any SEC filing related to the Financing Acquiror Parties’ reasonable use of the historical audited consolidated financial statements MLP’s logos for syndication and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each caseunderwriting, as applicable, in connection with any such financing (subject to customary confidentiality provisions advance review of and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) consultation with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualificationssuch use), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Financing (; provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan the General Partner or its Subsidiaries any of the Partnership Entities or the reputation or goodwill of Allergan the General Partner or any of its Subsidiariesthe Partnership Entities; (ix) participate in a reasonable number of meetings and presentations with prospective lenders and investors, as applicable (including the participation in such meetings of the General Partner’s senior management); and
and (x) providing at least three (3) Business Days use commercially reasonable efforts to assist in advance of procuring any necessary rating agency ratings or approvals. Neither the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to applicable “know your customer” and anti-money laundering rules and regulationsGeneral Partner, including without limitation, the USA PATRIOT ACT. Notwithstanding anything to the contrary in this Section 7.9(a) or Section 7.9(b) below, (A) none of Allergan nor any of its Subsidiaries Partnership Entity shall be required to take make any representation or permit warranty in connection with any financing by the taking Acquiror Parties or any of any action their respective Affiliates to finance the transactions contemplated by this Agreement prior to the Closing Date (other than in a customary authorization and representation letter).
(b) Notwithstanding anything in this Section 6.11 to the contrary, in fulfilling its obligations pursuant to this Section 7.9(a) or Section 7.9(b) below to 6.11, (i) pay neither the General Partner, nor any commitment or other fee or incur Partnership Entity shall be required to provide any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to cooperation under this Section 7.9(c)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) 6.11 to the extent required by Section 7.9(b), applicable Allergan Supplemental Indenturesthat such cooperation would (A) unreasonably interfere with the ongoing operations of the General Partner or the Partnership Entities, (yB) customary officers’ certificates relating cause any condition to closing set forth in Article VII of this Agreement to fail to be satisfied or otherwise cause any breach of this Agreement, (C) require the execution thereof Seller, the General Partner or any Partnership Entity to take any action that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or violate any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan their Organizational Documents or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not Law or result in the loss of any legal or other privilege or (D) result in any officer or director of the Seller, the General Partner or any Partnership Entity incurring any personal liability with respect to any matters relating to any such privilegefinancing; and (ii) the Acquiror Parties shall, promptly upon request by Seller, reimburse Seller for all reasonable and documented out-of-pocket costs incurred by Seller, the General Partner or the Partnership Entities (and their respective Representatives) in connection with such cooperation. Each of the Acquiror Parties acknowledges and agrees that neither the General Partner nor any Partnership Entity shall incur any liability to any Person under any financing by the Acquiror Parties or any of their respective Affiliates or any cooperation provided under this Section 6.11 prior to the Closing Date (other than to the extent related to information provided to the Acquiror Parties in writing by Seller pursuant to this Section 6.11). The Acquiror Parties shall indemnify and hold harmless Seller, (iv) deliver the General Partner and the Partnership Entities from and against any and all losses or cause its Representatives to deliver any legal opinion damages actually suffered or negative assurance letter (except, incurred by them directly in connection with the entry into an Allergan Supplemental Indenture required arrangement of any such financing (other than to the extent related to information provided by Section 7.9(b)Seller, Allergan shallthe General Partner, and shall cause its Subsidiaries to, use the Partnership Entities or their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith Representatives).
(provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (vc) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty Notwithstanding anything in this Agreement to be breached the contrary, in no event will the financing contemplated by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach ofthis Section 6.11, or a default under, any material Contract to which Allergan or any compliance by the Parties with the provisions of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan or any of its Subsidiaries or Representatives pursuant to this Section 7.9 6.11, be deemed to be kept confidential or operate in accordance with any way as a condition to the Confidentiality Agreement; provided, that Allergan acknowledges Closing or to modify the representations and agrees that the confidentiality undertakings that will be obtained in connection with syndication warranties of the Financing will be Acquiror Parties set forth in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover RulesSection 5.6.
Appears in 3 contracts
Samples: Purchase Agreement (USA Compression Holdings, LLC), Purchase Agreement (Energy Transfer Partners, L.P.), Purchase Agreement (Energy Transfer Equity, L.P.)
Financing Cooperation. (a) Until From the date of this Agreement until the earlier of (x) the Completion Closing Date and the valid (y) termination of this Agreement pursuant to and in accordance with Article 9VII, Allergan shall use its reasonable best effortsthe Company shall, and shall cause each of its Subsidiaries to to, use its commercially reasonable best efforts, and shall use its reasonable best efforts to cause its and their respective officers, employees and advisors and other Representatives, including legal and accounting advisors, to use their reasonable best effortsin each case at Parent’s sole expense, to provide to AbbVie and its Subsidiaries Parent such assistance cooperation as may be customary and reasonably requested by AbbVie necessary to assist Parent in writing that is customary arranging financing in connection with the arrangingTransactions (the “Financing”), obtaining and syndication which commercially reasonable efforts shall include:
(i) providing reasonable cooperation with the marketing efforts of Parent for all or any portion of the Financing, including using reasonable best efforts with respect to:
(i) participating in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by causing members of its senior management of Allergan team with appropriate seniority and expertise, and using its reasonable efforts to cause its external auditors, to assist in preparation for and to participate in a reasonable number of meetings, presentations, road showsdue diligence sessions, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times in each case, upon reasonable notice and at locations mutually agreeable dates and times;
(ii) providing financial and other pertinent information regarding the Company and its Subsidiaries that is reasonably acceptable requested by Parent in order to Allergan and upon reasonable notice, (B) assisting with AbbVie’s assist in the preparation of customary materials for rating agency presentations, road show materials, bank information memoranda, registration statements, prospectuses, pricing supplements, and bank syndication materials, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations memoranda and similar documents customarily required (which may incorporate, by reference, periodic and current reports filed by the Company with the SEC) in connection with the Financing (collectively, “Marketing Material”) marketing and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing syndication of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable typeFinancing;
(iii) providing using reasonable efforts to AbbVie’s legal cause their independent accountants and local and internal counsel to provide customary and its independent auditors such customary documents and other customary information relating reasonable assistance to Allergan and its Subsidiaries as may be reasonably requested Parent, including in connection with their delivery providing customary review of any customary negative assurance opinions interim financial statements as provided in Statement of Accounting Standards No. 100), and customary comfort letters relating to the Financingletters;
(iv) causing Allergan(A) providing audited consolidated annual balance sheets and related statements of income, comprehensive income and cash flows of the Company and the Company’s independent auditors Subsidiaries for the last three full fiscal years ended at least 60 days prior to provide customary cooperation the Closing Date, (B) providing unaudited interim consolidated balance sheets and related statements of income, comprehensive income and cash flows of the Company and the Company’s Subsidiaries for each subsequent fiscal quarterly interim period or periods ended at least 45 days prior to the Closing Date (and the corresponding period(s) of the prior fiscal year, which are prepared in accordance with GAAP (subject to the Financing;absence of footnote disclosures and year-end adjustments) (it being understood that, with respect to such financial information for each such fiscal year and subsequent interim period, such condition shall be deemed satisfied through the filing by the Company of its annual report on Form 10-K or quarterly report on Form 10-Q with respect to such fiscal year or interim period), and (C) providing Parent upon request with such information as may be necessary so that any and all information provided under this Section 5.14 is complete and correct in all material respects and does not and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein, in light of the circumstances under which such statements are made, not misleading; and
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection furnishing Parent with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan with respect to the Company and its Subsidiaries as is shall have been reasonably requested in writing by AbbVie Parent at least ten (10) Business Days in advance of prior to the Completion Closing Date in connection with the Financing that relates to is required by applicable regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitationthe PATRIOT Act, in each case no later than three Business Days prior to the USA PATRIOT ACT. Closing Date.
(b) Notwithstanding anything to the contrary contained in this Section 7.9(a) or Section 7.9(b) below, Agreement (A) none of Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to including this Section 7.9(a5.14) or nothing in this Agreement (including this Section 7.9(b5.14) below shall require any such cooperation to the extent that it would (i) require the Company to pay any commitment or other fee fees, reimburse any expenses or otherwise incur any liability (other than third-party costs and expenses liabilities that are not required to be promptly be, or are, reimbursed or indemnified by AbbVie upon request by Allergan pursuant to Section 7.9(c))Parent as provided in clause (c) below, (ii) execute unreasonably interfere with the ongoing business or deliver any definitive financing documents operations of the Company and/or the Company’s Subsidiaries, (iii) require the Company or any of the Company’s Subsidiaries to enter into or approve any agreement or other agreement, certificate, document or instrument, documentation effective prior to the Closing Date or agree to any change to or modification of any existing agreement, certificate, document agreement or instrument, in each case other documentation that would be effective prior to the Completion Closing Date (other than customary authorization or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilegeagreements), (iv) deliver require the Company, any of the Company’s Subsidiaries or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use of their respective reasonable best efforts boards of directors (or equivalent bodies) to cause counsel to Allergan approve or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to authorize the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered))Financing, (v) be an issuer or other obligor with respect to require the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan Company or any of its Subsidiaries to incur take any corporate actions prior to the Closing Date to permit the consummation of the Financing, (vi) require the Company to waive or amend any terms of this Agreement, (vii) require the Company or any of its Subsidiaries to take any action that would conflict with any applicable Law, (viii) result in an equity holder, officer or director of the Company or any of its Subsidiaries incurring any personal liability or (ivix) result in a material violation cause any condition to Closing or on Exhibit A to fail to be satisfied or otherwise cause any breach ofof this Agreement (unless waived by Parent) or otherwise impair or delay the parties’ obligations under this Agreement, or (x) cause any condition to Closing or on Exhibit A to fail to be satisfied or otherwise cause any breach of this Agreement (unless waived by Parent).
(c) Parent shall keep the Company currently and reasonably informed with respect to its efforts under this Section 5.14, and shall provide the Company and its Representatives an update with respect to its efforts under this Section 5.14 within one (1) Business Day following Parent’s receipt of a default underrequest for such information from the Company.
(d) Parent shall (i) promptly upon request by the Company reimburse the Company for all of its reasonable and documented out-of-pocket fees and expenses (including reasonable and documented out-of-pocket attorneys’ fees) incurred by the Company, any material Contract to which Allergan of the Company’s Subsidiaries or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or their Representatives in connection with any applicable Law. AbbVie shall cause all non-public or other confidential information provided cooperation requested by or on behalf of Allergan or any of its Subsidiaries or Representatives Parent pursuant to this Section 7.9 5.14 and (ii) indemnify and hold harmless the Company, the Company’s Subsidiaries and its and their Representatives against any claim, loss, damage, injury, liability, Judgment, award, penalty, fine, Tax, cost (including cost of investigation), expense (including reasonable and documented out-of-pocket attorneys’ fees) or settlement payment incurred as a result of, or in connection with, such cooperation or the Financing, except to be kept confidential the extent (A) arising out of gross negligence, bad faith or willful misconduct of the Company or (B) arising from any written historical information utilized in accordance the Financing regarding the Company or the Company’s Subsidiaries provided to Parent for use in connection therewith in a manner mutually agreed.
(e) The Company hereby consents to the use of its trademarks and logos in connection with the Confidentiality AgreementFinancing in a form and manner mutually agreed in advance with the Company; provided, that Allergan acknowledges such trademarks and agrees logos are used solely in a manner that is not intended or reasonably likely to harm or disparage the confidentiality undertakings that will be obtained in connection with syndication Company or any of the Financing will be in a form customary for use in Company’s Subsidiaries or the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements reputation or goodwill of the Panel and Company or any of the Takeover RulesCompany’s Subsidiaries.
Appears in 3 contracts
Samples: Merger Agreement, Merger Agreement (Seattle Genetics Inc /Wa), Merger Agreement (Cascadian Therapeutics, Inc.)
Financing Cooperation. (a) Until Prior to the earlier of Effective Time, the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan shall use its reasonable best effortsPartnership Entities shall, and shall cause each of its their Subsidiaries to use its reasonable best effortsto, and shall use its their reasonable best efforts to cause its and their respective officersRepresentatives to, employees provide all customary and advisors and other Representatives, including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie and its Subsidiaries such assistance cooperation in connection with the arrangement of the financing contemplated by the Debt Commitment Letter (the “Debt Financing”) as may be reasonably requested by AbbVie in writing Parent (provided that is customary in connection such requested cooperation does not unreasonably interfere with the arranging, obtaining and syndication business or operations of the FinancingPartnership Entities and their respective Subsidiaries), including using (a) participation at reasonable best efforts with respect to:
(i) participating in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority times in a reasonable number of meetings, presentations, road showsroadshows (including customary one-on-one meetings), drafting sessions, rating agency and due diligence sessions with the Financing Sources and sessions potential lenders or investors in the Debt Financing, including direct contact between senior management and the other representatives of the Partnership Entities and their respective Subsidiaries, on the one hand, and the actual and potential Financing Sources and potential lenders or investors in the Debt Financing, on the other hand, in each case with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable advance notice, (Bb) reasonably assisting with AbbVie’s Parent and its Financing Sources in the preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar lender and investor presentations, business projections, pro forma financial statements, bank books and other marketing documents required in connection with the Financing (collectivelycustomarily used to arrange debt financing, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in identifying any SEC filing related to the Financing portion of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization lettersinformation contained therein that would constitute material, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary non-public information with respect to Allergan the Partnership Entities or any of their respective Subsidiaries or any of their respective securities for purposes of foreign, United States federal or state securities laws, (c) (i) furnishing Parent with the Required Information and its Subsidiaries (Aii) using reasonable best efforts to furnish any other information regarding the Retained Companies as may be reasonable requested by Parent that is customary or necessary for the preparation of a customary confidential information memorandum for financings that are similar to the Debt Financing, (d) using reasonable efforts to facilitate the granting of a security interest (and perfection thereof) in collateral, guarantees, mortgages, other definitive financing documents or other certificates or documents as may reasonably be requested by Parent, including obtaining releases of existing Liens; provided, that any obligations and releases of Liens contained in all such agreements and documents shall be subject to the occurrence of the type that would be required by Regulation S-X Effective Time and Regulation S-K under become effective no earlier than immediately following the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities ActEffective Time, including audit reports of annual financial statements (e) to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie Parent at least ten (10) Business Days in advance of days prior to the Completion Date in connection with Effective Time, furnishing within 5 days prior to the Financing that relates to Effective Time all documentation and other information required by Governmental Authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitationthe U.S.A. Patriot Act of 2001, but in each case, solely as relating to the Partnership Entities and their respective Subsidiaries, (f) assisting in the preparation of definitive financing documents as may be reasonably requested by Parent, (g) reasonably cooperating in satisfying the conditions precedent set forth in the Debt Commitment Letter or any definitive document relating to the Debt Financing to the extent the satisfaction of such condition requires the cooperation of, or is within the control of the Partnership Entities and their respective Subsidiaries, (h) taking all corporate actions, subject to the occurrence of the Effective Time, as reasonably requested by Parent to permit the consummation of the Debt Financing, and (i) permitting the prospective lenders or investors involved in the Debt Financing to conduct customary due diligence. The Partnership 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, nor reasonably likely to, harm or disparage the Partnership Entities or any of their respective Subsidiaries.
(b) If, prior to the Effective Time, Parent decides to commence a tender offer and/or consent solicitation in respect of some or all of the outstanding Partnership Senior Notes (each, a “Debt Offer”), Parent shall prepare all necessary and appropriate documentation in connection with such Debt Offers, including the offers to purchase and consent solicitation statements, letters of transmittal and other related documents (collectively, the USA PATRIOT ACT“Offer Documents”). Notwithstanding anything to The closing and effectiveness of any tender offer shall be expressly conditioned on the contrary in this Section 7.9(a) or Section 7.9(b) belowoccurrence of the Closing at the Effective Time, (A) and none of Allergan nor any of its Subsidiaries the Partnership Senior Notes shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective purchased prior to the Completion Date or would be effective if the Completion does not occur (except (x) Effective Time. The Partnership agrees to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating use reasonable best efforts to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shallprovide, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Subsidiaries and its and their respective Representatives to deliver any legal opinion or negative assurance letter (exceptprovide, reasonable cooperation in connection with the entry into preparation of the Offer Documents and the consummation of such Debt Offers to the extent requested by Parent, including with respect to the Partnership Entities’ execution of supplemental indentures reflecting amendments to the indentures applicable to the Partnership Senior Notes subject to any Debt Offer, to the extent approved by any required consents of holders of such Partnership Senior Notes (provided that either (x) the effectiveness of such supplemental indentures shall be expressly conditioned on the occurrence of the Closing at the Effective Time or (y) any amendments effectuated by such supplemental indentures shall not become operative until immediately prior to the Effective Time on the Closing Date). All Offering Documents and all mailings to the holders of the Partnership Senior Notes in connection with the Debt Offers shall be subject to the prior review and comment by the Partnership and Parent and shall be reasonably acceptable to each of them. If at any time prior to the completion of any Debt Offer any information in the applicable Offer Documents should be discovered by the Partnership or Parent that should be set forth in an Allergan Supplemental Indenture amendment or supplement to the Offer Documents, so that such Offer Documents shall not contain any untrue statement of a material fact or omit to state any material fact required by Section 7.9(b)to be stated therein or necessary in order to make the statements therein, Allergan shallin light of the circumstances under which they are made, not misleading, the party that discovers such information shall promptly notify the other party, and an appropriate amendment or supplement describing such information shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel be disseminated by Parent to the trustee under holders of the applicable Indenture that Partnership Senior Notes.
(c) Regardless of whether Closing occurs, (i) promptly upon the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan Partnership Entities’ request, all reasonable out-of-pocket fees and expenses incurred by the Partnership Entities, their subsidiaries and their Affiliates in connection with assisting in the Debt Financing, the Debt Offers, or the activities set forth in this Section 7.16 shall be paid or reimbursed by Parent and (ii) Parent shall indemnify and hold harmless the Partnership Entities and their Subsidiaries and their Affiliates from and against any liability or obligation suffered or incurred by them in connection with the Debt Financing, the Debt Offers or the activities set forth in this Section 7.16, and any information utilized in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect than historical information relating to the Partnership Entities and their Subsidiaries provided by the Partnership Entities in writing specifically for use in the Debt Financing prior offering documents or the Offer Documents).
(d) Notwithstanding anything in this Section 7.16 to the Completioncontrary, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except other than in connection with the execution and delivery of any applicable Allergan Supplemental Indentures)supplemental indenture contemplated by clause (b) of this Section 7.16 and any related officer’s certificates, and (Ci) neither Allergan the Partnership Entities nor any of its their respective Subsidiaries shall be required to take or permit the taking of incur any action that would (i) interfere unreasonably liability in connection with the business Debt Financing or operations of Allergan or its Subsidiariesthe Debt Offers prior to the Effective Time, (ii) cause any representation neither the Parent Entities or warranty their Subsidiaries will be required to pass resolutions or consents in this Agreement to be breached by Allergan connection with the Debt Financing or the Debt Offers other than resolutions or consents adopted at the Effective Time and (iii) none of the Partnership Entities or any of its their respective Subsidiaries (unless waived by AbbVie)shall be required to execute any definitive financing document, (iii) cause including any directorcredit or other agreement, officer pledge or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach ofsecurity document, or a default under, any material Contract to which Allergan other certificate or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained document in connection with syndication the Debt Financing the effectiveness of which is not contingent upon the occurrence of the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover RulesClosing.
Appears in 3 contracts
Samples: Merger Agreement (Targa Resources Corp.), Merger Agreement (Atlas Pipeline Partners Lp), Merger Agreement (Atlas Energy, L.P.)
Financing Cooperation. (a) Until the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan shall use its reasonable best efforts, and shall cause each of its Subsidiaries to use its reasonable best efforts, and The Company shall use its reasonable best efforts to provide, and to cause each of its Subsidiaries and their respective officers, employees and advisors and other Representatives, including legal and accounting advisors, legal counsel, accountants, and representatives to use their reasonable best effortsefforts to provide, to provide to AbbVie and such reasonable cooperation (provided that, in each case, the requested cooperation does not unreasonably interfere with the ongoing operations of the Company and/or any of its Subsidiaries such assistance as may be reasonably requested by AbbVie in writing Subsidiaries) that is customary in connection with the arranging, obtaining and syndication arrangement of the FinancingDebt Financing contemplated by the Debt Commitment Letter, including using reasonable best efforts with respect to:
(i) participating assist in preparation for and assisting participate in marketing efforts and lender presentations in connection with the due diligence, syndication or other marketing of the Financing, including using Debt Financing at reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan mutually agreed;
(ii) assist Parent with the preparation by Xxxxxx and upon reasonable notice, (B) assisting with AbbVie’s preparation the Debt Financing Sources of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations memoranda and similar marketing documents required in connection with the Debt Financing, including the execution and delivery of customary representation letters in connection with bank information memoranda;
(iii) cooperate reasonably with the Debt Financing Sources’ due diligence, to the extent customary and reasonable;
(collectivelyiv) execute and deliver as of (but not prior to) the Closing any pledge and security documents, “Marketing Material”account control agreements, mortgages, other definitive financing documents, currency or interest hedging arrangements, or other certificates or documents as may be reasonably requested by Xxxxxx (including a certificate of the chief financial officer (or other comparable officer) and due diligence sessions related theretoof the Company with respect to solvency matters after giving effect to the transactions contemplated hereby) (provided that, other than with respect to any customary representation letters referred to in clause (ii) above, (CA) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing none of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included documents or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letterscertificates shall be executed or delivered, management representation letters, confirmations, and undertakings except in connection with the Marketing Material Closing, and (B) the effectiveness thereof shall be conditioned upon, or become operative after, the occurrence of the Closing) and otherwise reasonably facilitate the pledging of collateral and the granting of security interests in each case, as applicable, subject to customary confidentiality provisions and disclaimers);respect of the Debt Financing; and
(iiv) timely furnishing AbbVie and its Financing Sources with historical financial provide all documentation and other customary information (collectively, about the “Financing Information”) with respect to Allergan Company and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to applicable “know your customer” and anti-money laundering rules and regulations, regulations including without limitation, the USA PATRIOT ACT. Notwithstanding anything Act, to the contrary in this Section 7.9(aextent required by the Debt Commitment Letter.
(b) or Section 7.9(b) belowIn connection with such cooperation, (A) none of Allergan neither the Company nor any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other similar fee in connection with the Debt Financing prior to the Closing Date or bear or reimburse any costs or expenses or make any payment to obtain consent or to incur any other actual or potential liability (other than third-party costs and expenses that are or cause or permit any Lien to be promptly reimbursed placed on any of its assets in connection with the Debt Financing prior to Closing, in each case, for which it has not received prior reimbursement or is not otherwise fully indemnified by AbbVie upon request by Allergan pursuant to Section 7.9(c))or on behalf of Parent, (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be become an issuer or other obligor with respect to the Financing prior Debt Financing, unless and until the Closing occurs, or (iii) execute or deliver, or take any corporate or other action to adopt or approve, any document, agreement, certificate or instrument with respect to the CompletionFinancing that will be effective before the Closing Date. Parent shall, (vi) commence any Allergan Note Offers and Consent Solicitations promptly, upon written request by the Company, reimburse the Company or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries, as applicable, for all reasonable and documented out-of-pocket fees, costs, and expenses incurred by any the Company and its Subsidiaries or any of their respective representatives (including those of their accounting firms engaged to assist in connection with the Debt Financing and legal counsel) in connection with the cooperation required by this Section 6.14, and shall be required indemnify and hold harmless the Company and its Subsidiaries and each of their respective representatives from and against all losses, damages, claims, costs, or expenses (including reasonable attorneys’ fees) suffered or incurred by any of them directly or indirectly in connection with such Person complying with their obligations under this Section 6.14 and any information used in connection therewith.
(c) The Company hereby consents to take the use of its logos solely in connection with the Financing; provided that Parent and Merger Sub shall ensure that such logos are used solely in a manner that would not harm or permit disparage the taking of any action that Company or the Company’s reputation, goodwill or marks and will comply with the Company’s reasonable usage requirements.
(d) Nothing in this Section 6.14 shall require such cooperation to the extent it would (i) interfere unreasonably with the business cause any condition to Closing set forth in Article VII to fail to be satisfied or operations otherwise cause any breach of Allergan or its Subsidiariesthis Agreement (unless, in each case, waived by Parent), (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan require the Company or any of its Subsidiaries to incur waive or amend any personal liability terms of this Agreement or (iv) take any action that would reasonably be expected to conflict with, or result in a material any violation or breach of, or a default under(with or without notice or lapse of time, or both) under any of their respective Organizational Documents, any material Contract to which Allergan applicable Laws or the Existing Debt Documents or (iii) result in any officer, director employee, agent or other representative of the Company or any of its Subsidiaries is a party, incurring any personal liability (as opposed to liability in his or her capacity as officer) with respect to any matters relating to the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained in connection with syndication of the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover RulesDebt Financing.
Appears in 3 contracts
Samples: Merger Agreement (Aspen Insurance Holdings LTD), Merger Agreement (Aspen Insurance Holdings LTD), Merger Agreement (Aspen Insurance Holdings LTD)
Financing Cooperation. (a) Until the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan shall use its reasonable best effortsVE shall, and shall cause each of its Subsidiaries to use its reasonable best effortsto, and shall use its all reasonable best efforts to cause its and their its Subsidiaries’ respective officersRepresentatives to, employees provide reasonable cooperation in connection with the arrangement by VI of financing in the public or private capital markets or bank debt market for the purpose of financing the Share Purchase and advisors the fees and other Representativesexpenses incurred in connection therewith (the “Financing”), including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie and its Subsidiaries such assistance as may be reasonably requested by AbbVie VI, including:
(a) using all reasonable efforts to furnish VI and its underwriters or financing sources, on a reasonably prompt basis, the Required Information (but in writing relation to clause (c) of the definition of Required Information, only such financial statements, financial data, audit reports and other information regarding VE and its Subsidiaries pursuant to clause (c) of the definition of Required Information that are reasonably obtainable by VE), and using all reasonable efforts to furnish any other information relating to VE and its Subsidiaries that is customary or reasonably necessary for the completion of such Financing to the extent reasonably requested by VI to assist in preparation of customary offering or information documents to be used in connection with the arranging, obtaining and syndication Financing or otherwise in connection with the marketing or placement of the Financing, including using reasonable best efforts with respect to:;
(ib) participating using all reasonable efforts to cause VE’s and any of its Subsidiaries’ independent accountants, as reasonably requested, to provide reasonable assistance to VI consistent with their customary practice (including to consent to the use of their audit reports on the consolidated financial statements of VE and its Subsidiaries, in and assisting any materials relating to the Financing or in connection with any filings made with the due diligenceSEC or pursuant to the Securities Act or the Securities Exchange Act, syndication and to provide any “comfort letters” (including drafts thereof) necessary and reasonably requested by VI and its underwriters or other marketing financing sources in connection with any capital markets transaction comprising a part of the Financing (which such accountants would be prepared to issue at the time of pricing and at closing of any offering or placement of the Financing), including using in each case, on customary terms and consistent with their customary practice) and to participate in reasonable best efforts and customary due diligence sessions with respect to such underwriters or financing sources and their respective Representatives;
(Ac) the participation by members of management of Allergan with appropriate seniority participating in a reasonable number of meetings, presentations, road shows, drafting management due diligence sessions, due diligence drafting sessions and sessions with prospective lendersrating agencies in connection with the Financing;
(d) using all reasonable efforts to make available to VI and its underwriters or financing sources and their respective Representatives such documents and other information concerning VE and its Subsidiaries and their respective businesses, investors that are reasonably obtainable by VE, as is reasonably requested and rating agencies, at times and at locations reasonably acceptable provided in connection with due diligence investigations of issuers for purposes of a securities offering registered under the Securities Act; and
(e) using all reasonable efforts to Allergan and upon reasonable notice, (B) assisting assist with AbbVie’s the preparation of customary materials for registration statementsprospectuses, offering documents, private placement memorandadocuments (including pro forma financial statements to be included therein), bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection with the Financing Financing, provided, that, in each case, such requested cooperation shall not (collectivelyi) unreasonably interfere with the ongoing operations of VE and its Affiliates, “Marketing Material”or (ii) require any commitment by VE or any of its Affiliates other than as expressly set forth in clauses (a) – (e) above that will be binding unless and due diligence sessions related theretountil the Closing shall occur. VI shall, promptly upon request by VE, reimburse VE for all reasonable and documented out-of-pocket costs and expenses incurred by VE or any of its Affiliates or Representatives in connection with such cooperation (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings other than such costs incurred in connection with the Marketing Material (preparation of the Required Information in the ordinary course of business consistent with past practice, which shall not, except to the extent otherwise provided in Section 6.7(d), be reimbursed). VI shall indemnify and hold harmless VE and its Affiliates from and against any and all Liabilities suffered or incurred by them in connection with the arrangement of the Financing and any information utilized in connection therewith in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements except to the extent so required (which audit reports shall not be subject to that any “going concern” qualifications), such Liabilities are suffered or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings incurred as a result of the applicable type;
(iii) providing to AbbVieVE’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries Affiliates’ or any of their respective Representatives’ gross negligence, bad faith, willful misconduct or material breach of this Agreement, as applicable. VE shall have the right to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (consent to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s its and its Affiliates’ logos in connection with the Financing (provided that such logos are used solely which consent shall not be unreasonably withheld, conditioned or delayed). Except for any confidential information required to be included in a manner that is not intended to and is not reasonably likely to harm any registration statement or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date prospectus in connection with the Financing that relates to applicable “know your customer” and anti-money laundering rules and regulationsFinancing, including without limitation, the USA PATRIOT ACT. Notwithstanding anything to the contrary in this Section 7.9(a) or Section 7.9(b) below, (A) none of Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other otherwise confidential information provided regarding VE obtained by or on behalf of Allergan or any of its Subsidiaries or Representatives VI pursuant to this Section 7.9 to 6.6 shall be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan VI shall be permitted to share all information subject to such agreement with its potential underwriters and financing sources and their Representatives, subject to customary confidentiality undertakings reasonably satisfactory to VE being given by such potential underwriters and financing sources with respect thereto. Notwithstanding anything to the contrary in this Section 6.6, VI acknowledges and agrees that its obligation to consummate the confidentiality undertakings that will be obtained in connection with syndication Share Purchase on the terms and subject to the conditions set forth herein are not contingent on the arrangement of any debt or equity financing (including the Financing) or the receipt of the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover Rulesproceeds therefrom.
Appears in 3 contracts
Samples: Transaction Agreement, Transaction Agreement (Visa Inc.), Transaction Agreement (Visa Inc.)
Financing Cooperation. (a) Until the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan The Company shall use its reasonable best efforts, and shall cause each of its Subsidiaries to use its reasonable best efforts, and each of them shall use its their reasonable best efforts to cause its and their respective officers, employees and advisors and other Representatives, including legal and accounting advisors, Representatives to use their reasonable best efforts, to provide customary cooperation, to AbbVie and its Subsidiaries such assistance as may be the extent reasonably requested by AbbVie Parent in writing that is customary writing, in connection with the arrangingoffering, obtaining and syndication arrangement, syndication, consummation, issuance or sale of any Debt Financing or Alternative Financing obtained in accordance with Section 5.13 (provided, that such requested cooperation does not unreasonably interfere with the ongoing operations of the FinancingCompany or any of its Affiliates), including including, to the extent so requested, using reasonable best efforts with respect to:
(i) participating in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect furnish promptly to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection with Parent the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmationsInformation, and undertakings in connection with such other financial information regarding the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan Company and its Subsidiaries as is reasonably requested by AbbVie or Parent in connection with the Debt Financing;
(ii) assist Parent in its Financing Sources and customarily required in Marketing Material for Financings preparation of the applicable type, including all Historical Financial Statements and other customary pro forma financial information identified in clause (c) of paragraph 2 of Annex B of the Debt Commitment Letters with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable typeParent;
(iii) providing provide reasonable and customary assistance to AbbVie’s legal counsel Parent and its independent auditors such the Financing Parties in the preparation of (A) customary offering documents, offering memoranda, offering circulars, private placement memoranda, registration statements, prospectuses, syndication documents and other syndication materials, including information memoranda, lender and investor presentations, bank books and other marketing documents, and similar documents for any portion of the Debt Financing and (B) materials for rating agency presentations;
(iv) make senior management of the Company available, at reasonable times and locations and upon reasonable prior notice, to participate in meetings (including one-on-one conference or virtual calls with Financing Parties and potential Financing Parties), drafting sessions, presentations, road shows, rating agency presentations and due diligence sessions and other customary syndication activities, provided, at the Company’s option in consultation with Parent, any such meeting or communication may be conducted virtually by videoconference or other media;
(v) cause the Company’s independent registered accounting firm to provide customary assistance, including by using reasonable best efforts to cause the Company’s independent registered accounting firm to provide customary comfort letters (including “negative assurance” comfort, if customary and appropriate) in connection with any capital markets transaction comprising a part of the Debt Financing to the applicable Financing Parties and to participate in a reasonable number of due diligence sessions; provided, at the Company’s option, any such session may be conducted virtually by videoconference or other media, and including by using reasonable best efforts to provide customary representation letters to the extent required by such independent registered accounting firm in connection with the foregoing;
(vi) provide customary authorization letters authorizing the distribution of Company information relating to Allergan prospective lenders in connection with a syndicated bank financing;
(vii) assist in obtaining or updating corporate and its Subsidiaries facility credit ratings;
(viii) assist in the negotiation and preparation of any credit agreement, indenture, note, purchase agreement, underwriting agreement, guarantees and customary closing certificates, as may be reasonably requested by Parent, in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors each case as experts in any Marketing Material and registration statements and related government filings filed or used contemplated in connection with the Debt Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents make introductions of Parent to the reasonable use Company’s existing lenders and facilitate relevant coordination between Parent and such lenders;
(x) cooperate with internal and external counsel of all of Allergan’s logos Parent in connection with providing customary back-up certificates and factual information regarding any legal opinion that such counsel may be required to deliver in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); andDebt Financing;
(xxi) providing deliver, at least three (3) Business Days prior to Closing, to the extent reasonably requested in advance of the Completion Date such writing at least nine Business Days prior to Closing, all documentation and other information about Allergan regarding the Company and its Subsidiaries as that any Financing Party reasonably determines is reasonably requested in writing required by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Notwithstanding anything Patriot Act of 2001, and, to the contrary extent required by any Financing Party, a beneficial ownership certificate (substantially similar in this Section 7.9(aform and substance to the form of Certification Regarding Beneficial Owners of Legal Entity Customers published jointly, in May 2018, by the Loan Syndications and Trading Association and Securities Industry and Financial Markets Association) in respect of any of the Company or Section 7.9(bany of its Subsidiaries that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation (31 C.F.R. § 1010.230);
(xii) belowat Parent’s written request, cooperate with and use reasonable best efforts to provide all reasonable assistance to Parent in connection with any steps Parent may determine are necessary or desirable to take to (A) obtain consent for the Change of Control under and as defined in the Company Credit Agreement arising from consummation of the transactions contemplated by this Agreement, including facilitating and participating in communications with lenders under the Company Credit Agreement in relation to a Change of Control amendment request substantially in the form attached to the Debt Commitment Letters; provided that any such documentation prepared by the Company, its Subsidiaries and Representatives in connection with the foregoing shall be reasonably acceptable to Parent, and/or (B) prepay some or all amounts outstanding under the Company Credit Agreement, including (1) using reasonable best efforts to prepare and submit customary notices in respect of any such prepayment provided that such prepayment shall be contingent upon the occurrence of the Closing unless otherwise agreed in writing by the Company, and (2) using reasonable best efforts to obtain from the Company Credit Agreement agent a customary payoff letter in respect of the Company Credit Agreement;
(xiii) at Parent’s written request, cooperate with and use reasonable best efforts to provide all reasonable assistance to Parent in connection with any amendments to (A) the Financing Agreement, dated as of February 21, 2012, between The Kansas City Southern Railway Company and the United States of America, represented by the Secretary of Transportation acting through the Administrator of the Federal Railroad Administration and (B) the Financing Agreement, dated as of June 28, 2005, between Texas Mexican Railway Company and the United States of America, represented by the Secretary of Transportation acting through Administrator of the Federal Railroad Administration;
(xiv) on the Closing Date but immediately following the Closing, at Parent’s request (which may be prior to the Closing Date), execute such documentation as is reasonably requested so that the Company can assume the Debt Commitment Letter in respect of the Company Credit Agreement (to the extent the debt commitments thereunder have not been terminated at Closing in accordance with their terms); and
(xv) consent 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 or the Company’s or its Subsidiaries’ reputation or goodwill.
(b) The foregoing notwithstanding, none of Allergan the Company nor any of its Subsidiaries Affiliates shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to 5.12 that would: (i) pay require the Company or its Subsidiaries or any commitment of their respective Affiliates or other fee any persons who are officers or incur any liability (other than third-party costs and expenses that are directors of such entities to be promptly reimbursed by AbbVie upon request by Allergan pursuant pass resolutions or consents to Section 7.9(c))approve or authorize the execution of the Debt Financing or enter into, (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document document, instrument or instrument, agreement or agree to any change to or modification of any existing agreement, certificate, document document, instrument or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur agreement (except (x) to for the extent required authorization letters contemplated by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered5.12(a)(vi)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan the Company or any of its Subsidiaries (unless waived by AbbVie)Affiliates, (iii) require the Company or any of its Affiliates to (x) pay any commitment or other similar fee or (y) incur any other expense, liability or obligation which expense, liability or obligation is not reimbursed or indemnified hereunder in connection with the Debt Financing prior to the Closing, or (z) have any obligation of the Company or any of its Affiliates under any agreement, certificate, document or instrument be effective until the Closing, (iv) cause any director, officer or officer, employee or shareholder stockholder of Allergan the Company or any of its Subsidiaries Affiliates to incur any personal liability liability, (v) conflict with the Organizational Documents of the Company or any of its Affiliates or any Laws, (ivvi) reasonably be expected to result in a material violation or material breach of, or a default (with or without notice, lapse of time, or both) under, any material Contract to which Allergan the Company or any of its Subsidiaries Affiliates is a partyparty (other than the Change of Control under and as defined in the Company Credit Agreement resulting from the consummation of the Mergers), (vii) provide access to or disclose information that the Company or any of its Affiliates determines would jeopardize any attorney-client privilege or other applicable privilege or protection of the Company or any of its Affiliates, (viii) require the Company to prepare any financial statements or information (other than the Financing Information) that are not available to it and prepared in the ordinary course of its financial reporting practice, or (ix) require the Company to prepare or deliver any Excluded Information. Nothing contained in this Section 5.12 or otherwise shall require the Company or any of its Affiliates, prior to the Closing, to be an issuer or other obligor with respect to the Debt Financing. Parent shall, promptly on request by the Company, reimburse the Company or any of its Affiliates for all reasonable out-of-pocket costs incurred by them or their respective representatives in connection with such cooperation and shall indemnify and hold harmless the Company and its Affiliates and their respective representatives from and against any and all losses suffered or incurred by them in connection with the arrangement of the Debt Financing, any action taken by them at the request of Parent or its representatives pursuant to this Section 5.12 and any information used in connection therewith.
(c) The parties hereto acknowledge and agree that the provisions contained in this Section 5.12 represent the sole obligation of the Company and its Subsidiaries with respect to cooperation in connection with the arrangement of any financing (including the Debt Financing) to be obtained by Parent with respect to the transactions contemplated by this Agreement, and no other provision of this Agreement (including the Exhibits and Schedules hereto) shall be deemed to expand or modify such obligations. In no event shall the receipt or availability of any funds or financing (including the Debt Financing) by Parent any of its Affiliates or any other financing or other transactions be a condition to any of Parent’s obligations under this Agreement. Notwithstanding anything to the contrary in this Agreement, the Organizational Documents Company’s breach of Allergan or its Subsidiaries or any applicable Law. AbbVie of the covenants required to be performed by it under this Section 5.12 shall not be considered in determining the satisfaction of the condition set forth in Section 6.3(b), unless such breach is the primary cause all of Parent being unable to obtain the proceeds of the Debt Financing at the Closing.
(d) All non-public or other otherwise confidential information provided by or on behalf of Allergan regarding the Company or any of its Subsidiaries Affiliates obtained by Parent or Representatives its representatives pursuant to this Section 7.9 to 5.12 shall be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges Parent shall be permitted to disclose such information to (i) the Financing Parties subject to their confidentiality obligations under the Debt Commitment Letters and agrees that the confidentiality undertakings that will be obtained definitive documentation evidencing the Debt Financing and (ii) otherwise to the extent necessary and consistent with customary practices in connection with syndication of the Debt Financing will be in a form subject to customary for use in confidentiality arrangements reasonably satisfactory to the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover RulesCompany.
Appears in 2 contracts
Samples: Merger Agreement (Kansas City Southern), Merger Agreement (Canadian Pacific Railway LTD/Cn)
Financing Cooperation. (a) Until Prior to the earlier of Closing, the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan Company shall use its reasonable best efforts, and shall cause each of its the Company Subsidiaries to use its reasonable best efforts, and shall use its reasonable best efforts to cause its and their respective officers, employees and advisors and other Representatives, including legal and accounting advisors, to use their reasonable best efforts, to provide customary cooperation, to AbbVie and its Subsidiaries such assistance as may be the extent reasonably requested by AbbVie Parent in writing that is customary writing, in connection with the arrangingoffering, obtaining and syndication arrangement, syndication, consummation or issuance of the FinancingFinancing or Alternative Financing or Replacement Financing obtained in accordance with Section 6.20 (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company or any of its Affiliates), including including, to the extent so requested, using reasonable best efforts with respect to:
(i) participating in furnish to Parent and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the Parties historical audited consolidated financial statements and unaudited consolidated interim other pertinent financial statements of Allergan included or incorporated by reference into information regarding the Allergan SEC Documents (Company and the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with Company Subsidiaries to the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is extent reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions Parent and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(ii) furnish to Parent and the Financing Parties customary information regarding the Company and the Company Subsidiaries (including information to be used in the preparation of one or more information packages regarding the business, operations, financial projections and prospects of the Company or the Company Subsidiaries) to the extent reasonably available to the Company or the Company Subsidiaries and reasonably requested by Parent;
(iii) provide reasonable and customary assistance to Parent in the preparation of (A) customary offering documents, offering memoranda, roadshow presentations, bridge teasers, syndication documents and other syndication materials, including information memoranda and lender presentations for any portion of the Financing, (B) materials for rating agency presentations and (C) other marketing materials reasonably requested by Parent and reasonably necessary for the Financing or Alternative Financing or Replacement Financing obtained in accordance with Section 6.20;
(iv) make appropriate members of senior management of the Company available at reasonable times and locations and upon reasonable prior notice, to participate in a reasonable number of meetings (including one-on-one meetings or conference calls with Financing Parties, underwriters or ratings agencies), drafting sessions, presentations, road shows, rating agency presentations and due diligence sessions and other syndication activities, provided that any such meeting or communication may be conducted virtually by videoconference or other media;
(v) cause the Company’s independent auditors to deliver (A) customary “comfort letters” (including customary “negative assurances” comfort) in connection with the Financing and (B) customary consent to use of their audit reports in any materials reasonably necessary for the Financing;
(vi) obtaining Allergan’s independent auditors’ provide customary comfort authorization letters (including customary confirmations and assistance undertakings reasonably requested by Parent) authorizing the distribution of Company information to prospective lenders in connection with the accounting due diligence activities a syndicated bank financing (including customary representations with respect to presence or absence of material nonpublic information and accuracy of the Financing Sourcesinformation contained therein);
(vii) causing the Financing to benefit from the existing lender relationships of Allergan cooperate with Parent and its SubsidiariesMerger Sub in their obtaining customary corporate and facilities credit ratings;
(viii) providing documents reasonably requested provide customary prepayment notices within the time period contemplated by AbbVie or (A) the Financing Sources Existing Credit Agreement and (B) any other agreements relating to Indebtedness of the repayment or refinancing of any indebtedness for borrowed money of Allergan Company or any of its the Company Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion)as Parent may reasonably request;
(ix) procuring consents provide customary documents reasonably requested by Parent relating to (A) the repayment of (1) the Existing Credit Agreement and (2) any other agreements relating to Indebtedness of the Company or any of the Company Subsidiaries as Parent may reasonably request, and (B) the release of related Liens (if any), including using reasonable best efforts to obtain customary payoff letters in respect of the Existing Credit Agreement and such other agreements relating to Indebtedness of the Company or any of the Company Subsidiaries at least five (5) Business Days prior to the reasonable Closing Date;
(x) provide all documentation and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and 31 C.F.R. §1010.230, relating to the Company or any Company Subsidiary as soon as practicable but in any event at least five (5) Business Days prior to the Closing Date, in each case as reasonably requested by Parent at least ten (10) Business Days prior to the Closing Date;
(xi) cooperate with due diligence of the Financing Parties, to the extent customary and reasonable;
(xii) consent to the use of all of Allerganthe Company’s and the Company Subsidiaries’ logos in connection with the Financing (Financing; provided that such logos are used solely in a manner that is not intended to and is not to, nor reasonably likely to to, harm or disparage Allergan the Company or its the Company Subsidiaries or the Company’s or the Company Subsidiaries’ reputation or goodwill of Allergan or any of its Subsidiaries); andgoodwill;
(xxiii) providing at least three provide customary and reasonable assistance requested by Parent in connection with Parent’s preparation of pro forma financial statements and pro forma financial information;
(3xiv) Business Days in advance of the Completion Date such documentation provide customary certificates and other information about Allergan and its Subsidiaries customary closing documents as is may be reasonably requested in writing by AbbVie at least ten the Financing Parties (10) Business Days in advance provided that no obligation of the Completion Date Company or any Company Subsidiary under any such certificate or document shall be effective until the Closing);
(xv) cause the taking of corporate actions and organizational changes reasonably requested by Parent and within the control of the Company that are reasonably necessary to permit the completion of the Financing;
(xvi) reasonably assist in the preparation of, and executing and delivering at Closing, the Definitive Agreements and any indentures, notes and purchase agreements relating to the Financing, including assisting with the execution and delivery as of the Closing (but not prior to the Closing) of any guarantee and collateral documents and customary closing certificates as may be reasonably requested by Parent and required by the Commitment Letter or the Financing (provided that no obligation of the Company or any Company Subsidiary under any such document, agreement or certificate shall be effective until the Closing) and otherwise use commercially reasonable efforts to provide customary and reasonable assistance requested by Parent in connection with satisfying the conditions precedent set forth in the Definitive Agreements;
(xvii) reasonably cooperate with Parent’s legal counsel in connection with any legal opinion that such legal counsel may be required to deliver in connection with the Financing, including using reasonable best efforts to furnish documents required to satisfy any customary negative assurance opinion required in connection with the Financing;
(xviii) to the extent necessary or advisable, reasonably cooperate to facilitate the pledging of collateral and the executing and delivering of customary pledge and security documents (and any other customary documents or instruments required for the creation and perfection of security interests in the collateral securing the Financing as may be reasonably requested by Parent) or other customary definitive financing documents reasonably requested by the Financing Parties (including customary guarantees and other deliverables), in each case required in connection with the Financing that relates and effective as of the Closing (but not prior to applicable “know your customer” the Closing);
(xix) provide customary and anti-money laundering rules reasonable assistance to Parent and regulationsMerger Sub in obtaining required consents, landlord waivers and estoppels, estoppels and SNDAs from tenants under any leases, ground lease estoppels and consents from fee owners under any Facility Leases, estoppels and consents pursuant to any PILOT documents and surveys and title insurance as reasonably requested by Parent or Merger Sub, including without limitationby using reasonable best efforts to provide customary non-imputation title affidavits, the USA PATRIOT ACT. Notwithstanding anything to the contrary in this Section 7.9(a) title affidavits or Section 7.9(b) below, similar documents required by a nationally-recognized title company for (A) the deletion of any standard or pre-printed exceptions in any title insurance policies or proforma or (B) the satisfaction of any requirement set forth in any title commitment and, to the extent appropriate, appraisals of the Company Properties; and
(xx) take any other actions reasonably requested by Parent and necessary to permit the Financing Parties to conduct customary field examinations for third party reports and environmental assessments, and, to the extent appropriate, appraisals of the Company Properties.
(b) The foregoing notwithstanding, none of Allergan the Company nor any of its Subsidiaries Affiliates shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to 6.19 that would: (i) pay require the Company or the Company Subsidiaries or and of their respective Affiliates or any commitment persons who are officers or other fee directors of such entities to pass resolutions or incur any liability consents to approve or authorize the execution of the Financing (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)any customary authorization letters), except (iiA) execute resolutions or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior consents which are subject to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light occurrence of the facts Closing passed by directors or officers continuing in their positions following the Closing and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indenturesas expressly provided in Section 6.19(a), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan the Company or any of its Subsidiaries (unless waived by AbbVie)Affiliates, (iii) require the Company or any of its Affiliates to pay any commitment or other similar fee or incur any other expense, liability or obligation in connection with the Financing prior to the Closing or have any obligation of the Company or any of its Affiliates under any agreement, certificate, document or instrument be effective until the Closing, (iv) cause any director, officer or officer, employee or shareholder shareholders of Allergan the Company or any of its Subsidiaries Affiliates to incur any personal liability liability, (v) conflict with the organizational documents of the Company or any of its Affiliates or any Laws, (ivvi) reasonably be expected to result in a material violation or breach of, or a default (with or without notice, lapse of time, or both) under, any material Contract to which Allergan the Company or any of its Subsidiaries Affiliates is a party, (vii) provide access to or disclose information that the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan Company or any of its Subsidiaries Affiliates determines would jeopardize any attorney-client privilege or other applicable privilege or protection of the Company or any of its Affiliates, (viii) require the Company to prepare any financial statements or information that are not available to it and prepared in the ordinary course of its financial reporting practice, or (ix) require the Company to prepare or deliver any Excluded Information. Nothing contained in this Section 6.19 or otherwise shall require the Company or any of its Affiliates, prior to the Closing, to be an issuer or other obligor with respect to the Financing. Parent shall, promptly on request by the Company, reimburse the Company or any of its Affiliates for all reasonable and documented out-of-pocket costs incurred by them or their respective Representatives in connection with the Financing or with any such cooperation, and shall indemnify and hold harmless the Company and its Affiliates and their respective Representatives from and against any and all losses actually suffered or incurred by them in connection with the Financing, any action taken by them at the request of Parent or its Representatives pursuant to this Section 7.9 6.19, and any information used in connection therewith (other than information provided to Parent in writing by the Company or the Company Subsidiaries specifically in connection with their obligations pursuant to Section 6.19(a)).
(c) The parties hereto acknowledge and agree that the provisions contained in this Section 6.19 represent the sole obligation of the Company and the Company Subsidiaries with respect to cooperation in connection with the arrangement of any financing (including the Financing) to be obtained by Parent, and no other provision of this Agreement (including the Exhibits and Schedules hereto) shall be deemed to expand or modify such obligations. In no event shall the receipt or availability of any funds or financing (including the Financing) by Parent any of its Affiliates be a condition to any of Parent’s obligations under this Agreement. Notwithstanding anything to the contrary in this Agreement, the breach by the Company of any of the covenants required to be performed thereby under this Section 6.19 shall not be considered in determining the satisfaction of the condition set forth in Section 7.2(b) unless such breach is the primary cause of Parent being unable to obtain the proceeds of the Financing at the Closing.
(d) All non-public or otherwise confidential information regarding the Company or any of its Affiliates obtained by Parent or its Representatives pursuant to this Section 6.19 shall be kept confidential in accordance with the Confidentiality Agreement; provided, provided that Allergan acknowledges Parent shall be permitted to disclose information as necessary and agrees that the confidentiality undertakings that will be obtained consistent with customary practices in connection with syndication of the Financing will be in a form subject to customary for use in confidentiality arrangements reasonably satisfactory to the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover RulesCompany.
Appears in 2 contracts
Samples: Merger Agreement (Industrial Logistics Properties Trust), Merger Agreement (Monmouth Real Estate Investment Corp)
Financing Cooperation. (a) Until the earlier of the Completion and the valid termination of this Agreement pursuant Goldcorp agrees to and in accordance with Article 9, Allergan shall use its commercially reasonable best effortsefforts to provide, and shall to cause each of its Subsidiaries to use its reasonable best efforts, and shall use its reasonable best efforts to cause its and each of their respective officersRepresentatives to provide, employees and advisors and other Representatives, including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie and its Subsidiaries such assistance cooperation as may be reasonably requested by AbbVie in writing that is customary Newmont in connection with the arrangingborrowing or an issuance of debt by Newmont and/or any liability management transaction (including, obtaining and syndication of the Financingwithout limitation, including using reasonable best efforts any exchange offers, consent solicitations or tender offers) with respect to debt existing on the date hereof of Goldcorp or its Subsidiaries (collectively, a “Debt Financing”), including, without limitation to:
, upon reasonable notice: (i) participating in and assisting provide assistance with the due diligenceany discussions of and/or furnish, syndication or other marketing of the Financingas applicable, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetingssuch business, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation of customary materials for registration financial statements, offering documentspro forma financials, private placement memorandaprojections, bank management discussion and analysis and other customary financial data and information memoranda, prospectuses, rating agency presentations and similar documents (including diligence materials) reasonably required in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related theretoany Debt Financing, (Cii) delivering direct their respective independent accountants to provide customary and consenting to the inclusion or incorporation reasonable assistance in connection with any SEC filing related to the Financing of the historical audited consolidated financial statements Debt Financing, including in connection with providing customary comfort letters and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents consents, (the “Historical Financial Statements”iii) and (D) delivering obtain customary authorization payoff letters, management representation letters, confirmations, releases of liens and undertakings other instruments of termination or discharge reasonably requested by Newmont in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings repayment of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan debt of Goldcorp and its Subsidiaries (A) provided that the effectiveness of any such arrangements shall be contingent on the completion of the type that would be required by Regulation S-X Arrangement) and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation authorize and facilitate discussions, meetings and other engagement by Newmont, its Subsidiaries or Affiliates with the Financing;
(v) obtaining the consents current lenders, noteholders or other providers of Allergan’s independent auditors existing indebtedness to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan Goldcorp or any of its Subsidiaries to be repaid or refinanced on for the Completion Date and the release purpose of related liens and/or guarantees (if any) effected therebyobtaining Debt Financing, including customary payoff letters by necessary or appropriate waivers of the Confidentiality Agreement to permit such activities. Newmont shall reimburse Goldcorp for all reasonable out-of-pocket costs or expenses incurred by Goldcorp and (its Subsidiaries in connection with cooperation provided for in this Section 5.13 to the extent requiredthe information requested was not otherwise prepared or available in the ordinary course of business.
(b) evidence Prior to the Effective Date, none of Goldcorp, its Subsidiaries or its or their respective Representatives shall be required to take any action that: (i) would contravene any applicable Law or any agreement that notice relates to borrowed money to which Goldcorp or any of its subsidiaries are a party: (ii) would reasonably be expected to impair or prevent the satisfaction of any condition in Article 6 hereof; or (iii) would subject such repayment has been timely delivered Person to 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 connection with any Debt Financing or their performance of their respective obligations under this Section 5.13 or any information utilized in connection therewith (except, in the case of this paragraph (iii) in respect of Goldcorp and its Subsidiaries, to the holders of extent such indebtednessliability, in each case in accordance with cost, expense or indemnity is conditional upon the terms occurrence of the definitive documents governing such indebtedness Effective Time). Newmont shall indemnify and hold harmless Goldcorp and its Subsidiaries and their respective Representatives from and against any and all costs suffered or incurred by them in connection with any Debt Financing and the performance of their respective obligations under this Section 5.13 and any information utilized in connection therewith (other than arising from information provided that any such notice by Goldcorp or payoff letter shall be expressly conditioned on its Subsidiaries specifically for use in the CompletionFinancing pursuant to Section 5.13);
(ix) procuring . Goldcorp hereby consents to the reasonable use of all the logos of Allergan’s logos Goldcorp or its Subsidiaries in connection with the Financing (provided any Debt Financing; provided, that such logos are used solely in a manner that is not intended to and is not or reasonably likely to harm or disparage Allergan Goldcorp or any of its Subsidiaries or the reputation or goodwill of Allergan Goldcorp or any of its Subsidiaries); and.
(xc) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Notwithstanding anything to the contrary in this Section 7.9(a) or Section 7.9(b) below, (A) none of Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan Newmont acknowledges and agrees that the confidentiality undertakings that will be obtained in connection with syndication consummation of the Financing will be in a form customary for use in transactions contemplated by this Agreement is not conditioned upon the syndication of acquisition-related debt during a takeover offer period in compliance with consummation of, or the requirements receipt by Newmont of the Panel and proceeds of, the Takeover RulesDebt Financing.
Appears in 2 contracts
Samples: Arrangement Agreement (Goldcorp Inc), Arrangement Agreement (Newmont Mining Corp /De/)
Financing Cooperation. (a) Until The Company shall deliver to Parent the Required Financial Information as soon as reasonably practicable and, in any case, no later than the date on which the Required Financial Information would be required to satisfy the conditions precedent set forth in the Debt Letters. The Company shall maintain its existing corporate and facility ratings (but not any specific rating). From the date hereof until the Closing (or the earlier of the Completion and the valid termination of this Agreement pursuant to Section 8.01), subject to the limitations set forth in this Section 5.05, and in accordance with Article 9unless otherwise agreed by Parent, Allergan shall the Company will use its reasonable best efforts, and shall will cause each of its Subsidiaries to use its reasonable best efforts, and shall will use its reasonable best efforts to cause its and their respective officers, employees and advisors and other Representatives, including legal and accounting advisors, its Subsidiaries’ Representatives to use their reasonable best efforts, to provide customary cooperation to AbbVie Parent, as reasonably requested by Parent as may be necessary or desirable for Parent’s arrangement of the Debt Financing. Such cooperation will include using reasonable best efforts, upon Parent’s reasonable request, to:
(i) cooperate with the marketing efforts of Parent solely in connection with the Debt Financing, including making appropriate senior officers of the Company available to participate in a reasonable number of lender or investor meetings, due diligence sessions, meetings with ratings agencies and its Subsidiaries road shows, in each case, at reasonable times and locations mutually agreed and upon reasonable prior notice (it being understood that any such meetings may take place via videoconference or web conference at the Company’s option);
(ii) provide reasonable and customary assistance to Parent in Parent’s preparation of customary confidential information memoranda, private placement memoranda, offering memoranda, prospectuses, lender and investor presentations and similar documents customarily required in connection with financings of a type similar to the Debt Financing and as may be reasonably requested by AbbVie Parent, in writing that is customary each case, with respect to historical information relating to the Company and its Subsidiaries in connection with such marketing efforts for the arrangingDebt Financing;
(iii) to the extent contemplated by or required under the Debt Commitment Letter, obtaining and syndication provide customary authorization letters to the Debt Financing Entities to accompany customary marketing materials in respect of the Debt Financing, including using reasonable best efforts with respect to:
(i) participating in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts making a customary 10b-5 representation with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material contained therein (in each case, as applicable, subject to including customary confidentiality exculpatory provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and the Company, each of its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings each of the applicable type, including all Historical Financial Statements their respective Affiliates and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualificationsRepresentatives), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation cooperate with the Debt Financing Entities’ due diligence efforts, to the extent reasonable and customary for financings similar to the Debt Financing;
(v) assist Parent in obtaining any customary corporate or facility ratings (but not any specific rating) from any rating agencies contemplated by the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Debt Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters assist the Debt Financing Parties in benefiting from the existing lending and assistance with the accounting due diligence activities investment banking relationships of the Financing Sources;Company and the Company Subsidiaries; and
(vii) causing the Financing to benefit from the existing lender relationships of Allergan furnish all documentation and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos other information required in connection with the Debt Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including including, without limitation, the USA PATRIOT ACTAct, Title III of Pub. L. 107-56 (signed into law October 26, 2001) and the requirements of 31 C.F.R. §1010.230, at least four (4) Business Days prior to the anticipated Closing Date, in each case, to the extent reasonably requested by Parent at least nine (9) Business Days prior to the anticipated Closing Date.
(b) Notwithstanding anything to the contrary contained in this Section 7.9(a) or Section 7.9(b) below5.05, nothing in this Agreement (A) none of Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to including this Section 7.9(a5.05) or Section 7.9(b) below shall require any such cooperation to the extent that it would reasonably be expected to (i) other than in connection with any Consent Solicitation require the Company or any of its Affiliates or any of their respective Subsidiaries or Representatives to pay any commitment or other fee fees, make any other payment, reimburse any expenses or otherwise incur any liability (other than third-party costs and expenses that are or obligation in connection with the Debt Financing, agree to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute give any indemnities or deliver otherwise incur any definitive financing documents or obligation under any other agreement, certificate, document or instrument, agreement or agree to any change to or modification of any existing agreement, certificate, document or instrumentother documentation, in each case case, that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental IndenturesClosing, (yii) customary officers’ certificates relating to unreasonably interfere with the execution thereof that would not conflict with applicable Law and would be accurate in light ongoing business or operations of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above)Company or any of its Affiliates or any of their respective Subsidiaries or Representatives, (iii) provide access to or disclose information that Allergan other than in connection with a Consent Solicitation, require the Company or any of its Affiliates or any of their respective Subsidiaries reasonably determines would jeopardize or Representatives to enter into, execute, deliver or approve any certificate (including any certificate as to solvency), instrument, agreement or other documentation (other than customary authorization letters in connection with the marketing efforts for the Debt Financing; provided that any such information distributed in connection with the foregoing shall contain customary language which shall exculpate the Company, its Affiliates and their respective Subsidiaries and Representatives with respect to any liability related to the unauthorized use or misuse of the contents of such information or related marketing materials by the recipients thereof) or agree to any change or modification of any existing certificate, instrument, agreement or other documentation, (iv) conflict with or result in any violation of the Company Articles, the Company Bylaws or the Organizational Documents of any of its Subsidiaries or any of their respective Affiliates, (v) result in a violation or breach of, or a default (with or without notice, lapse of time or both) under, any Contract to which the Company, any of its Subsidiaries or any of their respective Affiliates is a party, including this Agreement and any applicable confidentiality obligation, in each case, entered into with a Person that is not an Affiliate of the Company, (vi) result in a violation of applicable Law (including with respect to privacy of employees), (vii) threaten any attorney-client privilege or other applicable legal privilege of Allergan the Company or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use Affiliates or any of their respective reasonable best efforts to Subsidiaries or Representatives, in each case, as reasonably determined by the Company or any of its Affiliates or any of their respective Subsidiaries or Representatives, (viii) cause any such information Representative of the Company or any of its Affiliates to be disclosed in a manner that would not result in the loss of incur any such privilege)personal liability, (ivix) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, other than in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b)a Consent Solicitation, Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan the Company or any of its Subsidiaries (unless waived by AbbVie)Affiliates, (iiix) cause any director, officer or employee or shareholder of Allergan require the Company or any of its Affiliates or any of their respective Subsidiaries or Representatives to incur prepare or deliver any personal liability pro forma financial information, projections or other forward-looking financial information, (ivxi) result in a material violation or breach of, or a default under, any material Contract to which Allergan require the Company or any of its Subsidiaries is a party, the Organizational Documents Affiliates or any of Allergan or its their respective Subsidiaries or Representatives to deliver any applicable Lawlegal opinion or reliance letter or (xii) require the Company or any of its Affiliates or any of their respective Subsidiaries or Representatives to deliver (1) other than to the extent contemplated by the Required Financial Information, any audited financial information or any financial information prepared in accordance with Regulation S-K or Regulation S-X under the Securities Act of 1933, as amended, or any financial information in a form not customarily prepared by the Company with respect to such period or (2) any financial information with respect to a month or fiscal period that has not yet ended or has ended less than forty-five (45) days prior to the date of such request. AbbVie shall cause all non-public The Company hereby consents to the use of its and its Subsidiaries’ logos in connection with the Debt Financing; provided, however, that such logos are used solely in a manner that is not intended, or other confidential information provided by reasonably likely, to harm or on behalf of Allergan disparage the Company or any of its Subsidiaries or any of their respective Affiliates or Representatives or the reputation or goodwill of any of the foregoing.
(c) Parent shall (i) promptly upon request by the Company, reimburse the Company for all of its reasonable and documented out-of-pocket fees and expenses (including reasonable and documented out-of-pocket fees and expenses of counsel and accountants) incurred by the Company or any of its Affiliates or any of their respective Subsidiaries or Representatives in connection with the Debt Financing, including any cooperation related thereto and (ii) indemnify and hold harmless the Company and its Affiliates and any of their respective Subsidiaries or Representatives against any claim, loss, damage, injury, liability, judgment, award, penalty, fine, cost (including cost of investigation), expense (including fees and expenses of counsel and accountants) or settlement payment incurred as a result of, or in connection with, such cooperation or the Debt Financing and any information used or misused in connection therewith other than those claims, losses, damages, injuries, liabilities, judgments, awards, penalties, fines, costs, expenses and settlement payment arising out of or resulting from the fraud, gross negligence or willful misconduct of the Company, its Subsidiaries or their respective Affiliates and Representatives as finally determined by a court of competent jurisdiction.
(d) The parties hereto acknowledge and agree that the provisions contained in this Section 5.05 represent the sole obligation of the Company and its Affiliates and any of their respective Subsidiaries or Representatives with respect to any financing (including the Debt Financing) to be obtained by Parent with respect to the transactions contemplated by this Agreement (including the Debt Letters).
(e) All nonpublic or otherwise confidential information regarding the Company, any of its Subsidiaries or any of their respective Affiliates obtained by Parent or any of its Representatives or any of their respective Affiliates pursuant to this Section 7.9 5.05 shall be deemed subject to be kept confidential in accordance with the Confidentiality Agreement; provided.
(f) Notwithstanding anything in this Agreement to the contrary, that Allergan acknowledges in no event shall the receipt by, or availability to, Parent or any of its Affiliates of any funds or financing or any other financing transaction (including the Debt Financing) be a condition to Parent’s or Merger Subs’ obligations to effect the Closing.
(g) The Company and agrees that its Subsidiaries shall deliver payoff or similar notices with respect to any Indebtedness requested by Parent at least ten (10) Business Days prior to the confidentiality undertakings that will be obtained in connection anticipated Closing Date to the applicable agents, trustees or financing sources thereunder within the time frames required by the terms of such Indebtedness. The Company and its Subsidiaries shall deliver to Parent at least two (2) Business Days prior to the Closing Date a copy of payoff letters with syndication respect to such Indebtedness (and shall deliver at least five (5) Business Days prior to the Closing Date drafts of such payoff letters), setting forth the total amounts payable thereunder to fully satisfy all principal, interest, fees, costs, and expenses owed to each holder of such Indebtedness as of the Financing will anticipated Closing Date (and the daily accrual thereafter), together with appropriate wire instructions, and the agreement from the administrative agent, trustee or other debtholder that upon payment in full of all such amounts owed to such holder, all Indebtedness with respect thereto shall be discharged and satisfied in a form customary for use full and, if applicable, all liens on the Company or its applicable Subsidiaries and their respective assets and equity shall be released and terminated, together with any applicable documents reasonably necessary to evidence the release and termination of all liens on the Company or its applicable Subsidiaries and their respective assets and equity securing such Indebtedness. The Company shall reasonably cooperate with Parent in replacing, backstopping or cash collateralizing any letters of credit issued pursuant to any such Indebtedness.
(h) Promptly upon the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements request of the Panel Parent, the Company shall actively assist Parent in obtaining waivers of any “change of control” (or similar term), any default or event of default or any mandatory prepayment or prepayment right or offer for prepayment right arising under the Indebtedness listed on Section 5.05(h) of the Company Disclosure Letter (the “Specified Debt Agreements”) as a result of any of the transactions contemplated by this Agreement and in obtaining other amendments to the Takeover RulesSpecified Debt Agreements reasonably requested by the Parent, which such assistance shall include, without limitation, coordinating with (and introducing the Parent and its Representatives to) the agents, lenders, noteholders and letter of credit issuers under the Specified Debt Agreements, executing and entering into such waivers and amendments and complying with customary closing deliverables required for the effectiveness thereof (the actions described herein, the “Consent Solicitations”).
Appears in 2 contracts
Samples: Merger Agreement (Allete Inc), Merger Agreement (Allete Inc)
Financing Cooperation. (a) Until From the date hereof until the Closing (or the earlier of the Completion and the valid termination of this Agreement pursuant to and Section 8.01), subject to the limitations set forth in accordance with Article 9, Allergan shall use its reasonable best effortsthis Section 5.06, and shall unless otherwise agreed by Parent, the Company will, and will cause each of its Subsidiaries to to, and will use its reasonable best efforts, and shall use its reasonable best efforts to cause its and their respective officersits Subsidiaries’ Representatives to, employees and advisors and other Representatives, including legal and accounting advisors, to use its or their reasonable best effortsefforts to cooperate with Parent as reasonably requested by Parent in connection with Parent’s arrangement of the Financing (which, solely for purposes of this Section 5.06 and the use of the term Financing Party in this Section 5.06, shall include any alternative equity or debt financings, all or a portion of which will be used to provide to AbbVie fund the Cash Consideration). Such cooperation will include using reasonable best efforts to:
(i) cooperate with the marketing efforts of Parent for all or any part of the Financing, including making appropriate officers reasonably available, with appropriate advance notice, for participation in lender or investor meetings, due diligence sessions, meetings with ratings agencies and its Subsidiaries such road shows, and reasonable assistance in the preparation of confidential information memoranda, private placement memoranda, prospectuses, lender and investor presentations and similar documents as may be reasonably requested by AbbVie in writing that is customary in connection with the arrangingParent or any Financing Party, obtaining and syndication of the Financing, including using reasonable best efforts with respect to:
(i) participating in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject with respect to customary confidentiality provisions information relating to the Company and disclaimers)its Subsidiaries in connection with such marketing efforts;
(ii) timely furnishing AbbVie furnish Parent and its the Financing Sources Parties with historical financial the Required Financial Information and any other customary information (collectively, the “Financing Information”) with respect to Allergan the Company and its Subsidiaries as is reasonably requested by AbbVie Parent or its any Financing Sources Party and is customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) required for the marketing, arrangement and syndication of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if financings similar to the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements used in the preparation of customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary offering or information documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters or rating agency, lender presentations or road shows relating to the Financing;
(iviii) causing Allerganrequest that the Company’s independent auditors to accountants participate in drafting sessions and accounting due diligence sessions and cooperate with the Financing (including as set forth in the Debt Letters as in effect on the date of this Agreement) or in connection with a customary offering of securities, including the type described in the Commitment Letter, consistent with their customary practice, including requesting that they provide customary cooperation consents and comfort letters (including “negative assurance” comfort) to the extent required in connection with the marketing and syndication of the Financing (including as set forth in the Debt Letters as in effect on the date of this Agreement) or as are customarily required in an offering of securities of the type contemplated by the Financing;
(iv) obtain or provide certificates and other customary documents (other than legal opinions) relating to the Financing as reasonably requested by Parent;
(v) obtaining cooperate in satisfying the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts conditions precedent set forth in any Marketing Material and registration statements and related government filings filed definitive documentation relating to the Financing to the extent the satisfaction of such condition reasonably requires the cooperation of, or used in connection with is within the Financingcontrol of, the Company;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of furnish all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing required by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the a Governmental Entity or any Financing that relates to Party under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACTACT (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), to the extent reasonably requested by Purchaser at least 10 Business Days prior to the anticipated Closing Date;
(vii) assist Parent in obtaining any credit ratings from rating agencies contemplated by the Debt Letters; and
(viii) use reasonable best efforts to obtain such consents, waivers, estoppels, approvals, authorizations and instruments which may be requested by Parent in connection with the Financing; provided, further, that nothing in this Agreement shall require the Company to cause the delivery of (1) legal opinions or reliance letters or any certificate as to solvency or any other certificate necessary for the Financing, other than as allowed by Section 5.06(a)(iii), (2) any audited financial information or any financial information prepared in accordance with Regulation S-K or Regulation S-X under the Securities Act of 1933, as amended, or any financial information in a form not customarily prepared by the Company with respect to such period or (3) any financial information with respect to a month or fiscal period that has not yet ended or has ended less than forty-five (45) days prior to the date of such request.
(b) Notwithstanding anything to the contrary contained in this Section 7.9(a) or Section 7.9(b) below, Agreement (A) none of Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to including this Section 7.9(a) or Section 7.9(b) below to 5.06): (i) nothing in this Agreement (including this Section 5.06) shall require any such cooperation to the extent that it would (1) require the Company to pay any commitment or other fee fees, reimburse any expenses or otherwise incur any liability (other than third-party costs and expenses that are liabilities or give any indemnities prior to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c))the Closing, (ii2) execute unreasonably interfere with the ongoing business or deliver any definitive financing documents operations of the Company or its Subsidiaries, or (3) require the Company or any of the Company Subsidiaries to enter into or approve any agreement or other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be documentation effective prior to the Completion Date Closing and (ii) no action, liability or would be effective if obligation (including any obligation to pay any commitment or other fees or reimburse any expenses) of the Completion does not occur (except (x) to the extent required by Section 7.9(b)Company, applicable Allergan Supplemental Indenturesits Subsidiaries, (y) customary officers’ certificates or any of their respective Representatives under any certificate, agreement, arrangement, document or instrument relating to the execution thereof that would not conflict with applicable Law and would Financing shall be accurate in light of effective until the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant Closing. The Company hereby consents to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any use of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of and its Subsidiaries (provided Subsidiaries’ logos in connection with the Financing in a form and manner mutually agreed with the Company; provided, however, that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed logos are used solely in a manner that would is not result in the loss of any such privilege)intended, (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicablereasonably likely, to deliver a customary opinion of counsel to harm or disparage the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan Company or its Subsidiaries or any applicable Law. AbbVie of their respective subsidiaries or the reputation or goodwill of any of the foregoing.
(c) Parent shall cause (i) promptly upon request by the Company, reimburse the Company for all nonof its reasonable and documented out-public of-pocket fees and expenses (including reasonable fees and expenses of counsel and accountants) incurred by the Company, any of the Company Subsidiaries, any of its or their Representatives in connection with any cooperation contemplated by this Section 5.06 and (ii) indemnify and hold harmless the Company, the Company Subsidiaries and its and their Representatives against any claim, loss, damage, injury, liability, judgment, award, penalty, fine, cost (including cost of investigation), expense (including fees and expenses of counsel and accountants) or settlement payment incurred as a result of, or in connection with, such cooperation or the Financing and any information used in connection therewith other confidential information provided by than those claims, losses, damages, injuries, liabilities, judgments, awards, penalties, fines, costs, expenses and settlement payment arising out of or on behalf resulting from the gross negligence, fraud or willful misconduct of Allergan the Company, any of the Company Subsidiaries or any of its Subsidiaries or their respective Representatives pursuant to this Section 7.9 to be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained in connection with syndication as finally determined by a court of the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover Rulescompetent jurisdiction.
Appears in 2 contracts
Samples: Merger Agreement (Westar Energy Inc /Ks), Merger Agreement (Kansas City Power & Light Co)
Financing Cooperation. (a) Until Prior to the earlier Effective Time, the Company shall, and shall cause each Company Subsidiary to, and shall use reasonable best efforts to cause its Representatives to, provide Buyer with all cooperation reasonably requested by Buyer to assist it in causing the conditions in the Commitment Letter to be satisfied or as is otherwise reasonably requested by Buyer in connection with the Debt Financing. Without limiting the generality of the Completion foregoing and subject to the valid termination of this Agreement pursuant to and limitations set forth in accordance with Article 9Section 6.15(b), Allergan shall use its reasonable best effortsthe Company shall, and shall cause each of its the Company Subsidiaries to use its reasonable best effortsto, and shall use its reasonable best efforts to cause its Representatives to:
(i) furnish Buyer and their respective officers, employees the Financing Sources with the Required Information and advisors all other financial and other Representatives, including legal pertinent information and accounting advisors, to use their reasonable best efforts, to provide to AbbVie disclosures regarding the Company and its the Company Subsidiaries such assistance as may be reasonably requested by AbbVie in writing that is customary Buyer or the Financing Sources for use in connection with the arranging, obtaining and syndication of the Debt Financing, including using reasonable best efforts with respect to:in each case, prior to February 1, 2018;
(iii) participating in and assisting with the due diligence, syndication or other marketing of the Financing, including using participate at reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority times in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering including sessions with prospective lenders and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”rating agencies) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection otherwise cooperating with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, marketing efforts for the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable typeDebt Financing;
(iii) providing to AbbVie’s legal counsel and its independent auditors such assist with the preparation of customary documents rating agency presentations, confidential information memoranda and other similar documents in connection with the Debt Financing (including requesting customary information consents of accountants for use of their reports in any materials relating to Allergan the Debt Financing and its Subsidiaries the delivery of one or more customary representation letters and/or customary authorization letters authorizing the distribution of information to prospective lenders or investors and containing customary representations and warranties to the Financing Sources under the Commitment Letters, including with respect to the presence or absence of material non-public information and the accuracy of the written information contained in the disclosure and marketing materials related to the Debt Financing);
(iv) provide reasonable cooperation with the pledging of collateral in connection with the Debt Financing as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed by Buyer or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(viiv) causing assist Buyer in connection with the Financing to benefit from the existing lender relationships preparation and registration of Allergan any pledge and its Subsidiaries;
(viii) providing security documents and other definitive financing documents as may be reasonably requested request by AbbVie Buyer or the Financing Sources relating to and otherwise reasonably facilitating the repayment or refinancing pledging of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date collateral and the release granting of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, security interests in each case in accordance with the terms respect of the definitive Debt Financing, it being understood that such documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on will not take effect until the Completion)Effective Time;
(ixvi) procuring consents take such actions as are reasonably necessary to permit the Financing Sources to evaluate the Company’s and the Company Subsidiaries’ inventory, current assets, cash management and accounting systems, and policies and procedures relating thereto for the purpose of establishing collateral arrangements required to be established as of the Closing under the Commitment Letter;
(vii) if requested by Buyer or a Financing Source at least ten days prior to the reasonable use of all of Allergan’s logos in connection with Closing Date, provide Buyer and the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing Sources at least three (3) Business Days in advance of prior to the Completion Date such Closing Date, with all documentation and other information about Allergan with respect to the Company and its the Company Subsidiaries as is which Buyer or the Financing Source have reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Notwithstanding anything Patriot Act;
(viii) provide reasonable assistance in obtaining any consents of third parties necessary in connection with the Debt Financing;
(ix) delivering notices of prepayment within the time periods required by the relevant agreements governing any Company Indebtedness described on Section 7.1(c) of the Disclosure Schedule and obtaining customary payoff letters, lien terminations and instruments of discharge to be delivered at the contrary Closing, and giving any other necessary notices, to allow for the payoff, discharge and termination in this full at the Closing of all Company Indebtedness described on Section 7.9(a7.1(c) or Section 7.9(b) below, (A) none of Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment Disclosure Schedule or other fee or incur any liability (other than third-party costs and expenses that are Indebtedness required by the Commitment Letter to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except terminated;
(x) provide Buyer with such information to assist in the preparation of the pro forma financial statements identified in clause (vii) of Exhibit B of the Commitment Letter and other pro forma financial information and pro forma financial statements to the extent required by Section 7.9(b)the Financing Sources, applicable Allergan Supplemental Indenturesit being agreed that the Company will not be required to provide any information or assistance relating to (A) the proposed aggregate amount of the Debt Financing, (y) customary officers’ certificates together with assumed interest rates and fees and expenses relating to the execution thereof incurrence of the Debt Financing or (B) any post-Closing or pro forma cost savings, synergies, capitalization, ownership or other pro forma adjustments desired to be incorporated into any information used in connection with the Debt Financing;
(xi) cooperate in the replacement or backstop of any outstanding letters of credit issued for the account of the Company or any of the Company Subsidiaries
(xii) promptly after gaining knowledge thereof, supplementing the written information concerning the Company and the Company Subsidiaries furnished pursuant to this Section 6.14 to the extent that would any such information contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein not conflict with applicable Law and would be accurate materially misleading in light of the facts circumstances under which such statements were made; and
(xiii) take all corporate and circumstances at other actions, subject to the time delivered occurrence of the Closing, reasonably requested by Buyer to (1) permit the consummation of the Debt Financing, and (z2) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except facilitate the execution and delivery of definitive documents related to the Debt Financing on terms specified by the Commitment Letter to the extent required to be delivered as of Closing.
(b) Notwithstanding the provisions of this Section 6.15 or any applicable Allergan Supplemental Indentures)other provision of this Agreement, and (C) neither Allergan nor nothing in this Agreement will require the Company or any of its the Company Subsidiaries shall be required to (i) waive or amend any terms of this Agreement or agree to pay any fees or reimburse any expenses prior to the Effective Time for which it has not received prior reimbursement from Buyer, (ii) enter into any definitive agreement (other than, for the avoidance of doubt, the customary representation letters described in Section 6.15(a)(iii)) that is effective prior to the Effective Time, (iii) give any indemnities that are effective prior to the Effective Time, (iv) take or permit the taking of any action that would (i) unreasonably interfere unreasonably with the business or ongoing operations of Allergan the Company or its Subsidiariesthe Company Subsidiaries or result in material damage to, (ii) cause or the destruction of, any representation material property or warranty in this Agreement to be breached by Allergan assets of the Company or any of the Company Subsidiaries or (v) provide any information or take any action that will conflict with or violate its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan organizational documents or any of its Subsidiaries to incur any personal liability applicable Law or (iv) would result in a material violation or breach of, or a default under, any material Contract contract to which Allergan the Company or any of its Subsidiaries is a party. In addition, no action, liability or obligation of the Organizational Documents Company, any of Allergan or its the Company Subsidiaries or any applicable Lawof their respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to the Debt Financing will be effective until the Effective Time. AbbVie shall cause all Nothing in this Agreement will require any officer or Representative of the Company or any of the Company Subsidiaries to deliver any certificate or opinion or take any other action pursuant to this Section 6.14 or any other provision of this Agreement that would reasonably be expected to result in personal liability to such officer or Representative.
(c) All non-public or other confidential information provided by or on behalf of Allergan the Company or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to Agreement will be kept confidential in accordance with the Confidentiality Agreement; provided, except that Allergan acknowledges and agrees that the confidentiality undertakings that Buyer will be obtained permitted to disclose such information (i) as is legally required to be disclosed in any offering documents related to the Debt Financing or (ii) to any Financing Sources or prospective financing sources, rating agencies and other financial institutions and investors that are or may become parties to such financing and to any agents, arrangers or bookrunners in connection with syndication such financing (and, in each case, to their respective counsel and auditors) so long as such persons (a) agree to be bound by the Confidentiality Agreement as if parties thereto and (b) are subject to other confidentiality undertakings customary for financings of the same type as the Debt Financing.
(d) Buyer agrees to (i) indemnify, defend and hold harmless the Company, the Company Subsidiaries and their respective Representatives from and against any loss, damages, claim, cost, liability, obligation or expense suffered or incurred in connection with the Debt Financing, any arrangement thereof and any information provided in connection therewith except (A) historical information relating thereto or other information furnished in writing by or on behalf of the Company and the Company Subsidiaries for use therein or in connection therewith and (B) to the extent arising from the willful misconduct, gross negligence, fraud or intentional misrepresentation of the Company, the Company Subsidiaries or their respective Representatives and (ii) promptly, upon request of the Company, reimburse the Company and the Company Subsidiaries for all reasonable and documented out-of-pocket costs incurred by the Company or the Company Subsidiaries in connection with this Section 6.15.
(e) The Company hereby consents to the use of all logos of the Company and the Company Subsidiaries in connection with the Debt Financing will be so long as such logos (i) are used solely in a form customary for use in manner that is not intended to or likely to harm or disparage the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements Company or any of the Panel Company Subsidiaries or the reputation or goodwill of the Company or any of the Company Subsidiaries and (ii) are used solely in connection with a description of the Takeover RulesCompany, its business and products or the transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Stock Purchase Agreement, Stock Purchase Agreement (Shutterfly Inc)
Financing Cooperation. (a) Until the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan The Company shall use its reasonable best efforts, and shall cause each of its Subsidiaries to use its reasonable best efforts, and each of them shall use its their reasonable best efforts to cause its and their respective officers, employees and advisors and other Representatives, including legal and accounting advisors, Representatives to use their reasonable best efforts, to provide customary cooperation, to AbbVie and its Subsidiaries such assistance as may be the extent reasonably requested by AbbVie Parent in writing that is customary writing, in connection with the arrangingoffering, obtaining and syndication arrangement, syndication, consummation, issuance or sale of any Debt Financing or Alternative Financing obtained in accordance with Section 5.13 (provided, that such requested cooperation does not unreasonably interfere with the ongoing operations of the FinancingCompany or any of its Affiliates), including including, to the extent so requested, using reasonable best efforts with respect to:
(i) participating in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect furnish promptly to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection with Parent the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmationsInformation, and undertakings in connection with such other financial information regarding the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan Company and its Subsidiaries as is reasonably requested by AbbVie or Parent in connection with the Debt Financing;
(ii) assist Parent in its Financing Sources and customarily required in Marketing Material for Financings preparation of the applicable type, including all Historical Financial Statements and other customary pro forma financial information identified in paragraph 4 of Annex D to the Debt Commitment Letters with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable typeParent;
(iii) providing provide reasonable and customary assistance to AbbVie’s legal counsel Parent and its independent auditors such the Financing Parties in the preparation of (A) customary offering documents, offering memoranda, offering circulars, private placement memoranda, registration statements, prospectuses, syndication documents and other syndication materials, including information memoranda, lender and investor presentations, bank books and other marketing documents, and similar documents for any portion of the Debt Financing and (B) materials for rating agency presentations;
(iv) make senior management of the Company available, at reasonable times and locations and upon reasonable prior notice, to participate in meetings (including one-on-one conference or virtual calls with Financing Parties and potential Financing Parties), drafting sessions, presentations, road shows, rating agency presentations and due diligence sessions and other customary syndication activities, provided, at the Company’s option in consultation with Parent, any such meeting or communication may be conducted virtually by videoconference or other media;
(v) cause the Company’s independent registered accounting firm to provide customary assistance, including by using reasonable best efforts to cause the Company’s independent registered accounting firm to provide customary comfort letters (including “negative assurance” comfort, if customary and appropriate) in connection with any capital markets transaction comprising a part of the Debt Financing to the applicable Financing Parties and to participate in a reasonable number of due diligence sessions; provided, at the Company’s option, any such session may be conducted virtually by videoconference or other media, and including by using reasonable best efforts to provide customary representation letters to the extent required by such independent registered accounting firm in connection with the foregoing;
(vi) provide customary authorization letters authorizing the distribution of Company information relating to Allergan prospective lenders in connection with a syndicated bank financing;
(vii) assist in obtaining or updating corporate and its Subsidiaries facility credit ratings;
(viii) assist in the negotiation and preparation of any credit agreement, indenture, note, purchase agreement, underwriting agreement, guarantees and customary closing certificates, as may be reasonably requested by Parent, in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors each case as experts in any Marketing Material and registration statements and related government filings filed or used contemplated in connection with the Debt Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents make introductions of Parent to the reasonable use Company’s existing lenders and facilitate relevant coordination between Parent and such lenders;
(x) cooperate with internal and external counsel of all of Allergan’s logos Parent in connection with providing customary back-up certificates and factual information regarding any legal opinion that such counsel may be required to deliver in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); andDebt Financing;
(xxi) providing deliver, at least three (3) Business Days prior to Closing, to the extent reasonably requested in advance of the Completion Date such writing at least nine Business Days prior to Closing, all documentation and other information about Allergan regarding the Company and its Subsidiaries as that any Financing Party reasonably determines is reasonably requested in writing required by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Notwithstanding anything Patriot Act of 2001, and, to the contrary extent required by any Financing Party, a beneficial ownership certificate (substantially similar in this Section 7.9(aform and substance to the form of Certification Regarding Beneficial Owners of Legal Entity Customers published jointly, in May 2018, by the Loan Syndications and Trading Association and Securities Industry and Financial Markets Association) in respect of any of the Company or Section 7.9(bany of its Subsidiaries that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation (31 C.F.R. § 1010.230);
(xii) belowat Parent’s written request, cooperate with and use reasonable best efforts to provide all reasonable assistance to Parent in connection with any steps Parent may determine are necessary or desirable to take to (A) obtain consent for the Change of Control under and as defined in the Company Credit Agreement arising from consummation of the transactions contemplated by this Agreement, including facilitating and participating in communications with lenders under the Company Credit Agreement in relation to a Change of Control amendment request; provided that any such documentation prepared by the Company, its Subsidiaries and Representatives in connection with the foregoing shall be reasonably acceptable to Parent, and/or (B) prepay some or all amounts outstanding under the Company Credit Agreement, including (1) using reasonable best efforts to prepare and submit customary notices in respect of any such prepayment provided that such prepayment shall be contingent upon the occurrence of the Closing unless otherwise agreed in writing by the Company, and (2) using reasonable best efforts to obtain from the Company Credit Agreement agent a customary payoff letter in respect of the Company Credit Agreement;
(xiii) at Parent’s written request, cooperate with and use reasonable best efforts to provide all reasonable assistance to Parent in connection with any amendments to (A) the Financing Agreement, dated as of February 21, 2012, between The Kansas City Southern Railway Company and the United States of America, represented by the Secretary of Transportation acting through the Administrator of the Federal Railroad Administration and (B) the Financing Agreement, dated as of June 28, 2005, between Texas Mexican Railway Company and the United States of America, represented by the Secretary of Transportation acting through Administrator of the Federal Railroad Administration;
(xiv) on the Closing Date but immediately following the Closing, at Parent’s request (which may be prior to the Closing Date), execute such documentation as is reasonably requested so that the Company can assume the Debt Commitment Letters in respect of the Company Credit Agreement (to the extent the debt commitments thereunder have not been terminated at Closing in accordance with their terms); and
(xv) consent 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 or the Company’s or its Subsidiaries’ reputation or goodwill.
(b) The foregoing notwithstanding, none of Allergan the Company nor any of its Subsidiaries Affiliates shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to 5.12 that would: (i) pay require the Company or its Subsidiaries or any commitment of their respective Affiliates or other fee any persons who are officers or incur any liability (other than third-party costs and expenses that are directors of such entities to be promptly reimbursed by AbbVie upon request by Allergan pursuant pass resolutions or consents to Section 7.9(c))approve or authorize the execution of the Debt Financing or enter into, (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document document, instrument or instrument, agreement or agree to any change to or modification of any existing agreement, certificate, document document, instrument or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur agreement (except (x) to for the extent required authorization letters contemplated by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered5.12(a)(vi)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan the Company or any of its Subsidiaries (unless waived by AbbVie)Affiliates, (iii) require the Company or any of its Affiliates to (x) pay any commitment or other similar fee or (y) incur any other expense, liability or obligation which expense, liability or obligation is not reimbursed or indemnified hereunder in connection with the Debt Financing prior to the Closing, or (z) have any obligation of the Company or any of its Affiliates under any agreement, certificate, document or instrument be effective until the Closing, (iv) cause any director, officer or officer, employee or shareholder stockholder of Allergan the Company or any of its Subsidiaries Affiliates to incur any personal liability liability, (v) conflict with the Organizational Documents of the Company or any of its Affiliates or any Laws, (ivvi) reasonably be expected to result in a material violation or material breach of, or a default (with or without notice, lapse of time, or both) under, any material Contract to which Allergan the Company or any of its Subsidiaries Affiliates is a partyparty (other than the Change of Control under and as defined in the Company Credit Agreement resulting from the consummation of the Merger), (vii) provide access to or disclose information that the Company or any of its Affiliates determines would jeopardize any attorney-client privilege or other applicable privilege or protection of the Company or any of its Affiliates, (viii) require the Company to prepare any financial statements or information (other than the Financing Information) that are not available to it and prepared in the ordinary course of its financial reporting practice, or (ix) require the Company to prepare or deliver any Excluded Information. Nothing contained in this Section 5.12 or otherwise shall require the Company or any of its Affiliates, prior to the Closing, to be an issuer or other obligor with respect to the Debt Financing. Parent shall, promptly on request by the Company, reimburse the Company or any of its Affiliates for all reasonable out-of-pocket costs incurred by them or their respective representatives in connection with such cooperation and shall indemnify and hold harmless the Company and its Affiliates and their respective representatives from and against any and all losses suffered or incurred by them in connection with the arrangement of the Debt Financing, any action taken by them at the request of Parent or its representatives pursuant to this Section 5.12 and any information used in connection therewith.
(c) The parties hereto acknowledge and agree that the provisions contained in this Section 5.12 represent the sole obligation of the Company and its Subsidiaries with respect to cooperation in connection with the arrangement of any financing (including the Debt Financing) to be obtained by Parent with respect to the transactions contemplated by this Agreement, and no other provision of this Agreement (including the Exhibits and Schedules hereto) shall be deemed to expand or modify such obligations. In no event shall the receipt or availability of any funds or financing (including the Debt Financing) by Parent any of its Affiliates or any other financing or other transactions be a condition to any of Parent’s obligations under this Agreement. Notwithstanding anything to the contrary in this Agreement, the Organizational Documents Company’s breach of Allergan or its Subsidiaries or any applicable Law. AbbVie of the covenants required to be performed by it under this Section 5.12 shall not be considered in determining the satisfaction of the condition set forth in Section 6.3(b), unless such breach is the primary cause all of Parent being unable to obtain the proceeds of the Debt Financing at the Closing.
(d) All non-public or other otherwise confidential information provided by or on behalf of Allergan regarding the Company or any of its Subsidiaries Affiliates obtained by Parent or Representatives its representatives pursuant to this Section 7.9 to 5.12 shall be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges Parent shall be permitted to disclose such information to (i) the Financing Parties subject to their confidentiality obligations under the Debt Commitment Letters and agrees that the confidentiality undertakings that will be obtained definitive documentation evidencing the Debt Financing and (ii) otherwise to the extent necessary and consistent with customary practices in connection with syndication of the Debt Financing will be in a form subject to customary for use in confidentiality arrangements reasonably satisfactory to the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover RulesCompany.
Appears in 2 contracts
Samples: Merger Agreement (Canadian National Railway Co), Merger Agreement (Kansas City Southern)
Financing Cooperation. (a) Until From the earlier of date hereof until the Completion and Closing Date, the valid termination of this Agreement pursuant to and in accordance with Article 9Company shall provide, Allergan shall use its reasonable best efforts, and shall cause each of its the Company Subsidiaries to use its reasonable best effortsprovide, and shall use its reasonable best efforts to cause its and their respective officers, employees and advisors and other Representatives, including legal and accounting advisorsRepresentatives to provide, to use their reasonable best efforts, to provide to AbbVie Parent and its Subsidiaries such assistance as may be Acquisition Sub all cooperation reasonably requested by AbbVie in writing that is customary Parent and Acquisition Sub in connection with the arrangingconsummation, obtaining arrangement, marketing and syndication of the Debt Financing or any replacement, amended, modified or alternative financing permitted by this Agreement (collectively with the Debt Financing, the “Available Financing”), including by using its reasonable best efforts with respect to:
(i) participating in promptly upon request by Parent, to furnish Parent and assisting with Acquisition Sub the due diligence, syndication or Required Financial Information and such other marketing financial information other pertinent information and disclosures regarding the Company and the Company Subsidiaries as may be available to Company and customary and necessary to permit the consummation of the Available Financing, including using (ii) to participate, in each case upon reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority notice, at agreed times and places, in a reasonable number of meetingsmeetings (including one-on-one meetings or conference calls) with parties acting as agents or arrangers for, and prospective lenders of, the Available Financing for the Transactions, presentations, road shows, drafting due diligence sessions, due diligence drafting sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan cooperate with the marketing or solicitation efforts of Parent and upon reasonable noticeAcquisition Sub and their financing sources, in each case as reasonably requested by Parent and Acquisition Sub and reasonably required in connection with the Available Financing, (Biii) assisting as reasonably requested by Parent, to assist Parent with AbbVie’s the preparation of customary materials for registration statementsrating agency presentations, marketing materials, offering documentsmemoranda and bank information memoranda (including with respect to presence of absence of material non-public information relating to the Company and the Company Subsidiaries and the accuracy of the information relating to the Company and the Company Subsidiaries contained therein), lender presentations and offering documents in connection with the Debt Financing, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations prospectuses and similar documents required in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related theretoAvailable Financing, (Civ) delivering and consenting to the inclusion if reasonably requested by Parent or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings Acquisition Sub in connection with the Marketing Material (in each case, as applicable, Available Financing and subject to Parent and Acquisition Sub providing funds necessary to repay amounts outstanding under the Credit Agreement (and cash collateralizing all letters outstanding thereunder) as of the Effective Time, (A) to obtain and provide to Parent a customary confidentiality provisions payoff letter(subject to and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectivelyconditioned upon, or to be executed upon, the “Financing Information”Closing) with respect to Allergan the Credit Agreement, and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of provide by the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents Closing Date all documentation and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used required in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Available Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to bank regulatory authorities under applicable “know your know-your-customer” and anti-money laundering rules and regulationsregulations and requested from the Company in writing at least five (5) business days prior to the Closing Date, including without limitation(v) to assist in the preparation and execution of any customary credit agreements (or amendments thereto), pledge and security documents, guarantees, indentures, purchase agreements, and other customary definitive documentation relating to the USA PATRIOT ACT. Notwithstanding Available Financing, (vi) to facilitate the granting of a security interest (and perfection thereof) in collateral owned by the Company and the Company Subsidiaries; provided, however, that notwithstanding anything to the contrary in this Section 7.9(a7.14 (including clauses (v) and (vi) of this clause (a)) no obligation of the Company or Section 7.9(bany of the Company Subsidiaries under any agreement, certificate, document or instrument (and no security interest in any assets of the Company or any of the Company Subsidiaries) belowexecuted in connection with the Available Financing shall be effective until the Closing, and (Avii) none upon the reasonable request of Allergan Parent and Acquisition Sub, to assist Parent and Acquisition Sub in obtaining customary accountant’s comfort letters customary for financings similar to the Available Financing.
(b) Notwithstanding the foregoing, neither the Company nor any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action 7.14 that would (i) interfere unreasonably with contravene any applicable Law or require the business Company or operations any of Allergan the Company Subsidiaries to disclose information subject to any attorney-client, attorney work product or other legal privilege (provided, however, that the Company shall use its Subsidiariesreasonable best efforts to allow for such access or disclosure to the maximum extent that does not result in a loss of any such attorney-client, attorney work product or other legal privilege), (ii) cause any covenant, representation or warranty in this Agreement to be breached by Allergan the Company or any of the Company Subsidiaries, (iii) require the Company or any of its Subsidiaries to pay any commitment or other fee or incur any other expense (unless waived by AbbVieexcept to the extent Parent promptly reimburses such expense), liability or obligation in connection with the Available Financing prior to the Closing, (iiiiv) cause any director, officer or employee or shareholder stockholder of Allergan the Company or any of its the Company Subsidiaries to incur any personal liability liability, (v) require the Company, the Company Subsidiaries or any Persons who are directors of the Company or the Company Subsidiaries to pass resolutions or consents to approve or authorize the execution of the Available Financing, (ivvi) result require the Company, the Company Subsidiaries or any Persons who are officers of the Company or the Company Subsidiaries to execute or deliver any certificate, document, instrument or agreement or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing (provided that in a material violation or breach of, or a default under, any material Contract to which Allergan no event shall this Section 7.14 require the Company or any of the Company Subsidiaries to cause any officer 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), (vii) cause any director, officer, or employee or stockholder of the Company or any Company Subsidiary to incur any personal liability, or (viii) unreasonably interfere with the business of the Company and the Company Subsidiaries. Nothing in this Section 7.14 or otherwise shall require the Company or any of the Company Subsidiaries, prior to the Closing, to be an issuer or other obligor with respect to any of the Available Financing. The Company hereby consents to the reasonable use of its and the Company Subsidiaries’ logos in connection with the Available Financing; provided, that such logos shall be used solely in a manner that is not intended or reasonably likely to harm, disparage or otherwise adversely affect the Company or any of the Company Subsidiaries.
(c) Parent shall, promptly upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs incurred by the Company or the Company Subsidiaries is a partyor their respective Representatives in connection with such cooperation pursuant to this Section 7.14 and shall indemnify and hold harmless the Company and the Company Subsidiaries and their respective Representatives from and against any and all losses suffered or incurred by them in connection with the arrangement of the Available Financing, any action taken by them at the request of Parent or Acquisition Sub pursuant to this Section 7.14, and any information used in connection therewith (other than information provided in writing by the Company or the Company Subsidiaries specifically in connection with its obligations pursuant to this Section 7.14).
(d) For the avoidance of doubt, the Organizational Documents parties hereto acknowledge and agree that the provisions contained in this Section 7.14 represent the sole obligation of Allergan the Company, the Company Subsidiaries and their respective Representatives with respect to cooperation in connection with the arrangement of any financing (including any Available Financing) to be obtained by Parent or its Subsidiaries Acquisition Sub with respect to the Transactions and no other provision of this Agreement (including the Exhibits and Schedules hereto) shall be deemed to expand or any applicable Law. AbbVie shall cause all modify such obligations.
(e) All non-public or other otherwise confidential information provided regarding the Company or its Subsidiaries obtained by or on behalf of Allergan Parent, Acquisition Sub, or any of its Subsidiaries or their respective Representatives pursuant to this Section 7.9 to 7.14 shall be kept confidential in accordance with the Confidentiality Agreement; provided. Notwithstanding the foregoing or anything to the contrary contained herein or in the Confidentiality Agreement, that Allergan acknowledges Parent and agrees the Company, as the parties to the Confidentiality Agreement, hereby agree that the confidentiality undertakings that will sharing of such confidential information with, and the use of such information by, the Debt Providers shall be obtained in connection with syndication of permitted subject to the Financing will be in a form customary for use terms set forth in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover RulesDebt Commitment Letter so long as such information is disclosed subject to customary confidentiality arrangements.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Fairchild Semiconductor International Inc), Agreement and Plan of Merger (On Semiconductor Corp)
Financing Cooperation. (a) Until the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan shall use its reasonable best efforts, and shall cause each of its Subsidiaries to use its reasonable best efforts, and The Company shall use its reasonable best efforts to provide, and to cause its Subsidiaries and each of their respective officers, employees and advisors and other Representatives, including legal and accounting advisorsRepresentatives to provide, to use their Parent and Purchaser, reasonable best efforts, to provide to AbbVie and its Subsidiaries such assistance as cooperation that may be reasonably requested by AbbVie in writing Parent and Purchaser and that is customary necessary or customary, proper or advisable in connection with the arrangingarrangement of any loan transaction or capital markets debt financing (whether public or private) undertaken by Parent in contemplation of the consummation of the Transaction (any such financing, obtaining the “Financing”), including reasonable cooperation, in each case to the extent reasonably requested: (i) to provide, within a reasonable amount of time following such reasonable request, to Parent, Purchaser and syndication their Financing Sources material financial and other pertinent information with respect to the Company and its Subsidiaries and the Transactions, including information and projections prepared by the Company relating to the Acquired Corporations required in connection with the preparation of the Finance Offering Documents and diligence documentation reasonably requested by persons in connection with the Financing; (ii) to cooperate with the marketing efforts of Parent, Purchaser and their Financing Sources for any of the Financing, including using causing its Representatives to participate, during normal working hours and upon reasonable best efforts with respect to:
(i) participating notice, in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable a reasonable number of times; (iii) to Allergan and upon reasonable notice, (B) assisting assist with AbbVie’s the preparation of customary materials relating to the Acquired Corporations for registration statementsrating agency presentations, lender presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency road show presentations and similar documents required (including assisting with the preparation of pro forma financial statements meeting the requirements of SEC Regulation S-X) necessary, proper or advisable in connection with the Financing (collectively, the “Marketing MaterialFinance Offering Documents”); (iv) and due diligence sessions related thereto, (C) delivering and consenting to assist Parent in obtaining consents of the inclusion or incorporation Company’s auditors for use of their reports in any SEC filing related materials relating to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents customary “comfort letters” (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions assurances and customary comfort “bring-down” letters relating to from the Financing;
(iv) causing AllerganCompany’s independent auditors to provide accountants on customary cooperation with the Financing;
terms); and (v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of provide all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to required under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACTAct. Notwithstanding anything the foregoing, (i) no obligation of the Company or its Subsidiaries under any certificate, document or instrument executed pursuant to the contrary foregoing shall be effective until the Offer Acceptance Time (or such later time set forth in this Section 7.9(asuch certificate, document or instrument), and neither the Company nor its Subsidiaries nor any of their respective Representatives shall be required to take any action under any such certificate, document or instrument that is not contingent upon the consummation of the Offer (including the entry into any agreement that is effective before consummation of the Offer) or Section 7.9(b) belowthat would be effective prior thereto or take any corporate actions prior to the Closing, (Aii) none nothing herein shall require cooperation to the extent that such cooperation would, in the good faith determination of Allergan the Company, interfere unreasonably with the business or operations of the Company or its Subsidiaries, (iii) neither the Company nor any of its Subsidiaries shall be required to waive or amend any terms of this Agreement, (iv) neither the Company nor any of its Subsidiaries shall be required to take or permit the taking of any action that will conflict with or violate its organizational documents or any applicable Legal Requirement, and (v) neither the Company nor any of its Subsidiaries shall be required to issue any offering or information document (other than as required to comply with the Company’s obligations pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c6.13)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light . None of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan Company nor any of its Subsidiaries shall be required to take or permit the taking of any action that would subject it to actual or potential liability, to bear any cost or expense or to pay any commitment or other similar fee or make any other payment (iother than reasonable out-of-pocket costs that will be reimbursed by Parent pursuant to clause (b) interfere unreasonably or incur any other liability or provide or agree to provide any indemnity in connection with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan Financing or any of the foregoing that would be effective prior to the Closing. The Company hereby consents to the use of the logos of the Company and its Subsidiaries (unless waived by AbbVie)in connection with the syndication or marketing of the Financing; provided that such logos are used in a manner that is reasonable and customary in connection with a Financing, (iii) cause and any directorin event, officer not intended to harm or employee or shareholder of Allergan or any of disparage the Company, its Subsidiaries to incur any personal liability or their marks.
(ivb) result in a material violation or breach Parent shall, promptly upon written request by the Company, reimburse the Company for all reasonable out-of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, -pocket costs incurred by the Organizational Documents of Allergan Company or its Subsidiaries in connection with their cooperation and indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all losses, damages, claims, interest, awards, judgments, penalties, settlements, costs or any applicable Law. AbbVie shall cause all non-public expenses (including reasonable attorneys’ fees) suffered or incurred by them to the extent such losses, damages, claims, interest, awards, judgments, penalties, settlements, costs or expenses arose out of the actions taken by the Company, its Subsidiaries or their respective Representatives pursuant to this Section 6.13 (other confidential than information provided by the Company, its Subsidiaries or on behalf their respective Representatives in writing for express use therein), except to the extent such losses, damages, claims, interest, awards, judgments, penalties, settlements, costs or expenses are determined by a final non-appealable judgment of Allergan a court of competent jurisdiction to have arisen out of or resulted from the gross negligence or willful misconduct of the Company, any of its Subsidiaries or Representatives any of their respective Representatives.
(c) Notwithstanding anything herein to the contrary, Parent and Purchaser acknowledge and agree that obtaining the Financing is not a condition to consummation of the Transactions, and that, irrespective and independently of the availability of the Financing, Parent and Purchaser shall be obligated to pay for the tendered Shares and consummate the Merger and the other Transactions as provided herein, subject to the satisfaction or waiver of the Offer Conditions or the conditions set forth in Section 7, as applicable. Notwithstanding anything in this Agreement to the contrary, the condition set forth in clause (c) of Annex I, as it applies to the Company’s obligations pursuant to this Section 7.9 to 6.13, shall be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained in connection with syndication of the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover Rulesdeemed satisfied.
Appears in 2 contracts
Samples: Merger Agreement (Celgene Corp /De/), Merger Agreement (Juno Therapeutics, Inc.)
Financing Cooperation. (a) Until From the date hereof until the earlier of the Completion Closing and the valid termination of this Agreement pursuant to and in accordance with Article 9Agreement, Allergan shall use its reasonable best effortsthe Company shall, and shall cause each of its Subsidiaries to use its reasonable best efforts, and shall use its reasonable best efforts to cause its the other Company Entities and their respective officers, directors, principals, managers and employees and advisors and other Representativesto, including legal and accounting advisors, to use their commercially reasonable best efforts, efforts to provide to AbbVie the following assistance and its Subsidiaries such assistance as may be reasonably requested by AbbVie in writing that is customary cooperation in connection with the arrangingfinancing contemplated by the executed commitment letter, obtaining and syndication dated as of the date hereof, from the Financing Sources party thereto (the "Debt Commitment Letter") or any other commitment to provide financing in connection with the transactions contemplated by this Agreement (such financing contemplated by the Debt Commitment Letter or such other commitment letter, the "Financing, including using reasonable best efforts with respect to:"):
(i) participating making senior management and officers of any Company Entity reasonably available during normal business hours on a virtual (as opposed to in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect person) basis to (A) the participation by members of management of Allergan with appropriate seniority participate in a reasonable number of meetings, presentationscalls, road shows, drafting and diligence sessions, and up to two customary lender due diligence sessions presentations in connection with the Financing and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (By) assisting as is reasonably necessary with AbbVie’s the preparation of customary materials for registration statementslender presentations, offering documents, private placement memorandarating agency presentations, bank information memoranda (including confidential information memoranda), prospectuses, rating agency presentations and similar documents required in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers)Financing;
(ii) timely furnishing AbbVie and its allowing Purchasers to provide the Financing Sources with historical financial and other customary information (collectivelySources, subject to confidentiality restrictions, access to the Financial Statements, the “Financing Information”) with respect Data Room, and any other pertinent information regarding the Company Entities or the business of the Company Entities that has been made available to Allergan Purchasers or that is readily available to Seller or the Company and its Subsidiaries as is has been reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable typePurchasers;
(iii) providing to AbbVie’s legal counsel and its independent auditors such furnishing Purchasers with customary documents and other customary financial information relating to Allergan and its Subsidiaries of the Company Entities as may be reasonably requested by either Purchaser or the Financing Sources in connection with their delivery the Financing, including financial statements, pro forma financial statements of any customary negative assurance opinions the Company Entities (provided that the preparation of combined pro forma financial information and the assumptions underlying the pro forma adjustments to be made are the responsibility of Purchasers), and reasonable and customary comfort authorization letters relating to the FinancingFinancing Sources authorizing the distribution of information about the Company Entities to prospective lenders and containing customary information and confidentiality provisions;
(iv) causing Allergan’s independent auditors reasonably assisting with the preparation of schedules to provide customary cooperation with the definitive documentation for the Financing;
(v) obtaining (w) cooperating with Financing Sources due diligence investigation and evaluation of the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan Company Entities’ assets, cash management and to references to such independent auditors as experts in any Marketing Material accounting systems, policies and registration statements and related government filings filed or used in connection with the Financing;
procedures relating thereto, (vix) obtaining Allergan’s independent auditors’ customary comfort payoff letters to allow for the payoff, discharge and assistance with termination in full upon the accounting due diligence activities occurrence of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships Closing of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any all indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date Company Entities and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing Liens securing such indebtedness (provided other than Permitted Liens), (y) taking reasonable actions that any such notice or payoff letter shall be expressly conditioned on are necessary to permit the Completion);
(ix) procuring consents consummation of the Financing pursuant to the reasonable use of all of Allergan’s logos in connection with the Debt Commitment Letter (including any Permanent Financing (provided that such logos are used solely as defined in a manner that is not intended to the Debt Commitment Letter)), and is not (z) obtaining customary accountants' comfort letters and audit reports as reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries)requested by Purchasers; and
(xvi) providing at least three seven (37) Business Days in advance of business days prior to the Completion Date such Closing Date, providing all documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date Financing Sources in connection with the Financing that relates to applicable “"know your customer” " and anti-money laundering rules and regulations, including without limitationthe USA Patriot Act of 2001 and 31 C.F.R. § 1010.230 (provided that Purchasers shall be responsible for the preparation of the beneficial ownership certificates that will be effective upon the Closing), to the extent requested in writing by either Purchaser at least nine (9) business days prior to the Closing Date; provided that (i) other than pursuant to customary authorization letters, none of (x) Seller or any of its Affiliates (other than the Company Entities) or Representatives or (y) prior to the Closing, the USA PATRIOT ACTCompany Entities shall be required to incur any Liability or obligation (including any obligation to pay any commitment fee or closing payment or give any indemnities to any third party) in respect of the Financing or any assistance provided in connection with the Financing, and (ii) none of Seller or any of its Affiliates, nor any Company Entity nor any of their respective Representatives shall have any obligation to approve, authorize or ratify the execution of any of the definitive documents in respect of the Financing, except, in the case of the Company Entities, to the extent effective after the Closing. Notwithstanding anything to the contrary contained herein, nothing in this Section 7.9(a6.08 shall require any such cooperation or assistance to the extent that it would reasonably be expected to result in any Company Entity being required to (I) or Section 7.9(bpledge any assets as collateral until the occurrence of the Closing, (II) belowtake any actions to the extent such actions would, in the Company's reasonable judgment, (A) none unreasonably and materially interfere with the ongoing business or operations of Allergan nor the Company Entities, (B) subject any director, manager, officer or employee of any Company Entity or any of its Subsidiaries shall their Affiliates to any actual or potential personal liability, (C) require any Company Entity to change any fiscal period or (D) cause (x) any representation or warranty set forth in Article III or Article IV to be required inaccurate or breached, (y) any condition set forth in Section 2.01 to fail to be satisfied or (z) any other breach of this Agreement, (III) waive or amend any terms of this Agreement, (IV) commit to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay under any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case instrument that would be effective prior to is not contingent upon the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental IndenturesClosing, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iiiV) provide access to to, or disclose disclose, information that Allergan or any of its Subsidiaries the Company reasonably determines would jeopardize any attorney-client privilege of Allergan of, or conflict with any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries confidentiality requirements applicable to, use the Company Entities or their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations Affiliates or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iiiVI) cause any director, manager, officer or employee equivalent of the Company Entities or shareholder their Affiliates to pass resolutions to approve the Financing or authorize the creation or execution of Allergan any agreements, documents or actions in connection therewith (other than any director, manager, officer or equivalent of the Company Entities who will continue in such a position following the Closing and the passing of such resolutions), in each case, that are not contingent on the Closing or would be effective prior to the Closing. Purchasers acknowledge and agree that obtaining the Financing is not a condition to the Closing and that notwithstanding anything contained in this Agreement to the contrary, Purchasers' obligations hereunder are not conditioned in any manner upon obtaining the Financing or any other financing. In the event the Financing has not been obtained, Purchaser will continue to be obligated, subject to the satisfaction or waiver of its Subsidiaries the conditions set forth in Section 2.01, to incur consummate the Closing. The Company hereby consents to the reasonable use of the Company Entities' trademarks, service marks and logos solely in connection with the Financing and the other transactions contemplated by this Agreement.
(b) Purchasers shall be responsible for all fees and expenses related to the Financing. Accordingly, Purchasers shall promptly reimburse the Company for all reasonable and documented out-of-pocket costs and expenses (including reasonable outside attorneys' fees of one counsel and fees and expenses of the Company Entities' accounting firms engaged to assist in connection with the Financing, including performing additional requested procedures, reviewing any personal liability offering documents and participating in any meetings) incurred by any Company Entity in connection with their cooperation pursuant to this Section 6.08 or (iv) result otherwise in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a partyconnection with the Financing. Purchasers shall indemnify and hold harmless Seller, the Organizational Documents Company Entities and their respective Affiliates and all of Allergan their respective directors, officers, managers, employees and representatives from and against any and all Liabilities suffered or its Subsidiaries or incurred by them in connection with the arrangement of the Financing and any applicable Law. AbbVie shall cause all non-public or other confidential information provided utilized in connection therewith, except to the extent arising from (x) information furnished in writing by or on behalf of Allergan the Company Entities or any of its Subsidiaries (y) the gross negligence, bad faith or Representatives pursuant to this Section 7.9 to be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained in connection with syndication Fraud of the Financing will be in a form customary for use in Company, the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover RulesCompany Entities or Seller.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Utz Brands, Inc.), Stock Purchase Agreement (Utz Brands, Inc.)
Financing Cooperation. (a) Until From the Agreement Date to the earlier of the Completion Closing Date and the valid termination of date this Agreement pursuant to and is validly terminated in accordance with Article 9its terms, Allergan the Company shall use its commercially reasonable best efforts, and shall cause each of its Subsidiaries to use its reasonable best efforts, other Acquired Company and shall use its reasonable best efforts to cause its and their respective officers, employees and advisors and other Representatives, including legal and accounting advisors, Representatives to use their commercially reasonable best efforts, to provide to AbbVie Parent and its Subsidiaries such assistance as may be Purchaser with all cooperation reasonably requested by AbbVie Parent or Purchaser to assist Parent or Purchaser to consummate the Debt Financing on or prior to the Closing Date or as is otherwise customary and reasonably requested in writing that by Parent or Purchaser in connection with the Debt Financing in each case, to the extent such cooperation is necessary and customary in connection with debt financings similar to the arranging, obtaining debt financing for the transactions contemplated by this agreement (the “Debt Financing”) and syndication of the Financingat Parent’s and/or Purchaser’s sole cost and expense, including using commercially reasonable best efforts with respect to:
(i) participating in and assisting with subject to the due diligence, syndication or other marketing terms of the FinancingNon-Disclosure Agreement, including using reasonable best efforts with respect deliver to Parent and Purchaser the Financing Information (provided that (A) Parent and Purchaser shall be responsible for the participation by members preparation of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions such pro forma financial statements and sessions with prospective lenders, investors any pro forma adjustments giving effect to the transactions contemplated herein and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVieCompany’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting assistance shall relate solely to the inclusion or incorporation in any SEC filing related to financial information and data derived from the Financing of the Company’s historical audited consolidated financial statements books and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimersrecords);
(ii) timely furnishing AbbVie participate in and its Financing Sources cause the Company’s management team, with historical financial appropriate seniority and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable typeexpertise, including all Historical Financial Statements senior officers, to participate in a reasonable and other customary information with respect to Allergan number of drafting sessions and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements due diligence sessions to the extent so reasonably required in connection with the Debt Financing on reasonable advance written notice and at mutually agreeable times (which audit reports participation shall not be subject limited to any “going concern” qualificationsteleconference or virtual meeting platforms), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
furnish no later than four (iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (34) Business Days in advance of prior to the Completion Closing Date such all documentation and other information about Allergan and its Subsidiaries as that is reasonably requested in writing by AbbVie at least ten Parent or Purchaser no later than nine (109) Business Days in advance of days prior to the Completion Closing Date that is required by regulatory authorities in connection with the Financing that relates to applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Notwithstanding anything Act, relating to the contrary Acquired Companies; and
(iv) reasonably assisting Parent and Purchaser in connection with the preparation of any pledge and security documents and other definitive financing documents (including schedules thereto) as may be reasonably requested by Parent, Purchaser or the Debt Financing Sources and otherwise reasonably cooperating with Parent and Purchaser in facilitating the pledging of collateral and the granting of security interests required by the Debt Commitment Letters.
(b) Nothing in this Section 7.9(a) 7.14 will require the Company or Section 7.9(b) below, (A) none of Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) waive or amend any terms of this Agreement or agree to pay any commitment fees or other fee or incur reimburse any liability (other than third-party costs and expenses that are prior to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c))the Effective Time, (ii) execute or deliver enter into any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case instrument that would be effective prior to the Completion Date Effective Time or would be effective if that is not contingent on the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light occurrence of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above)Effective Time, (iii) provide give any indemnities that are effective prior to the Effective Time, (iv) take any action that, in the good faith determination of the Company, would unreasonably interfere with the ordinary conduct of the business of the Company and its Subsidiaries or would require an action that is not within the control of the Company using commercially reasonable efforts, (v) take any action or fail to take any action in a manner that would reasonably be expected to conflict with or violate applicable Law or any Contract, (vi) requires the provision of access to or disclose information that Allergan any Acquired Company determines in good faith could jeopardize any attorney client privilege of, or conflict with any confidentiality obligations binding on any Acquired Company or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege)Affiliates, (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit requires the taking of any action that could subject any director, officer, employee, agent, manager, consultant, advisor or other representative of the Acquired Companies or any of their Affiliates to any actual or potential personal liability, (viii) requires the delivery of any financial or other information that is not currently readily available or prepared in the ordinary course of business of the Acquired Companies and at the time requested by Parent or (ix) causes any condition to Closing to fail to be satisfied or would reasonably be expected to conflict with, violate or result in a breach of or default under any Contract (including this Agreement) or any Organizational Document of any Acquired Company; provided, however, in no event shall anything in this Agreement require members of the board of managers, board of directors or similar governing body of any Acquired Company who will not continue in such capacities in respect of the Surviving Company as of the Closing Date to execute any consent or adopt resolutions, in each case, approving or otherwise relating to the Debt Financing. In addition, no action, liability or obligation of the Company, any of its Subsidiaries or any of their respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to the Debt Financing will be effective until the Effective Time, and neither the Company nor any of its Subsidiaries will be required to take any action pursuant to any certificate, agreement, arrangement, document or instrument that is not contingent on the occurrence of the Closing or that must be effective prior to the Effective Time. Parent shall, promptly upon request by the Company (i) interfere unreasonably with reimburse the business or operations of Allergan or its Subsidiaries, Company for all reasonable and documented out-of-pocket costs (iisuch as reasonable and documented travel costs and attorneys’ fees) cause any representation or warranty in this Agreement to be breached actually incurred by Allergan the Acquired Companies or any of its Subsidiaries or their respective Representatives in connection with its cooperation pursuant to this Section 7.14; and (unless waived ii) indemnify and hold harmless the Acquired Companies and its and their respective Representatives from and against any and all losses suffered or incurred by AbbVie)them in connection with the arrangement of the Debt Financing, any action taken by them pursuant to this Section 7.14, and any information used in connection therewith; in each case, except to the extent suffered or incurred as a result of the bad faith, gross negligence, willful misconduct, or fraud by any Acquired Company or their respective Representatives. This Section 7.14(b) is intended to be for the benefit of each of the Acquired Companies and their respective Affiliates and may be enforced by any such Person as if such Person were a party to this Agreement.
(iiic) cause any director, officer or employee or shareholder The Company hereby consents to the reasonable use of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result the Acquired Companies’ logos and other trademarks in connection with the Debt Financing in a material violation manner usual and customary for debt financings of a type similar to the Debt Financing; provided, that such logos and trademarks are used solely in a manner that is not intended to, and is not reasonably likely to, harm or breach of, disparage the Acquired Companies or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all their reputation.
(d) All non-public or other confidential information provided by or on behalf of Allergan the Company or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to 7.14 will be kept confidential in accordance with the Non-Disclosure Agreement, except that Parent and Purchaser will be permitted to disclose such information to any Debt Financing Source or prospective Debt Financing Source and other financial institutions that are or may become parties to the Debt Financing (and, in each case, to their respective Representatives) so long as such Persons: (i) agree to be bound by the Confidentiality Agreement; providedAgreement as if parties thereto, that Allergan acknowledges or (ii) are otherwise subject to other customary confidentiality arrangements, including “click through” confidentiality agreements and agrees confidentiality provisions contained in customary bank books and offering memoranda.
(e) For the avoidance of doubt, the parties hereto acknowledge and agree that the confidentiality undertakings that will be obtained provisions contained in this Section 7.14 represent the sole obligation of the Acquired Companies and their respective Affiliates with respect to cooperation in connection with syndication the Debt Financing.
(f) None of the Financing will be Acquired Companies, their respective Affiliates nor any of their respective Representatives shall have no liability whatsoever to Parent in respect of any financial information or data or other information (including any financial statements or other information) provided pursuant to this Section 7.14.
(g) Notwithstanding this Section 7.14 or anything else in this Agreement, Parent and Purchaser affirm that it is not a form customary condition to the Closing or to any of its other obligations under this Agreement that Parent, Purchaser or any of their respective Affiliates obtain financing for use in the syndication of acquisition-or related debt during a takeover offer period in compliance with the requirements to any of the Panel and transactions contemplated by this Agreement (including all or any portion of the Takeover RulesDebt Financing).
Appears in 2 contracts
Samples: Merger Agreement (Biodelivery Sciences International Inc), Merger Agreement (Collegium Pharmaceutical, Inc)
Financing Cooperation. (a) Until Prior to the earlier of Closing, the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan Company shall use its commercially reasonable best effortsefforts to cooperate, and shall cause each of its the Company Subsidiaries to use its commercially reasonable best effortsefforts to cooperate, and shall use its commercially reasonable best efforts to cause its and their respective officersRepresentatives, employees to provide, on a timely basis, all reasonable cooperation requested by Parent in connection with the documentation and advisors arrangement of any debt financing, including repurchase agreements (the “Debt Financing”), including (i) providing customary financial and other Representativespertinent information regarding the Company and the Company Subsidiaries, including legal the financial information required to be delivered in connection with the Debt Financing and accounting advisors, to use their reasonable best efforts, to provide to AbbVie and its Subsidiaries such assistance other information as may be reasonably requested by AbbVie in writing that is customary Parent in connection with the arranging, obtaining and syndication of the Debt Financing, (ii) assisting in the preparation of customary documents and materials, including using reasonable best efforts confidential information memoranda, lender and investor presentations and similar documents and materials in connection with respect to:
the Debt Financing, (iiii) participating in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable noticepresentations, (Biv) assisting with AbbVie’s providing reasonable and customary assistance to Parent and its Financing Sources in (A) the preparation of all credit agreements (including review of schedules for completeness), currency or interest hedging agreements or other agreements, and reasonably requested customary materials for registration statementscertificates, offering opinions or documents, private placement memorandaincluding customary certificates with respect to solvency matters, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection with the Debt Financing and (collectivelyB) the negotiation, “Marketing Material”) preparation and due diligence sessions related thereto, (C) delivering and consenting delivery of amendments to or the inclusion or incorporation in termination of any SEC filing related to the Financing of the historical audited consolidated financial statements Company’s or the Company Subsidiaries’ existing credit agreements, currency or interest hedging agreements, or other agreements, including repurchase agreements and unaudited consolidated interim financial statements related documentation in respect of Allergan included the Company’s or incorporated the Company Subsidiaries’ borrowings collateralized by reference into residential mortgage backed securities, securitized mortgage loans, other mortgage and mortgage related assets or other investment securities (including by negotiating amendments, waivers or supplements reasonably satisfactory to Parent with respect to any and all obligations of the Allergan SEC Documents (Company and the “Historical Financial Statements”) Company Subsidiaries under such repurchase agreements and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings related documentation which are intended by Parent to be terminated in connection with the Marketing Material (consummation of the Transactions), in each case, as applicable, subject on terms reasonably satisfactory to customary confidentiality provisions Parent and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is that are reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used Parent in connection with the Debt Financing;
, (v) permitting any cash and marketable securities of the Company and the Company Subsidiaries to be made available to Parent and Merger Sub following the First Merger Effective Time, (vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance cooperating reasonably with the accounting due diligence activities of the Financing Sources;
’ due diligence, to the extent customary and reasonable and (vii) causing the Financing to benefit from the existing lender relationships of Allergan furnishing Parent and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance promptly with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing required by AbbVie at least ten (10) Business Days in advance of any Governmental Entity with respect to the Completion Date in connection with the Financing that relates to financing under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Notwithstanding anything to the contrary in this Section 7.9(a) or Section 7.9(b) below, Act; provided that (A) none no obligation of Allergan nor the Company or any of its the Company Subsidiaries under any such agreements, amendments. authorizations, resolutions, consents shall be required to take or permit effective until the taking actual occurrence of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability the First Merger Effective Time (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change amendments to or modification the termination of any of the Company’s or the Company Subsidiaries’ existing agreementrepurchase agreements and related documentation in respect of the Company’s or the Company Subsidiaries’ borrowings collateralized by residential mortgage backed securities, certificatesecuritized mortgage loans, document other mortgage and mortgage related assets or instrument, in each case that would other investment securities which shall be effective prior to the Completion Date or would be effective if the Completion does not occur (except (xClosing) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, Company or directors and officers any of the Company Subsidiaries of Allergan or their respective Representatives shall be required to adopt resolutions pay any commitment or consents approving other similar fee or incur any other cost or expense that is not promptly reimbursed by Parent in connection with the agreements, documents or instruments pursuant Debt Financing prior to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), First Merger Effective Time and (C) neither Allergan nor any no member of its Subsidiaries the Company Board shall be required to take or permit any action with respect to the taking Debt Financing and neither the Company nor any of the Company Subsidiaries shall be obligated to take any action that would (i) interfere unreasonably with requires action or approval by the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement Company Board prior to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable LawFirst Merger Effective Time. AbbVie shall cause all All non-public or other confidential information provided by or on behalf of Allergan the Company or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to 6.16 shall be kept confidential in accordance with the Confidentiality Agreement; provided, except that Allergan acknowledges and agrees that the Parent shall be permitted to disclose such information to potential Financing Sources subject to customary confidentiality undertakings that will be obtained by such potential Financing Sources.
(b) Parent shall (A) promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs (including reasonable and documented attorneys’ fees) incurred by the Company or any of the Company Subsidiaries in connection with syndication the cooperation of the Company and the Company Subsidiaries contemplated by this Section 6.16 and Section 6.17 and (B) indemnify and hold harmless the Company, the Company Subsidiaries and their respective Representatives (collectively, the “Cooperation Indemnitees”) from and against any and all losses, damages, claims, costs or expenses suffered or incurred by any of them in connection with third party claims arising out of the arrangement of the Debt Financing will be or any of the actions or steps referred to in a form customary for use Section 6.17, and any information used in connection therewith, except with respect to any information provided in writing by the Company or any of the Company Subsidiaries or contained in the syndication of acquisition-related debt during Company SEC Documents or to the extent suffered or incurred as a takeover offer period in compliance with the requirements result of the Panel and gross negligence, willful misconduct or bad faith of the Takeover RulesCooperation Indemnitees.
Appears in 2 contracts
Samples: Merger Agreement (Apollo Residential Mortgage, Inc.), Merger Agreement (Apollo Commercial Real Estate Finance, Inc.)
Financing Cooperation. (a) Until the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan shall use its reasonable best efforts, and shall cause each of its Subsidiaries The Company agrees to use its reasonable best efforts, and shall use its reasonable best efforts to provide such assistance (and to cause its Subsidiaries and its and their respective officerspersonnel, employees representatives and advisors and other Representatives, including legal and accounting advisors, to use their reasonable best efforts, to provide such assistance) with the Debt Financing and marketing efforts to AbbVie current and its Subsidiaries such assistance prospective equity investors as may be is reasonably requested by AbbVie in writing Industrea that is customary and in connection with the arranging, obtaining arrangement and syndication consummation of the FinancingDebt Financing and the reduction or minimization of redemptions of Industrea Common Stock, including using reasonable best efforts with respect to:
as applicable. Such assistance shall include, without limitation, the following: (i) participating in and assisting with the due diligenceas promptly as reasonably practicable, syndication or other marketing of the Financingfurnishing Industrea, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie its Affiliates and its Financing Sources with historical financial and other customary pertinent information (collectively, regarding the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan Company and its Subsidiaries as may be reasonably requested by Industrea and specifically identified in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
Debt Commitment Letters, (ivii) causing Allergan’s independent auditors to provide customary cooperation reasonably assisting with the Financing;
(v) obtaining the consents preparation of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan lender and to references to such independent auditors as experts in any Marketing Material investor presentations, rating agency presentations, and registration statements similar documents and related government filings filed or used materials, in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters Debt Financing and assistance otherwise reasonably cooperating with the accounting marketing efforts of Industrea and Financing Sources for any portion of the Debt Financing, as applicable, including providing the business description to be contained therein and providing and executing customary authorization letters with respect thereto (it being understood and agreed that such documents shall contain customary language exculpating the Company and the Industrea Parties with respect to any liability related to the use of the contents thereof or any related marketing material by the recipients thereof), (iii) participating in a reasonable number of meetings, drafting sessions, due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan meetings and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date presentations with prospective lenders and/or equity investors, and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtednesssessions with ratings agencies, in each case upon reasonable notice and at mutually agreeable dates and times (including a reasonable number of customary one-on-one meetings), (iv) delivering to Industrea the payoff letters contemplated by Section 3.2(d)(iii) and the Lien releases contemplated by Section 3.2(d)(xiii), (v) preparing and furnishing to Industrea and the lenders as promptly as practicable all Required Financial Information, (vi) delivering to Industrea, within the time periods specified in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of Debt Commitment Letters all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan relating to the Company and its Subsidiaries as is reasonably requested in writing Affiliates required by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, to the extent such documentation and other information is requested by the lenders within the time periods specified in the Debt Commitment Letters, (vii) cooperating with the Financing Sources’ reasonable due diligence investigation and evaluation of the assets and properties of the Company and its Subsidiaries for the purpose of establishing collateral arrangements and otherwise reasonably facilitating the pledging of collateral (it being understood that no such pledging of collateral will be effective until at or after the Closing) (including obtaining for delivery at or immediately following the Closing the certificates representing equity interests constituting collateral) and (viii) executing and delivering as of (but not before) the Closing definitive financing documents (which will not be effective before the Closing), including credit agreements, intercreditor agreements, guarantee agreements, pledge and security documents (including intellectual property filings with respect to intellectual property constituting collateral) or documents (including a solvency certificate executed by the chief financial officer of the Company in the form attached to the Debt Commitment Letters and any customary backup officer’s certificate required for a legal opinion), to the extent reasonably requested by the Industrea Parties and otherwise using commercially reasonable efforts to facilitate the granting or perfection of collateral to secure any portion of the financings contemplated by the Debt Commitment Letters (or any permitted replacement thereof), including obtaining for delivery at or immediately following the Closing any certificates representing equity interests constituting collateral. Such assistance shall not require the Company or any of its Affiliates to agree to any contractual obligation relating to the Debt Financing that is not conditioned upon the Closing and that does not terminate without limitationliability to the Company or any of its Affiliates upon the termination of this Agreement. The Company will, upon reasonable written request of Industrea, use its reasonable best efforts to update any Required Financial Information (to the extent it is available) to be included in any offering document to be used in connection with the Debt Financing to assist Industrea in ensuring that such Required Financial Information, when taken as a whole, does not contain as of the time provided, giving effect to any supplements, any untrue statement of material fact or omit to state any material fact necessary in order to make the statements contained therein not materially misleading.
(b) The Company shall take all commercially reasonable actions necessary to issue, upon a timely request by Industrea, in accordance with the terms and conditions of the Existing Notes and the Existing Notes Indentures, a notice of redemption to redeem the aggregate principal amount of each series of Existing Notes outstanding as of the Closing Date pursuant to Section 3.07 of each Existing Notes Indenture (the “Existing Notes Redemptions”), and the Company shall take all commercially reasonable actions necessary to cause the Existing Notes Redemptions to occur substantially simultaneously with the Closing.
(c) In each case of this Section 6.4, the USA PATRIOT ACTCompany’s cooperation shall be at Industrea’s written request with reasonable prior notice and at Industrea’s sole cost and expense. Notwithstanding anything The Company shall not be required to deliver or cause the delivery of any legal opinions or accountants’ comfort letters or reliance letters in connection with the Debt Financing. The Company will consent to the contrary use of all of its and its Subsidiaries’ logos in this connection with the Debt Financing; provided, that such logos are used solely in a manner that is not reasonably likely to harm or disparage the Company or its Subsidiaries or the reputation or goodwill of the Company or any of its Subsidiaries. Without limiting the Company’s representations and warranties set forth in Section 7.9(a) or Section 7.9(b) below4.8, (A) none of Allergan the Company nor any of its Subsidiaries nor any of their respective Affiliates and their respective representatives shall be required have any liability to take any Industrea Parties or permit the taking their respective Affiliates in respect of any action financial statements, other financial documents or data or other information provided pursuant to this Section 7.9(a6.4 actual (not constructive) fraud by the Company or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed its Subsidiary. All information provided by AbbVie upon request by Allergan pursuant to Section 7.9(c))the Company, (ii) execute or deliver any definitive financing documents or any other agreementits Subsidiaries, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan Holder Representative or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan their respective Affiliates or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan or any of its Subsidiaries or Representatives representatives pursuant to this Section 7.9 to 6.4 shall be kept confidential in accordance with the Confidentiality Agreement; providedAgreement except that Industrea shall be permitted to disclose on a confidential basis such information to the Financing Sources, that Allergan acknowledges rating agencies and agrees that the confidentiality undertakings that will be obtained prospective lenders in connection with syndication the Debt Financing. Each of the Financing will Industrea Parties agrees and acknowledges that the Company shall not be considered to have breached this Section 6.4 unless the Company shall have knowingly, intentionally and materially breached this Section 6.4 and which breach shall have caused the Closing not to occur. Industrea shall indemnify and hold harmless the Company and its Subsidiaries and their respective directors, officers, employees and agents from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance connection with the requirements Debt Financing and the Equity Financing or any assistance or activities provided in connection therewith, except to the extent suffered or incurred as a result of the Panel knowing, intentional and material breach of this Section 6.4 or the Takeover Rulesactual (not constructive) fraud of, any of them.
Appears in 2 contracts
Samples: Merger Agreement (Industrea Acquisition Corp.), Merger Agreement
Financing Cooperation. (a) Until During the earlier of Pre-Closing Period, the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan shall use its reasonable best effortsCompany shall, and shall cause each of its Subsidiaries to use its reasonable best effortsto, and shall use its reasonable best efforts to cause its and their respective officersRepresentatives to, employees cooperate with Parent, Merger Sub and advisors and other Representatives, including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie and its Subsidiaries such assistance as may be reasonably requested by AbbVie in writing that is customary respective Representatives in connection with the arrangingDebt Financing (for the purposes of this Section 7.09, obtaining the term “Financing” and syndication “Debt Financing” shall be deemed to include customary high-yield non-convertible debt securities offering to be issued or incurred in lieu of or in addition to the Debt Financing), including by using its and their reasonable best efforts with respect to:
(i) participating in provide the Required Information and assisting with the due diligence, syndication or such other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary pertinent information (collectively, regarding the “Financing Information”) with respect to Allergan Company and its Subsidiaries as is reasonably requested and the transactions contemplated by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries this Agreement as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Debt Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used , including in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Notwithstanding anything to the contrary in this Section 7.9(a) or Section 7.9(b) below, (A) none the preparation of Allergan nor any of its Subsidiaries shall be required to take rating agency presentations, lender or permit investor presentations, information memoranda, offering memoranda, private placement memoranda (including under Rule 144A under the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)Securities Act), road show presentations and similar documents (ii) execute or deliver any definitive financing documents or any other agreementcollectively, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b“Marketing Materials”), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none the preparation by Parent, Merger Sub and their respective Representatives of pro forma financial statements satisfying the requirements of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), Debt Commitment Letter and (C) neither Allergan nor due diligence investigations by any of Debt Financing Source or its Subsidiaries Representatives; provided that, prior to the Closing Date, the Company shall be required ensure that the Required Information and other information provided pursuant to take or permit the taking of any action that would this clause (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause when taken as a whole, does not contain any director, officer or employee or shareholder untrue statement of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, fact regarding the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan Company or any of its Subsidiaries or omit to state any material fact regarding the Company or any of its Subsidiaries that is necessary to make such Required Information not materially misleading in light of the circumstances under which such statements have been made (giving effect to all supplements and updates provided thereto);
(ii) cause its Representatives pursuant to this Section 7.9 participate, at reasonable times and locations and upon reasonable notice, in a reasonable number of meetings, conference calls, presentations, road shows, due diligence sessions, sessions with rating agencies and other marketing efforts by Parent, Merger Sub, any Debt Financing Source and their respective Representatives with respect to be kept confidential in accordance the Debt Financing;
(iii) assist with the Confidentiality Agreement; providedpreparation of Marketing Materials and with the negotiation and preparation of credit agreements, that Allergan acknowledges guarantees, pledges, security documents, certificates and agrees that other definitive documentation relating to the confidentiality undertakings that will be obtained Debt Financing (including, in each case, any schedules thereto);
(iv) facilitate the pledging of collateral including by cooperating in connection with syndication the payoff of existing indebtedness and the release of related Liens and the termination of security interests (including by delivering prepayment or termination notices as required by the terms of any existing indebtedness and delivering payoff letters or UCC-3 or equivalent financing statements or termination notices);
(v) take all corporate actions (which actions shall not be effective prior to the Closing) required (i) to authorize the execution by the Company or any of its Subsidiaries of each definitive document relating to the Debt Financing to which it is specified to be a Party and (ii) to permit the consummation of the Debt Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover Rules.granting and perfection of security interests in collateral with respect thereto;
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Sonic Financial Corp), Merger Agreement (Speedway Motorsports Inc)
Financing Cooperation. (a) Until Subject to Section 7.13(b), prior to the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9Closing, Allergan shall use its reasonable best effortsDanube shall, and shall cause each of the Danube Subsidiaries and its Subsidiaries to and their respective Affiliates and Representatives to, use its reasonable best efforts, and shall use its their respective reasonable best efforts to cause its provide all reasonable and/or customary cooperation and their respective officers, employees and advisors and other Representatives, including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie and its Subsidiaries such assistance as may be reasonably requested by AbbVie in writing that is customary in connection with the arrangingarrangement, obtaining and syndication and/or consummation of the Debt Financing and the transactions related thereto (collectively, the “Available Financing”), including using reasonable best efforts with respect to:
to (i) participating in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect provide to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing Amazon at least three five (35) Business Days in advance of prior to the Completion Closing Date such documentation information regarding Danube and other information about Allergan and its the Danube Subsidiaries as is reasonably requested in writing required by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the regulatory authorities or any Debt Financing that relates to Sources under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACTAct that is requested by Amazon at least eight (8) Business Days prior to the Closing Date; (ii) participate in a customary and reasonable number of meetings (which may be virtual) between (A) Debt Financing Sources and (B) senior management and the Representatives of Danube and the Danube Subsidiaries (in each instance for this clause (B), with appropriate knowledge and expertise in the subject matter of such meeting), investor presentations, road shows, drafting sessions, due diligence sessions and sessions with Debt Financing Sources and rating agencies and other syndication activities, in each case that are reasonable and/or customary for financings of a type similar to the Available Financing; (iii) furnish to Amazon and the Debt Financing Sources in a timely manner financial and other information regarding Danube and the Danube Subsidiaries as may be reasonably requested by Amazon or any of the Debt Financing Sources in connection with the Debt Financing; (iv) provide customary assistance to Amazon and its Debt Financing Sources in the preparation of (A) any syndication documents and materials, including information memoranda (including an additional bank information memoranda that does not contain material non-public information), customary offering memoranda (including a preliminary and final offering memorandum that is suitable for use in a customary “high-yield road show” for an offering by Amazon), investor presentations and other marketing documents customarily used to arrange financing similar to the Available Financing (collectively, the “Marketing Documentation”) and (B) materials for rating agency presentations; (v) furnish Amazon and the Debt Financing Sources with customary authorization letters with respect to the presence or absence of material non-public information and accuracy of the information contained therein with respect to Danube and the Danube Subsidiaries to be included in the Marketing Documentation and containing a representation that the public-side version does not include material nonpublic information about Danube and the Danube Subsidiaries or their respective securities; (vi) provide customary assistance to Amazon in the negotiation, preparation, execution and delivery of any credit, loan or other agreements, indentures, note purchase agreements or similar agreements, pledge or security documents, interest rate or currency hedging documents or other similar instruments, certificates or documents, and the respective schedules and exhibits thereto, in connection with the Available Financing; (vii) assist Amazon in obtaining surveys, title insurance and other items customarily required in connection with real property mortgages, as reasonably requested by Amazon and to the extent required to be delivered in connection with the Available Financing; (viii) cooperate (and cause counsel to Danube and the Danube Subsidiaries to cooperate) with Amazon’s legal counsel in connection with any legal opinions that may be required to be delivered by Amazon’s legal counsel in connection with the Available Financing (for the avoidance of doubt, Danube’s legal counsel will not be required to deliver any legal opinion); (ix) cause its independent registered public accounting firm to provide customary assistance with the due diligence activities of Amazon and the Debt Financing Sources and the preparation of Marketing Documents; (x) facilitate the obtaining of (A) audit reports, consents and customary comfort letters (including customary “negative assurances” comfort) of accountants and auditors with respect to financial statements and other financial information for Danube and the Danube Subsidiaries included in any Marketing Documentation and (B) the Payoff Letters and the Payoff Letter Ancillaries; (xi) otherwise facilitate the granting of a security interest (and perfection thereof) in collateral (including assistance with the negotiation and preparation of, disclosure schedules and perfection certificates) in connection with the Debt Financing, to the extent not prohibited or restricted under applicable Law or any Contract of Danube or any of its Affiliates, provided that no pledge shall be effective until the Closing; (xii) provide unaudited quarterly and audited annual financial statements for each fiscal quarter or fiscal year ended after the date of this Agreement and prior to the Closing Date in the form provided internally to senior management of Danube as promptly as practicable following the end of such fiscal quarter or fiscal year (but in any event within 45 days following the end of such fiscal quarter (or, with respect to the fiscal quarter ended September 30, 2023, 60 days) or 90 days following the end of such fiscal year), provided that no quarterly financial statements shall be required to be delivered for the fiscal quarter ended June 30, 2023; (xiii) provide customary requested historical financial data of Danube and the Danube Subsidiaries as may be reasonably requested by Amazon and the Debt Financing Sources for Amazon to prepare a customary preliminary offering memorandum suitable for use in a customary “high yield road show” for a private placement of non-convertible debt securities of Amazon pursuant to Rule 144A (without registration rights) promulgated under the Securities Act and other historical financial information of Danube and the Danube Subsidiaries for the preparation by Amazon of customary pro forma financial information and pro forma financial statements to the extent required by Regulation S-X under the Securities Act other accounting rules and regulations of the SEC, and/or the Debt Financing Sources pursuant to any commitment letters; and (xiv) cause the taking of corporate and organizational actions reasonably necessary to permit the closing of Amazon’s Debt Financing; it being understood and agreed that no such corporate or other action will take effect prior to the Closing (other than customary authorization letters and customary representation letters). For the avoidance of doubt, the financial statements referred to in the foregoing clause (xii) will be prepared in accordance with IFRS and the unaudited quarterly financial statements will be reviewed by the independent accountants of Danube as provided in the procedures specified by PCAOB AS 4015; provided that no opinion shall be required with respect to such review of such unaudited financial statements.
(b) Notwithstanding anything to the contrary contained in this Section 7.9(a7.13(a) or Section 7.9(b) below7.13(g), (Ai) none of Allergan neither Sellers, Danube nor any of its the Danube Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (iA) pay any commitment or other similar fee or incur any other liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c))in connection with the Available Financing, (ii) execute or deliver including under any definitive financing documents agreement or any other agreement, certificate, document or instrument, or agree related to any change to or modification of any existing agreement, certificate, document or instrumentthe Available Financing, in each case that would be effective case, prior to the Completion Date Closing, (B) commit to taking any corporate or organizational action (including the entering into any agreement but excluding the execution and delivery of customary authorization letters and customary representation letters) that is not contingent upon the Closing, (C) take any action that would be effective if the Completion does not occur conflict with, violate or result in a breach of or default under any Danube Governing Documents, any Contract or any Law, (except (xD) take any action prior to the extent required by Section 7.9(b)Closing that could subject any director, applicable Allergan Supplemental Indenturesmanager, officer or employee of Danube or its Affiliates to any actual or potential personal liability, (yE) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan Danube determines in good faith could jeopardize any attorney client privilege of Danube or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries Affiliates (provided that Allergan shall, and Danube shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such develop an arrangement to communicate or provide the applicable information to be disclosed (or a portion thereof) in a manner that would not result in conflict with the loss of any such privilegeforegoing clause), (ivF) deliver cause any director or cause manager of Danube or any of its Representatives Affiliates (other than those directors or managers that will continue in such capacity on and after the Closing Date (and acting in such post-Closing capacity)) to deliver pass resolutions or consents to approve or authorize the execution of Amazon’s Debt Financing, (G) reimburse any legal opinion expenses or negative assurance letter provide any indemnities prior to the Closing, (exceptH) make any representation, warranty or certification that, in the good faith determination of Danube, is not true or (I) provide any cooperation or information that does not pertain to Danube or the Danube Subsidiaries, (ii) the effectiveness of any documentation (other than customary authorization and representation letters) executed by Danube or the Danube Subsidiaries with respect thereto shall be subject to the consummation of Amazon’s Debt Financing and (iii) Danube and the Danube Subsidiaries shall not be required to take any action hereunder that unreasonably interferes with the ongoing operation of their respective businesses. Any information provided to Amazon or any other Person pursuant to Section 7.13(a) shall be subject to the Confidentiality Agreement.
(c) Between the date hereof and the Closing, if, to the knowledge of Danube, any information specifically provided by any of Danube or any Danube Subsidiary to Amazon in connection with the entry into an Allergan Supplemental Indenture required Debt Financing contains any misstatement of any material fact, Danube shall use reasonable best efforts to provide to Amazon as promptly as practicable such information as may be necessary to correct such information.
(d) Other than as set forth below, Amazon acknowledges and agrees that neither Xxxxxxx, Danube, the Danube Subsidiaries nor any of their respective Affiliates or Representatives shall have any responsibility for, or incur any liability to any person under or in connection with, the arrangement of Amazon’s Debt Financing in connection with the Transactions. Amazon shall indemnify and hold harmless Danube and the Danube Subsidiaries 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 Amazon’s Debt Financing by Amazon and any information utilized in connection therewith, except in the event such liabilities arise out of or result from (i) information provided by Sellers, Danube or the Danube Subsidiaries expressly for use in connection therewith or (ii) the bad faith, gross negligence, fraud or willful misconduct or intentional misrepresentation, by Danube or any of the Danube Subsidiaries, any of their respective Affiliates or any of the Representatives to any of the foregoing.
(e) Danube and the Danube Subsidiaries hereby consent to the use of their logos in connection with the Available Financing; provided, however, that such logos are used solely in a manner that does not intend to violate any existing contractual obligation of Danube or any Danube Subsidiary and does not intend to harm or disparage Danube or any Danube Subsidiary.
(f) Notwithstanding anything to the contrary, the condition set forth in Section 7.9(b8.3(b), Allergan shallas it applies to the obligations of Danube and the Danube Subsidiaries under Section 7.13(a), shall be deemed satisfied unless Amazon’s Debt Financing has not been obtained primarily as a result of a Willful Breach by Danube or any Danube Subsidiary of their obligations under Section 7.13(a).
(g) Prior to the Closing, Amazon shall consult with Danube in good faith with respect to any plans to (i) commence a tender offer, exchange offer and/or consent solicitation or change of control offer for any Danube Notes prior to the Closing, the settlement of which, in each case, will be contingent on the Closing or (ii) redeem or satisfy and discharge any Danube Notes, as of the Closing Date. To the extent requested by Amazon, Danube shall cause its Subsidiaries toprovide reasonable and customary assistance, at Amazon’s sole cost and expense, in connection therewith, including (i) taking any actions reasonably necessary or appropriate to be taken to issue conditional redemption notices and/or conditional notices of offers to purchase the Danube Notes, the redemption or repurchase of which closes at or following Closing Date, or other documents necessary to commence a tender offer, exchange offer and/or consent solicitation or change of control offer, as the case may be, for the Danube Notes and (ii) use their respective reasonable best efforts to cause counsel the applicable trustee to Allergan proceed with a tender offer, exchange offer and/or consent solicitation or its Subsidiarieschange of control offer, as the case may be, for the Danube Notes, and take any such action as is reasonably necessary to cause the applicable trustee and/or other applicable agent to send the notices of offers to purchase and/or redemption, consent solicitation statement and/or other documents necessary to commence such a transaction, to the holders of the Danube Notes on or prior to the Closing Date, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained in connection with syndication of the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover Rules.
Appears in 2 contracts
Samples: Business Combination Agreement (Bungeltd), Business Combination Agreement (Bungeltd)
Financing Cooperation. (a) Until the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan shall use its reasonable best effortsThe Company shall, and shall cause each of its Subsidiaries to use its reasonable best effortsto, and shall use its reasonable best efforts to cause its and their respective officersRepresentatives to, employees and advisors and other Representatives, including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie Parent all cooperation that is necessary, customary or advisable and its Subsidiaries such assistance as may be reasonably requested by AbbVie Parent to assist Parent in writing that is customary arranging, obtaining and syndicating any debt or equity financing, including the Debt Financing, in connection with the arrangingtransactions contemplated by this Agreement (the “Financing”). Such cooperation shall include, obtaining and syndication without limitation:
(i) cooperating with customary marketing efforts of Parent for all or any portion of the Financing, including using reasonable best efforts with respect to:
(i) participating in and assisting with causing the due diligencemanagement team, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority and expertise, including senior executive officers, external auditors and advisors, in each case of the Company and its Subsidiaries, to assist in preparation for and to participate in a reasonable number of meetings, presentations, road shows, drafting due diligence sessions, due diligence drafting sessions and sessions with prospective proposed lenders, investors and underwriters, initial purchasers, placement agents or rating agencies, at times ;
(ii) providing reasonable and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting timely assistance with AbbVie’s the preparation of customary materials for registration statementsrating agency presentations, road show materials, bank information memoranda, prospectuses and bank syndication materials, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations memoranda and similar documents customarily required in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable typeFinancing, including all Historical Financial Statements the marketing and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable typesyndication thereof;
(iii) providing to AbbVie’s legal counsel furnishing Parent and its independent auditors such customary documents and other customary Financing Source Parties, promptly following Parent’s reasonable request, with all information relating to Allergan the Company and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating required to consummate the Financing, and using reasonable best efforts to assist Parent with Parent’s preparation of pro forma financial information and projections;
(iv) causing Allergan’s independent auditors using reasonable best efforts to provide customary cooperation assist Parent in obtaining corporate and facilities ratings in connection with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan furnishing Parent and to references to such independent auditors as experts its Financing Source Parties promptly, and in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating event at least five Business Days prior to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Closing Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie at least within ten (10) Business Days in advance of prior to the Completion Date in connection Closing Date), with all documentation and other information required by any Governmental Authority with respect to the Financing that relates to under applicable “know your customer” and anti-money laundering rules and regulations, including without limitationthe PATRIOT Act;
(vi) assisting in preparing schedules in connection with any Financing as may be reasonably requested by Parent;
(vii) providing customary authorization letters authorizing the distribution of information to prospective lenders and containing a customary representation to the Financing Source Parties for the Financing that such information does not contain a material misstatement or omission and containing a representation to the Financing Source Parties that the public side versions of such documents, if any, do not include material non-public information about the USA PATRIOT ACT. Company and its Subsidiaries or its or their securities;
(viii) using reasonable best efforts to cause the Company’s independent accountants to provide assistance and cooperation to Parent, including using reasonable best efforts to cause their participation in drafting sessions and accounting due diligence sessions, using reasonable best efforts to cause them to agree that Parent may use their audit reports on the consolidated financial statements of the Company in any materials relating to the Financing or in connection with any filings made with the SEC or pursuant to applicable law, and using reasonable best efforts to cause them to provide any comfort letters necessary and reasonably requested by Parent in connection with any debt or equity capital markets transaction comprising a part of the Financing, in each case, on customary terms and consistent with their customary practice; and
(ix) as promptly as practicable on an ongoing basis, and in any event by the First Effective Time, (I) furnishing Parent and its Financing Source Parties with (A) U.S. GAAP audited consolidated balance sheets and related statements of earnings, comprehensive income, shareholders’ equity and cash flows of the Company, for the fiscal years ended December 31, 2015, December 31, 2014 and December 31, 2013 and for any subsequent fiscal year ended at least 60 days prior to the First Effective Time (and the audit reports for such financial statements shall not be subject to any “going concern” qualifications) and (B) U.S. GAAP unaudited consolidated balance sheets and related statements of earnings, comprehensive income and cash flows of the Company (in each case, except as permitted by the rules and regulations promulgated by the SEC and subject to normal year-end adjustments and absence of footnotes) for each subsequent fiscal quarter ended at least 40 days before the First Effective Time (it being understood and agreed that the timely filing of such financial statements on Form 10-K or Form 10-Q, as applicable, shall satisfy the requirements under the foregoing clause (I)(A) or (I)(B), as applicable, to the extent that the information included in such Form 10-K and Form 10-Q meets and continues to meet the requirements of the foregoing clause (I)(A) or (I)(B), as applicable); and (C) all other financial statements, financial data, audit reports and other information regarding the Company and its Subsidiaries as is necessary to prepare pro forma financial statements of Parent that shall meet the requirements of Regulation S-X and Regulation S-K under the 1933 Act to the extent applicable in a registration statement of the Parent’s securities under the 1933 Act on Form S-1 for the most recent period for which financial statements are required to be delivered pursuant to clause (I)(A) and (I)(B), and (II) using reasonable best efforts to furnish Parent and its Financing Source Parties (A) all other financial statements, financial data, audit reports and other information (other than information described in clause (I)) regarding the Company and its Subsidiaries of the type required by Regulation S-X and Regulation S-K under the 1933 Act for a registered public offering of debt or equity securities of Parent or as otherwise necessary to permit the Company’s independent accountants to issue “comfort letters” to Parent’s Financing Source Parties (which such accountants have confirmed they are prepared to issue), including as to customary negative assurances and change period in order to consummate any debt or equity capital markets transaction comprising a part of the Financing and (B) such other financial and other information relating to the Company and its Subsidiaries 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 confidential information memoranda or otherwise to be used in connection with the marketing or consummation of the Financing.
(b) Notwithstanding anything to the contrary contained in this Section 7.9(a8.05: (i) or Section 7.9(b) below, (A) none of Allergan nor any of the Company and its Subsidiaries shall not be required to take or permit the taking of in connection with any action pursuant to this Section 7.9(a) or Section 7.9(b) below Financing to (iA) pay any commitment or other fee fees or incur reimburse any liability expenses prior to the Closing for which it has not received prior reimbursement or is not otherwise indemnified by or on behalf of Parent, (B) take any action that would unreasonably interfere with the ongoing business or operations of the Company and its Subsidiaries, (C) require the Company, any of its Subsidiaries or any of their respective Representatives to take any action that conflicts with, or results in any violation or breach of, or default (with or without notice or lapse of time, or both) under, the organizational documents of the Company or its Subsidiaries, any applicable Laws, or any Company Material Contract, (D) provide any information subject to attorney-client privilege, attorney work product protection or other legal privilege, or (E) enter into or approve any agreement or other documentation (other than third-party costs delivery of customary authorization and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(crepresentation letters in connection with the Financing)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document agreement or instrument, in each case other documentation that would be effective prior to the Completion Date Closing, and (ii) no action, liability or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light obligation of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above)Company, (iii) provide access to or disclose information that Allergan its Subsidiaries, or any of its and their Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to the Financing (other than customary authorization and representation letters) shall be effective until (or not be contingent upon) the Closing.
(c) Parent shall (i) promptly upon request by the Company, reimburse the Company for all of its reasonable and documented out-of-pocket fees and expenses (including reasonable and documented out-of-pocket attorneys’ fees, but excluding the costs of the Company’s preparation of its annual and quarterly financial statements) incurred by the Company, its Subsidiaries reasonably determines would jeopardize or its or their Representatives in connection with any attorney-client privilege cooperation contemplated by this Section 8.05 and (ii) indemnify and hold harmless the Company, its Subsidiaries and its and their Representatives against any claim, loss, damage, injury, liability, judgment, award, penalty, fine, cost, settlement payment or expense incurred in connection with, or as a result of, the arrangement of Allergan the Financing, any Debt Transaction or their cooperation therewith and any information (other than information provided in writing by the Company, its Subsidiaries or any of its Subsidiaries (provided that Allergan shallor their Representatives) used in connection therewith, and shall cause except to the extent arising from any fraud, intentional misrepresentation, gross negligence, bad faith or willful misconduct of the Company, its Subsidiaries toor any of its or their Representatives.
(d) The Company hereby consents to the use of the trademarks and logos of the Company and its Subsidiaries in connection with the Financing; provided, use their respective reasonable best efforts to cause any that such information to be disclosed trademarks and logos are used solely in a manner that would is not result in intended to or reasonably likely to harm or disparage the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan Company or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained in connection with syndication reputation or goodwill of the Financing will be in a form customary for use in the syndication Company or any of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover Rulesits Subsidiaries.
Appears in 2 contracts
Samples: Merger Agreement (Abbott Laboratories), Merger Agreement (St Jude Medical Inc)
Financing Cooperation. (a) Until Subject to Section 7.14(b), (c) and (d), prior to the earlier of Closing Date, the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan Company shall use its reasonable best efforts, and shall cause each of its Subsidiaries efforts to use its reasonable best effortsprovide, and shall use its reasonable best efforts to cause its Subsidiaries and their respective officers, employees and advisors and other Representatives, including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie its and its Subsidiaries Representatives to provide, at Parent’s sole cost and expense, to Parent such assistance cooperation as may reasonably be reasonably requested by AbbVie in writing that is customary Parent in connection with the arrangingDebt Financing including, obtaining and syndication of the Financingwithout limitation, including using reasonable best efforts with respect to:
(i) participating in and assisting with the due diligenceparticipation, syndication or other marketing of the Financingupon reasonable advance notice, including using reasonable best efforts with respect to (A) the participation by members of senior management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road showssessions with rating agencies, drafting sessions, sessions and due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at in locations reasonably acceptable to Allergan and upon reasonable noticethe Company, (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie Parent and its Representatives with all Financing Sources with historical Information and, to the extent reasonably available to the Company, other financial and other material information not otherwise available to Parent relating to the Company and its Subsidiaries, including any such customary information (collectivelycontemplated by the Debt Commitment Letter to be delivered after the date of this Agreement, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie necessary or its Financing Sources customary and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery the Debt Financing, in each case, as and when it becomes available (in the case of any customary negative assurance opinions the Financing Information, at the times required by the Debt Commitment Letter), (iii) reasonably assisting Parent and customary comfort letters its Financing Sources (to the extent relating to the Financing;
(ivCompany and its Subsidiaries) causing Allergan’s independent auditors in the preparation of customary rating agency presentations, syndication documents and materials, information memoranda, lender presentations and similar marketing documents to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used be used, in connection with the Debt Financing;
, including providing customary authorization letters related thereto, (iv) assisting in the preparation of definitive financing documents, as may be reasonably requested by Parent, (v) facilitating the pledging of collateral for the Debt Financing, (vi) obtaining Allergan’s independent auditors’ customary comfort letters using commercially reasonable efforts to obtain such material consents, approvals, authorizations and assistance instruments which may be reasonably requested by Parent in connection with the accounting Debt Financing and collateral arrangements, including, without limitation, customary payoff letters, releases of liens, instruments of termination or discharge, legal opinions, surveys and title insurance, (vii) using commercially reasonable efforts to ensure that the syndication efforts for the Debt Financing benefit from the Company’s existing lending and banking relationships, (viii) using commercially reasonable efforts in assisting Parent in its efforts to obtain corporate credit or family ratings of Parent, (ix) to the extent reasonably requested by Parent, subject to customary confidentiality agreements, cooperate with reasonable due diligence activities of requests from the Financing Sources;
(vii) causing , including as promptly as practicable after reasonable request thereof, furnishing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing Sources with reasonable documents or other information reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of Company and its Subsidiaries required by bank regulatory
A. Patriot Act of 2011, (x) obtaining a customary repayment notice, payoff letter and other customary payoff and release documentation and authorizations on or prior to the Closing Date of all obligations under the Company Credit Agreement; and (xi) using commercially reasonable efforts to cooperate with Parent to satisfy the conditions precedent to the Debt Financing to the extent reasonably requested by Parent and within the control of the Company and its Subsidiaries, and using commercially reasonable efforts to take all corporate actions, subject to the occurrence of the Closing, reasonably requested by Parent to permit the consummation of the Debt Financing; provided, however, that, no obligation of the Company under any agreement, certificate, document or instrument shall be repaid or refinanced on effective until the Completion Closing. Without limiting the generality of the foregoing, the Company shall ensure that all financial and other projections concerning the Company and its Subsidiaries that are made available to Parent by the Company after the date of this Agreement and prior to the Closing are prepared in good faith and, prior to the earlier of the Closing Date and the release termination of related liens and/or guarantees this Agreement, the Company will use its reasonable best efforts to provide to Parent and its Financing Sources such information as may be necessary so that the Financing Information provided by the Company (if anyother than projections, budgets, estimates and other forward-looking information or information of a general economic or general industry nature) effected therebyis, including customary payoff letters when taken as a whole, complete and (correct in all material respects and does not and will not, taken as a whole, contain any untrue statement of a material fact or omit to state a material fact necessary to make the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtednessstatements contained therein, in each case in accordance with the terms light of the definitive documents governing circumstances under which such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring statements are made, not materially misleading. The Company consents to the reasonable use of all of Allergan’s its and its Subsidiaries’ logos in connection with the Financing (Debt Financing; provided that such logos are used solely in a manner that is not intended to to, and is not reasonably likely to harm or disparage Allergan the Company or any of its Subsidiaries or the reputation or goodwill of Allergan the Company, its Subsidiaries and its or their respective marks, products, services, offerings or intellectual property rights. Nothing contained in this Section 7.14 or otherwise shall require the Company or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Notwithstanding anything to the contrary in this Section 7.9(a) or Section 7.9(b) below, (A) none of Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicableClosing, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior Debt Financing. Notwithstanding anything to the Completioncontrary in this Agreement, the parties agree that the Tender Offer Condition set forth in clause (v)(d) of Annex A, as applied to the Company’s obligations under this Section 7.14(a), shall be deemed satisfied unless the Debt Financing has not been obtained as a direct and primary result of the Company’s Knowing and Intentional Breach of its obligations under Section 7.14(a) as determined in a final, non-appealable judgment of a court of competent jurisdiction.
(b) Parent shall promptly, upon request by the Company, reimburse the Company and its Subsidiaries, as applicable, for all reasonable out-of-pocket costs and expenses (including attorneys’ fees) incurred by the Company or its Subsidiaries and their respective Representatives (collectively, the “Financing Indemnitees”) as applicable, in connection with the Debt Financing or the cooperation of the Financing Indemnitees, as applicable, contemplated by this Section 7.14. Parent shall indemnify and hold harmless the Financing Indemnitees from and against any and all losses, damages, claims, costs, expenses (including attorney’s fees), awards, judgments and penalties suffered or incurred by any of them in connection with the Debt Financing and any information used in connection therewith or providing the assistance contemplated by this Section 7.14, in each case except to the extent any of the foregoing arise from the Financing Indemnitees’ bad faith, fraud, intentional misrepresentation or willful misconduct, as finally determined by a court of competent jurisdiction (the obligations of Parent in this sentence, the “Financing Cooperation Indemnity”). The Financing Cooperation Indemnity shall survive the consummation of the Merger and any termination of this Agreement.
(c) Notwithstanding anything in this Agreement to the contrary, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (Cx) neither Allergan the Company nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (iA) unreasonably interfere unreasonably with the business or operations of Allergan the Company or any of its Subsidiaries, (iiB) cause any representation or warranty or covenant in this Agreement to be breached by Allergan the Company or any of its Subsidiaries (unless waived by AbbVie)or cause the Company or any of its Subsidiaries to become unable to satisfy any Tender Offer Condition, (iiiC) require the Company or any of its Subsidiaries or any of their respective Affiliates to pay (or agree to pay) any fees, or reimburse any expenses prior to the Closing for which it is not promptly reimbursed, or otherwise incur any other obligations or give any indemnities prior to the Closing that are not contingent on the Closing (D) cause any director, officer or officer, employee or shareholder stockholder of Allergan the Company or any of its Subsidiaries to incur any personal liability liability, (E) conflict with the organizational documents of the Company or any of its Subsidiaries or any applicable material Laws, (ivF) result in a material violation the contravention or breach of, or a default under, any material Contract to which Allergan the Company or any of its Subsidiaries is a party, (G) provide access to or disclose information that would jeopardize any attorney-client privilege of the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan Company or any of its Subsidiaries or that would be prohibited by applicable Law or legal proceeding, or (H) prepare separate financial statements for any Subsidiary of the Company or change any fiscal period or prepare any financial statements or information that are not available to it and prepared in the ordinary course of its financial reporting practice; (y) none of the Company, any of its Subsidiaries or any of their respective directors or officers shall be obligated to adopt resolutions or execute consents to approve or authorize the execution of the Debt Financing; provided that this clause (y) shall not prohibit the adoption or execution of any resolutions or consents effective no earlier than the Closing Date (after giving effect to the Closing) by any persons that shall remain or will become officers or directors of the Company or any of its Subsidiaries as of the Effective Time; and (z) any documentation executed by the Company of any of its Subsidiaries shall not become effective until the Effective Time.
(d) Parent acknowledges and agrees that, other than reasonable out–of–pocket costs and expense subject to reimbursement pursuant to this Section 7.14, neither the Company nor any of its Subsidiaries and Representatives shall have any responsibility for, or incur any liability to, any Person under, any Debt Financing that Parent may raise in connection with the transactions contemplated by this Agreement or any cooperation provided pursuant to this Section 7.14. All non–public or otherwise confidential information regarding the Company or any of its Affiliates and Subsidiaries obtained by Parent or its Affiliates or Representatives pursuant to this Section 7.9 to 7.14 shall be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that the confidentiality Agreement or customary confidential undertakings that will be obtained in connection with syndication of the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover RulesDebt Financing.
Appears in 2 contracts
Samples: Merger Agreement (Cavium, Inc.), Merger Agreement (Qlogic Corp)
Financing Cooperation. (a) Until Subject to Section 6.03(a), prior to the earlier of Offer Closing, the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan shall use its reasonable best efforts, and shall cause each of its Subsidiaries to use its reasonable best efforts, and Company shall use its reasonable best efforts to cooperate, and to cause its Subsidiaries, and its and their respective officersRepresentatives, employees to cooperate, with Parent and advisors Merger Sub in connection with Parent and Merger Sub obtaining financing in connection with the transactions contemplated by this Agreement including, at Parent’s request (i) furnishing Parent and Merger Sub and their financing sources with financial and other Representativespertinent information (including bank and bond information memoranda, syndication materials, offering and other similar documents) customarily utilized in financing transactions of the kind contemplated hereby, (ii) in each case, upon reasonable notice, making management of the Company (including some members of the financial staff) available to participate in a reasonable number of meetings (including customary one-on-one meetings with the parties acting as lead arrangers or agents for, and prospective lenders and purchasers of, any such financing), presentations, road shows, due diligence sessions, drafting sessions and sessions with rating agencies in connection with such financing, (iii) assisting with the preparation of materials for rating agency presentations and bank information memoranda and similar documents customarily prepared in connection with the financing, (iv) using reasonable best efforts to facilitate accountant’s comfort letters and legal opinions reasonably requested by Parent, (v) reasonably facilitating the pledging of collateral, including legal taking all actions reasonably necessary to establish bank and accounting advisors, to use their reasonable best efforts, to provide to AbbVie other accounts and its Subsidiaries such assistance blocked account agreements in connection with the foregoing and executing and delivering customary pledge and security documents or other definitive financing documents and other certificates and documents as may be reasonably requested by AbbVie in writing Parent that is customary in connection are consistent with the arranging, obtaining terms of this Agreement or otherwise facilitating the pledging of collateral from and syndication of after the Financing, including using reasonable best efforts with respect to:
(i) participating in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries Closing as may be reasonably requested by Parent; provided, that any obligations contained in all such agreements and documents shall be effective no earlier than the Effective Time, (vi) promptly furnishing all documentation and other information about the Company and its Subsidiaries required by Governmental Entities with respect to the financing under applicable “know your customer” and anti-money laundering rules and regulations including without limitation the USA PATRIOT Act and (vii) taking all corporate actions, subject to the occurrence of the Closing, reasonably requested to permit the consummation of any such financing and to permit the proceeds thereof to be made available to the Company, including entering into one or more credit agreements, indentures or other instruments on terms reasonably satisfactory to Parent in connection with their delivery therewith as of any customary negative assurance opinions and customary comfort letters relating or immediately after the Offer Closing to the Financing;
(iv) causing Allergan’s independent auditors extent direct borrowings or debt incurrence by the Company is contemplated by any such financing; provided that nothing herein shall require such cooperation to provide customary cooperation the extent it would interfere unreasonably with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed business or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities operations of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and Company or its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or ; provided, further, that neither the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or Company nor any of its Subsidiaries shall be required to commit to take any action that is not contingent upon the Closing (including the entry into any agreement) or that would be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (effective prior to the extent requiredOffer Closing. None of the Company nor any of its Subsidiaries shall be required to take any action that would subject it to actual or potential liability or to bear any cost or expense or to pay any commitment or other similar fee (other than reasonable out-of-pocket costs) evidence that notice of in connection with any such repayment has been timely delivered financing or any of the foregoing prior to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring Offer Closing. The Company hereby consents to the reasonable use of all of Allerganthe Company’s and its Subsidiaries’ logos in connection with the Financing (any such financing, provided that such logos are used solely in a manner that is not intended to and is not or reasonably likely to harm or disparage Allergan the Company or any of its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Notwithstanding anything to the contrary in this Section 7.9(a) or Section 7.9(b) below, (A) none of Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan Company or any of its Subsidiaries or Representatives pursuant to any of their logos and on such other customary terms and conditions as the Company shall reasonably impose.
(b) Parent shall, promptly upon request by the Company following any termination of this Section 7.9 to be kept confidential in accordance with Agreement, reimburse the Confidentiality Agreement; provided, that Allergan acknowledges Company for all documented and agrees that reasonable out-of-pocket costs incurred by the confidentiality undertakings that will be obtained Company or its Subsidiaries in connection with syndication of Section 6.16(a) and Parent shall indemnify and hold harmless the Financing will be Company and its Subsidiaries and their respective Affiliates, directors, officers, employees and agents from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred in a form customary for use connection with any assistance or activities provided in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover Rulesconnection therewith.
Appears in 2 contracts
Samples: Merger Agreement (Bishop Infrastructure III Acquisition Company, Inc.), Merger Agreement (Westway Group, Inc.)
Financing Cooperation. (a) Until Parent, REIT Merger Sub and Partnership Merger Sub shall use reasonable best efforts to take, or cause to be taken, all actions and do, or cause to be done, as promptly as possible, all things necessary, proper or advisable to consummate and obtain at or prior to the earlier Closing the Debt Financing on the terms and conditions set forth in the Debt Commitment Letter or, if Parent determines that such Debt Financing will not be so obtained, Financing from alternative sources in an amount sufficient, together with funds otherwise available to Parent, to fund the REIT Merger Consideration, Partnership Merger Consideration and Share Awards required at the Closing on terms not materially less favorable to Parent than set forth in the Debt Commitment Letter (the “Alternate Financing”), including using reasonable best efforts to (i) negotiate and enter into definitive agreements with respect to the Debt Financing on the terms and subject only to the conditions contained in the Debt Commitment Letter (including, to the extent required, the full exercise of any “flex” provisions contained in the Completion Redacted Fee Letter) or the Alternate Financing (the “Financing Agreements”), (ii) satisfy on a timely basis all conditions applicable to Parent, REIT Merger Sub or Partnership Merger set forth in the Debt Commitment Letter (or any replacement commitment letter for an Alternate Financing) and the valid termination Financing Agreements and comply with their obligation thereunder, and (iii) prepare the necessary offering circulars, private placement memoranda, or other offering documents or marketing materials with respect to the Debt Financing or any Alternate Financing. Parent shall promptly deliver to the Company true and complete copies of this Agreement pursuant any commitment letter (including Redacted Fee Letters) and similar documents relating to any Alternate Financing.
(b) Without limiting Section 7.6, subject to and in accordance with Article 9applicable Law, Allergan shall use its reasonable best effortsthe Company agrees to, and shall to cause each of its Company LP and the Company Subsidiaries to, and to use its commercially reasonable best efforts, and shall use its reasonable best efforts to cause their respective Representatives to, provide all cooperation reasonably requested by Parent and any Financing Sources in connection with any Financing, including: (i) furnishing to Parent and such Financing Sources as promptly as practicable the Required Information and periodically updating the Required Information so that it is complete and correct in all material respects and does not include an untrue statement of a material fact or omit to state a fact necessary to make the statements, in the light of the circumstances under which they were made, not misleading; (ii) using commercially reasonable efforts to provide information within its control that is reasonably requested by Parent or any Financing Sources for the preparation of private or public customary confidential information memoranda, private placement memoranda, registration statements, prospectuses and supplements thereto and offering documents otherwise customary for such Financing (collectively, the “Offering Materials”) and roadshows and other customary marketing materials to be used in connection with such Financing reasonably deemed necessary by such Financing Sources to complete a successful syndication or offering of such Financing or otherwise in connection with such Financing, including customary authorization letters that confirm that the public version of any bank confidential information memorandum does not include any material non-public information with respect to the Company, Company LP and the Company Subsidiaries, and participating (including the participation of Company Representatives) in reasonable due diligence sessions and informational meetings with Parent, any Financing Sources (including potential Financing Sources) and their respective officersRepresentatives related to any Financing; (iii) causing the Company’s, employees Company LP’s and advisors and other RepresentativesCompany Subsidiaries’ (as applicable) independent auditors to reasonably cooperate with respect to any Financing consistent with customary practice, including by providing customary “comfort letters” (including customary “negative assurances” and pro forma financial statement comfort) and customary assistance with the due diligence activities of Parent and any Financing Sources, and customary consents to the inclusion of audit reports in any relevant marketing materials, registration statements and related government filings, and causing the Company’s, Company LP’s and Company Subsidiaries’ legal and accounting advisors, to use their reasonable best efforts, counsel to provide customary assistance with the due diligence activities of Parent and any Financing Sources; (iv) taking all reasonable actions and providing all information related to AbbVie and its Subsidiaries the Company that is reasonably available to it to assist Parent in the consummation of any Financing, including the preparation of definitive agreements for such assistance Financing, as may be reasonably requested by AbbVie in writing that is customary Parent; (v) delivering to Parent and any Financing Sources as promptly as reasonably practicable all documentation and other information requested by Parent and any Financing Sources and required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the Patriot Act; (vi) reasonably cooperating with Parent and the Financing Sources to facilitate the consummation of any Financing to the extent within the control of the Company, Company LP and the Company Subsidiaries, including reasonably cooperating with Parent, REIT Merger Sub and Partnership Merger Sub to satisfy any conditions precedent to any Financing; and (vii) using commercially reasonable efforts to obtain a rating for any debt securities offered in connection with the arranging, obtaining and syndication of the any Financing, including using reasonable best efforts with respect to:
(i) participating in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting . Subject to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmationsprior review by, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectivelyconsent of, the “Financing Information”) with respect Company (such consent not to Allergan and its Subsidiaries as is reasonably requested by AbbVie be unreasonably withheld or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualificationsdelayed), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVieCompany’s, Company LP’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as the Company Subsidiaries’ logos may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the any Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not or reasonably likely to harm or disparage Allergan the Company, Company LP or its the Company Subsidiaries or the reputation or goodwill of Allergan the Company, Company LP or any of its the Company Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Notwithstanding anything to the contrary in this Section 7.9(a7.17(b) or Section 7.9(b) belowany other provisions of this Agreement, (A) prior to the Closing, none of Allergan nor the Company, Company LP or any of its the Company Subsidiaries shall be required to take or permit the taking of have any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee responsibility for, or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed to, any Person under or in connection with the transactions contemplated by AbbVie upon request by Allergan pursuant to Section 7.9(c))any Financing, (ii) execute or deliver any definitive financing documents Financing Agreement or any other agreement, certificate, document or instrument, or agree instrument relating to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projectionsFinancing, (B) none of the Allergan BoardCompany, officers of Allergan, Company LP or directors and officers any of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Company Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably under or in connection with the business transactions contemplated by any agreement, certificate, document or operations of Allergan or its Subsidiariesinstrument relating to any Financing that is not contingent upon the Closing Date (including the entry into any agreement that is effective before the Closing Date), (ii) that would reasonably be expected to cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie)trustee, (iii) cause any director, officer or employee or shareholder of Allergan the Company, Company LP or any of its the Company Subsidiaries to incur any personal liability relating to any Financing, (iii) that will conflict with or violate its Organizational Documents or any applicable Laws, or (iv) result in a that would cause any condition to the Closing to fail to be satisfied or otherwise cause any material violation breach of this Agreement, (C) the pre-Closing board of trustees (or breach ofsimilar governing body) of the Company, Company LP and any of the Company Subsidiaries shall not be required to adopt resolutions approving the agreements, documents and instruments pursuant to which any Financing is obtained, (D) none of the Company, Company LP or any of the Company Subsidiaries shall be required to execute any definitive Financing documents, including any credit or other agreements, pledge or security documents, or a default underother certificates, legal opinions or documents in connection with any material Contract Financing Agreements that are effective prior to which Allergan the Closing, and (E) none of the Company, Company LP or any of the Company Subsidiaries shall be required to take any trust, limited partnership or limited liability company actions that are effective prior to the Closing to permit the consummation of any Financing. None of the Company, Company LP or any of the Company Subsidiaries, or any of their respective Representatives, shall have any liability to Parent or any of its Subsidiaries is a partyAffiliates in respect of any financial statements, other financial information or data or other information provided pursuant to this Section 7.17(b). Notwithstanding anything to the contrary, the Organizational Documents condition set forth in Section 8.2(b), as it applies to the Company’s obligations under this Section 7.17(b) shall be deemed satisfied unless any Financing has not been obtained primarily as a result of Allergan the Company’s, Company LP’s or the Company Subsidiaries’ willful and material breach of its obligations under this Section 7.17(b).
(c) Parent shall, promptly upon demand by the Company, reimburse the Company for all reasonable out-of-pocket costs and expenses incurred by the Company, Company LP, the Company Subsidiaries and their respective Representatives in connection with the cooperation required by or requested pursuant to this Section 7.17. Parent, REIT Merger Sub and Partnership Merger Sub shall, on a joint and several basis, indemnify and hold harmless the Company, Company LP, the Company Subsidiaries and their respective 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 any Financing and any information utilized in connection therewith (other than historical information related to the Company, Company LP and the Company Subsidiaries) except to the extent finally determined by a court of competent jurisdiction to have arisen from the Company’s, Company LP’s or any applicable Law. AbbVie shall cause all Company Subsidiary’s fraud, gross negligence or willful misconduct.
(d) All non-public or other otherwise confidential information provided regarding the Company obtained by Parent or on behalf of Allergan or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to 7.17 shall be kept confidential in accordance with the Confidentiality Nondisclosure Agreement; provided, and Parent shall be liable for any breach of this provision or the Nondisclosure Agreement by Parent or any of its Representatives to the same extent as if the breach had been committed directly by Parent.
(e) For purposes of clarity, the parties acknowledge and agree that Allergan acknowledges and agrees that in no event shall the confidentiality undertakings that will be obtained in connection with syndication consummation of all or any portion of any Financing constitute a condition to the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover RulesClosing hereunder (pursuant to Article 8 or otherwise).
Appears in 2 contracts
Samples: Merger Agreement (First Potomac Realty Trust), Merger Agreement (Government Properties Income Trust)
Financing Cooperation. (a) Until If, prior to the Closing, Parent elects to seek financing in connection with the Merger that does not require any approvals, orders, authorizations, or actions by or any registrations, declarations, or filings with any Governmental Authority, from and after the date that the Company receives written notice from Parent of such election until the earlier of the Completion Closing and the valid termination of date that this Agreement pursuant to and is terminated in accordance with Article 9its terms, Allergan the Company, at the sole expense of Parent, shall use its commercially reasonable best efforts, efforts to provide and shall cause each of its Subsidiaries and Representatives to use its provide, all such reasonable best efforts, and shall use its reasonable best efforts to cause its and their respective officers, employees and advisors and other Representatives, including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie and its Subsidiaries such assistance cooperation as Parent may be reasonably requested by AbbVie request in writing in connection with any financing efforts that is customary Parent may undertake in connection with the arrangingMerger, obtaining including, as applicable, (a) upon reasonable advance written notice, assisting in the preparation for and syndication of the Financing, including using reasonable best efforts with respect to:
(i) participating in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetingsmeetings at mutually agreeable times and locations, presentations(b) furnishing reasonably available financial and other information regarding the Company reasonably requested by Parent or the relevant financing sources to consummate such financing and customary to be included in marketing materials for such financing, road shows, (c) participating in drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (Bd) assisting with AbbVie’s the preparation of customary materials for registration statementssyndication documents and materials, offering documentsincluding a bank confidential information memorandum, private placement memoranda, bank information memoranda, prospectuseslender presentation, rating agency presentations materials and similar presentations, and other customary marketing materials in connection with such financing, (e) providing information reasonably available as requested for the evaluation of assets included or that may be included in any borrowing base or covered by security interests, (f) assisting in the preparation of schedules to collateral agreements, (g) subject to any contractual agreement in effect, facilitating the providing of guarantees and the pledging of collateral for such financing, including, upon reasonable advance written notice at mutually agreeable times and, if applicable, locations, taking commercially reasonable actions necessary to permit the relevant financing sources to evaluate the Company’s and the Company Subsidiaries’ real property and personal property that would constitute collateral under such financing, solely for the purpose of establishing pledges over such assets to secure the obligations under the definitive documents for such financing, in each case which shall not be required to be delivered or effective until at or promptly following the Effective Time and (h) providing reasonable and customary assistance with the preparation of documents customarily required in connection with such financing (excluding, for the Financing (collectivelyavoidance of doubt, “Marketing Material”) and due diligence sessions related theretoany solvency certificates, (C) delivering and consenting to which shall be the inclusion or incorporation in any SEC filing related to the Financing responsibility of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization lettersParent), management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial providing all documentation and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan Company or any of its Subsidiaries to be repaid required thereunder and any documentation or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing required by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitationthe U.S.A. Patriot Act of 2001; provided, however, that the USA PATRIOT ACT. Notwithstanding anything Company shall not: (x) prior to or as a result of the contrary Merger, take on any debt or liabilities, or provide for the use of its cash or assets, which would be in this Section 7.9(aexcess of the Company’s distributable profits (as defined in the ICL), in connection with the financing of the Per Share Merger Consideration or other costs or fees to be paid by Parent hereunder, as such use would require court approval under ICL, or (y) be required to take any particular action that requires any approvals, orders, authorizations, or Section 7.9(bactions by or any registrations, declarations, or filings with any Governmental Authority (including in connection with any necessary court approvals in connection with any dividend of the Company’s existing cash); and provided further that (i) belowneither the Company, (A) none its Subsidiaries, nor any persons who are directors of Allergan nor the Company or any of its Subsidiaries shall be required to take pass resolutions or permit consents to approve or authorize the taking execution of any action pursuant to this Section 7.9(a) agreements or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c))instruments for such financing, (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light no obligation of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan Company or any of its Subsidiaries reasonably determines would jeopardize under any attorney-client privilege of Allergan certificate or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to document will be disclosed in a manner that would not result in effective until the loss of any such privilege)Effective Time, (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (Biii) none of the Allergan BoardCompany, officers of Allergan, its Subsidiaries or directors and officers of the Subsidiaries of Allergan their respective Representatives shall be required to adopt resolutions or consents approving the agreements, documents or instruments cooperate pursuant to which this Section 5.14 in any manner that would unreasonably interfere with the Financing is obtained ongoing operations of the Company or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), its Subsidiaries and (Civ) neither Allergan nor none of the Company or any of its Subsidiaries shall be required to take pay any commitment or permit the taking of other similar fee or incur any action that would (i) interfere unreasonably other liability in connection with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty foregoing prior to the Effective Time. Notwithstanding anything in this Agreement to the contrary, the Company shall not be breached required to cooperate in connection with any financing at such point that such financing would be reasonably likely to prevent or materially delay the consummation of the Merger.
(b) Parent shall reimburse the Company for its reasonable out of pocket costs incurred by Allergan the Company in connection with this Section 5.14 and shall indemnify, defend and hold harmless the Company and its Subsidiaries and its and their Representatives from and against any and all liabilities, obligations, losses, damages, claims, costs, expenses, awards, judgments and penalties suffered or incurred by any of its Subsidiaries (unless waived by AbbVie)them in connection with any financing and any information used in connection therewith, (iii) cause except and solely to the extent that any directorsuch obligations, officer losses, damages, claims, costs, expenses, awards, judgments and penalties, fees, costs or employee other liabilities are suffered or shareholder incurred as a result of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan Company’s or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public its or other confidential information provided by their Representatives’ gross negligence, bad faith, willful misconduct or on behalf material breach of Allergan or any this Agreement.
(c) Each of its Subsidiaries or Representatives pursuant to this Section 7.9 to be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan Parent and Merger Sub acknowledges and agrees that the confidentiality undertakings that will be obtained Company, its Subsidiaries and their Representatives have no responsibility for any financing in connection with syndication the transactions contemplated hereby. Accordingly and notwithstanding anything in this Agreement to the contrary, the failure of the Financing will be in a form customary Company, its Subsidiaries and/or Representatives to provide the cooperation contemplated by this Section 5.14 shall not constitute grounds for use in (i) Parent or Merger Sub to refuse to consummate the syndication of acquisition-related debt during a takeover offer period in compliance with Merger or to terminate this Agreement or (ii) give rise to the requirements payment of the Panel and the Takeover RulesCompany Termination Fee.
Appears in 2 contracts
Samples: Merger Agreement (Magicjack Vocaltec LTD), Merger Agreement (B. Riley Financial, Inc.)
Financing Cooperation. (a) Until the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan shall use its reasonable best efforts, and shall cause each of its Subsidiaries to use its reasonable best efforts, and The Company shall use its reasonable best efforts to provide, and to cause its Subsidiaries and each of their respective officers, employees and advisors and other Representatives, including legal and accounting advisorsRepresentatives to provide, to use their Parent and Purchaser, reasonable best efforts, to provide to AbbVie and its Subsidiaries such assistance as cooperation that may be reasonably requested by AbbVie in writing Parent and Purchaser and that is customary necessary or customary, proper or advisable in connection with the arrangingarrangement of any loan transaction or capital markets debt financing (whether public or private) undertaken by Parent in contemplation of the consummation of the Transactions (any such financing, obtaining the “Financing”), including reasonable cooperation, in each case to the extent reasonably requested: (i) to provide, within a reasonable amount of time following such reasonable request, to Parent, Purchaser and syndication their financing sources material financial and other pertinent information with respect to the Company and its Subsidiaries and the Transactions, including information and projections prepared by the Company relating to the Acquired Companies and the Transactions, all financial information regarding the Acquired Companies required in connection with the preparation of the Finance Offering Documents and diligence documentation reasonably requested by persons in connection with the Financing; (ii) to cooperate with the marketing efforts of Parent, Purchaser and their financing sources for any of the Financing, including using causing its Representatives to participate, during normal working hours and upon reasonable best efforts with respect to:
(i) participating notice, in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable a reasonable number of times; (iii) to Allergan and upon reasonable notice, (B) assisting assist with AbbVie’s the preparation of customary materials for registration statementsrating agency presentations, lender presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency road show presentations and similar documents required (including the preparation of pro forma financial statements meeting the requirements of SEC Regulation S-X) necessary, proper or advisable in connection with the Financing (collectively, the “Marketing MaterialFinance Offering Documents”); (iv) and due diligence sessions related thereto, (C) delivering and consenting to assist Parent in obtaining consents of the inclusion or incorporation Company’s auditors for use of their reports in any SEC filing related materials relating to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents customary “comfort letters” (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions assurances and customary comfort “bring-down” letters relating to from the Financing;
(iv) causing AllerganCompany’s independent auditors to provide accountants on customary cooperation with the Financing;
terms); and (v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of provide all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to required under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACTAct. Notwithstanding anything the foregoing, (i) no obligation of the Company or its Subsidiaries under any certificate, document or instrument executed pursuant to the contrary foregoing shall be effective until the Offer Acceptance Time (or such later time set forth in this Section 7.9(asuch certificate, document or instrument), and neither the Company nor its Subsidiaries nor any of their respective Representatives shall be required to take any action under any such certificate, document or instrument that is not contingent upon the consummation of the Offer (including the entry into any agreement that is effective before consummation of the Offer) or Section 7.9(b) belowthat would be effective prior thereto or take any corporate actions prior to the Closing, (Aii) none nothing herein shall require cooperation to the extent that such cooperation would, in the good faith determination of Allergan the Company, interfere unreasonably with the business or operations of the Company or its Subsidiaries, (iii) neither the Company nor any of its Subsidiaries shall be required to waive or amend any terms of this Agreement, (iv) neither the Company nor any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) that will conflict with or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing violate its organizational documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shallLegal Requirement, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to neither the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan Company nor any of its Subsidiaries shall be required to take issue any offering or permit information document (other than as required to comply with Company’s obligations pursuant to this Section 6.14). None of the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan Company or any of its Subsidiaries shall be required to take any action that would subject it to actual or potential liability, to bear any cost or expense or to pay any commitment or other similar fee or make any other payment (unless waived other than reasonable out-of-pocket costs that will be reimbursed by AbbVie), (iiiParent pursuant to this Section 6.14) cause or incur any director, officer other liability or employee provide or shareholder of Allergan agree to provide any indemnity in connection with the Financing or any of the foregoing that would be effective prior to the Closing. The Company hereby consents to the use of the logos of the Company and its Subsidiaries to incur any personal liability in connection with the syndication or (iv) result marketing of the Financing; provided that such logos are used in a material violation manner that is reasonable and customary in connection with a Financing, and in any event, not intended to harm or breach ofdisparage the Company, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a partyor their marks.
(b) Parent shall, promptly upon written request by the Organizational Documents of Allergan Company, reimburse the Company for all reasonable out-of-pocket costs incurred by the Company or its Subsidiaries in connection with their cooperation and indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all losses, damages, claims, interest, awards, judgments, penalties, settlements, costs or any applicable Law. AbbVie shall cause all non-public expenses (including reasonable attorneys’ fees) suffered or incurred by them to the extent such losses, damages, claims, interest, awards, judgments, penalties, settlements, costs or expenses arose out of the actions taken by the Company, its subsidiaries or their respective Representatives pursuant to this Section 6.14 (other confidential than information provided by the Company, its Subsidiaries or on behalf their respective Representatives in writing for express use therein), except in the event such losses, damages, claims, interest, awards, judgments, penalties, settlements, costs or expenses are determined by a final non-appealable judgment of Allergan a court of competent jurisdiction to have arisen out of or resulted from the gross negligence or willful misconduct of the Company, any of its Subsidiaries or Representatives any of their respective Representatives.
(c) Notwithstanding anything herein to the contrary, Parent and Purchaser acknowledge and agree that obtaining the Financing is not a condition to consummation of the Transactions, and that, irrespective and independently of the availability of the Financing, Parent and Purchaser shall be obligated to pay for the tendered Shares and consummate the Merger and the other Transactions as provided herein, subject to the satisfaction or waiver of the Offer Conditions or the conditions set forth in Section 7, as applicable. Notwithstanding anything in this Agreement to the contrary, the condition set forth in clause (c) of Annex I, as it applies to the Company’s obligations pursuant to this Section 7.9 to 6.14, shall be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained in connection with syndication of the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover Rulesdeemed satisfied.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Kite Pharma, Inc.), Merger Agreement (Gilead Sciences Inc)
Financing Cooperation. (a) Until the earlier of the Completion and the valid termination of this Agreement pursuant Prior to and in accordance with Article 9Closing, Allergan shall use its reasonable best efforts, and shall cause each of its Subsidiaries to use its reasonable best efforts, and Seller shall use its reasonable best efforts to to, and shall cause its Affiliates and its and their respective officers, employees and advisors and other Representatives, including legal and accounting advisors, Representatives to use their reasonable best efforts, efforts to provide to AbbVie and its Subsidiaries such assistance reasonably cooperate in connection with Purchaser’s arrangement of any debt financing for the transactions contemplated by this Agreement as may be reasonably requested by AbbVie in writing that is customary in connection with the arranging, obtaining and syndication of the FinancingPurchaser at Purchaser’s sole expense, including using reasonable best efforts with respect to:
(ia) participating in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and road shows (it being understood that no participation by any director of Seller or its Affiliates or any officer of Seller or its Affiliates (other than officers of the Company and the Transferred Subsidiaries) shall be required in any such meetings, presentations, due diligence sessions, drafting sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required lenders in connection with the Purchaser Financing), (b) as promptly as reasonably practicable, furnishing Purchaser, its Affiliates and its financing sources (subject to the financing sources being bound by confidentiality agreements in accordance with customary market practice) with the financial information required by clause (g) of Exhibit C of the Financing Commitment as in effect on the date hereof (collectively, the “Marketing MaterialFinancing Commitment Required Information”) and due diligence sessions related theretosuch other information regarding the Company and the Transferred Subsidiaries customarily included in information memoranda and other syndication materials for revolving and term loan facilities but excluding, (C) delivering and consenting to for the inclusion or incorporation in avoidance of doubt, any SEC filing related to the Financing of the historical audited pro forma financial statements, including providing consolidated financial statements for the Company and unaudited consolidated interim financial statements the Transferred Subsidiaries as of Allergan included or incorporated by reference into and for the Allergan SEC Documents year ended December 31, 2014 no later than February 15, 2015, (c) reasonably cooperating with the “Historical Financial Statements”marketing efforts of Purchaser and its financing sources for any debt to be raised to complete the transactions contemplated hereby, (d) assisting with the preparation of customary materials, including information memoranda and (D) delivering customary authorization letterspackages, management representation letterslender and investor presentations, confirmationsrating agency presentations, and undertakings similar documents and materials, in connection with the Marketing Material financing, (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(iie) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, facilitating the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings pledging of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used collateral in connection with the Financing;
Purchaser Financing (viwhich shall only be effective at or after Closing) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with (f) the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan execution and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing delivery of any indebtedness for borrowed money commitment letters, pledge and security documents, other definitive financing documents, or other requested certificates of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan Purchaser Financing. None of Seller, its Affiliates or its Subsidiaries or the reputation their Representatives shall have any liability or goodwill of Allergan obligation under any agreement or any of document related to Purchaser’s financing or be required to take any action in violation or conflict with any applicable Laws, and Purchaser shall indemnify, defend and hold harmless Seller and its Subsidiaries); and
Affiliates, and their respective Representatives, from and against any and all Losses suffered or incurred by them (x) providing at least three (3) Business Days in advance of the Completion Date such documentation including attorneys’ and other information about Allergan fees and its Subsidiaries expenses as is reasonably requested in writing by AbbVie at least ten (10incurred) Business Days in advance of the Completion Date in connection with the performance of its obligations under this Section 7.18 or in connection with the arrangement of the Purchaser Financing that relates except in the event such Losses arose out of or resulted from the willful misconduct of any such persons or historical information relating to applicable “know your customer” and anti-money laundering rules and regulations, including without limitationthe Company or the Transferred Subsidiaries provided in writing by or on behalf of Seller, the USA PATRIOT ACTCompany or the Transferred Subsidiaries for use in the Purchaser Financing offering materials, and this indemnification shall survive termination of this Agreement. Notwithstanding anything to Purchaser shall promptly, upon request by Seller, reimburse Seller for all costs and expenses (including attorneys’ fees) incurred by Seller or its Affiliates (including the contrary documented out-of-pocket Company and the Transferred Subsidiaries) in connection with the cooperation contemplated by this Section 7.18. For the avoidance of doubt, (x) nothing in this Section 7.9(a) 7.18 shall require any cooperation to the extent that it would unreasonably interfere in any material respect with the business or Section 7.9(b) belowoperations of Seller or its Affiliates (including the Company and the Transferred Subsidiaries), (Ay) none of Allergan nor any of Seller or its Subsidiaries Affiliates (including the Company and the Transferred Subsidiaries) shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other similar fee or incur any other liability or obligation in connection with the Purchaser Financing and (other than third-party costs z) none of Seller or their respective Affiliates (including the Company and expenses that are the Transferred Subsidiaries) shall be required to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents or document, including any other agreement, instrument, guaranty, warranty, indemnity or certificate, document that is not contingent upon the Closing or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable LawClosing. AbbVie shall cause all All non-public information identified as such regarding Seller and its Affiliates provided to Purchaser, its Affiliates or other confidential information provided by or on behalf of Allergan or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to 7.18 shall be kept confidential by them in accordance with the Confidentiality Agreement; providedSection 7.11, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained except for disclosure to potential lenders or investors as required in connection with syndication the Purchaser Financing subject to customary confidentiality provisions. For the avoidance of doubt, Purchaser’s obtaining of any debt financing shall not be a condition to the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover RulesClosing.
Appears in 2 contracts
Samples: Securities Purchase Agreement (BATS Global Markets, Inc.), Securities Purchase Agreement (KCG Holdings, Inc.)
Financing Cooperation. (a) Until From the date hereof until the earlier of the Completion and Closing Date or the valid termination of this Agreement pursuant to and Section 9.01 (the “Interim Period”), in accordance order to assist the Company in connection with Article 9obtaining any Company Recapitalization Debt Financing, Allergan shall use its reasonable best effortsSPAC shall, and shall cause each of its Subsidiaries to affiliates and use its commercially reasonable best efforts, and shall use its reasonable best efforts to cause its and their such affiliates’ respective officers, employees and advisors employees, attorneys, agents and other RepresentativesRepresentatives to, including legal and accounting advisors, to use their upon the reasonable best efforts, to provide to AbbVie and its Subsidiaries such assistance as may be reasonably requested by AbbVie in writing that is customary in connection with the arranging, obtaining and syndication request of the Financing, including using reasonable best efforts with respect to:
(i) participating in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable noticeCompany, (Ba) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including promptly provide all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing required with respect to SPAC and/or the shareholders of SPAC by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACTAct, and a customary beneficial ownership certification, in each case, as reasonably requested by any financing source in connection with such Company Recapitalization Debt Financing and to the extent reasonably available or accessible to SPAC and (b) reasonably cooperate with the Company with respect to the arrangement of any such Company Recapitalization Debt Financing. Notwithstanding For the avoidance of doubt, the Company’s ability to consummate any Company Recapitalization Debt Financing and SPAC’s compliance with this Section 7.09(a) shall not be construed as conditions to the consummation of the Transactions. The Company shall promptly notify SPAC of the details and descriptions of any proposed Company Recapitalization Debt Financing as such details become available.
(b) Without limiting anything to the contrary in this Section 7.9(a) or Section 7.9(b) belowcontained herein, during the Interim Period, SPAC shall use its reasonable best efforts to enter into the Additional Financing Agreements on such terms as SPAC and the Company shall mutually agree (A) none of Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are such agreement not to be promptly reimbursed unreasonably withheld, conditioned or delayed) and, if requested by AbbVie upon request by Allergan pursuant to Section 7.9(c))SPAC, (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan Company shall, and shall cause its Subsidiaries Representatives to, reasonably cooperate with SPAC in connection with such Additional Financing Agreements (including having the Company’s senior management participate in any investor meetings and roadshows as reasonably requested by SPAC). SPAC shall use their respective reasonable best efforts to cause any such information enter into one or more Additional Financing Agreements with Investors (in addition to Sponsor) that will reasonably agree to permit SPAC, the Company and their respective Representatives to disclose the Investors’ commitments pursuant to the Additional Financing Agreements for investment marketing purposes. Except to the extent permitted pursuant to the terms of the Financing Agreements or otherwise approved in writing by the Company (which approval shall not be unreasonably withheld, conditioned or delayed), during the Interim Period, SPAC shall not (i) reduce the committed investment amount to be disclosed received by SPAC or the Company under any Financing Agreement or reduce or impair the rights of SPAC under any Financing Agreement or (ii) permit any amendment or modification to be made to, any waiver (in a manner that would not result whole or in the loss of any such privilegepart) of, or provide consent to modify (including consent to terminate), (iv) deliver any provision or cause its Representatives to deliver remedy under, or any legal opinion or negative assurance letter (exceptreplacements of, any of the Financing Agreements, in connection with each case, other than any assignment or transfer contemplated therein or expressly permitted thereby (without any further amendment, modification or waiver to such assignment or transfer provision). SPAC and the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and Company shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to consummate the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to be kept confidential Private Placement in accordance with the Confidentiality Agreement; providedFinancing Agreements. Without limiting the foregoing, that Allergan acknowledges and agrees that SPAC shall use its reasonable best efforts to meet the confidentiality undertakings that will be obtained condition to the Closing set forth in connection with syndication of the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover RulesSection 8.01(h).
Appears in 2 contracts
Samples: Business Combination Agreement (ESGEN Acquisition Corp), Business Combination Agreement (ESGEN Acquisition Corp)
Financing Cooperation. (a) Until Prior to the earlier of Effective Time, the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan Company shall use its reasonable best efforts, and shall cause each of its Subsidiaries to use its reasonable best effortsefforts to, and shall use its reasonable best efforts to cause its the Company Subsidiaries to, and shall use reasonable best efforts to cause their respective officers, employees employees, consultants and advisors and other Representativesadvisors, including legal and accounting advisors, to use their reasonable best effortsof the Company and the Company Subsidiaries to, to provide to AbbVie and its Subsidiaries Parent such assistance cooperation as may be reasonably requested by AbbVie in writing that is customary Parent in connection with the arranging, obtaining and syndication of the Debt Financing, including including, using reasonable best efforts with respect to:
(i) participating in make senior management and assisting with the due diligence, syndication or other marketing advisors of the Financing, including using reasonable best efforts with respect Company and the Company Subsidiaries available to (A) the participation by members of management of Allergan with appropriate seniority participate in a reasonable number of meetings, presentations, road shows, drafting sessions, shows and due diligence sessions with actual or proposed lenders, underwriters, arrangers, initial purchasers or placement agents with respect to the Debt Financing (together with their respective Affiliates and other related Persons, the “Debt Financing Sources”), and in sessions with prospective lendersrating agencies or other syndication activities;
(ii) provide reasonable access by Parent and any Debt Financing Sources, investors and rating agenciestheir respective officers, at times employees, consultants and at locations advisors (including legal, valuation, and accounting advisors) to the books and records, properties, officers, directors, agents and representatives of the Company and the Company Subsidiaries and assist with due diligence activities relating to the Company’s and the Company Subsidiaries’ financial information;
(iii) assist with the preparation of, and subject to the occurrence of the Effective Time, executing and delivering definitive financing documents, including pledge and security documents, original equity certificates and associated transfer powers, guaranties, legal opinions, certificates, management representation letters and other documents, to the extent reasonably acceptable requested by Parent, and otherwise reasonably facilitating the pledging of, and granting, recording and perfection of security interests in, collateral;
(iv) request and cooperate in obtaining customary payoff letters, lien terminations and instruments of discharge, relating to Allergan any indebtedness of the Company and upon reasonable notice, the Company Subsidiaries;
(Bv) assisting assist Parent with AbbVie’s its preparation of customary pro forma financial information and pro forma financial statements and other materials for registration statementsrating agency presentations, offering documents, private placement memoranda, registration statements, bank information memoranda, prospectuses, rating agency presentations business projections and similar documents required used in connection with the Debt Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering providing customary estimates and consenting other forward-looking financial information regarding the further performance of the business of the Company and the Company Subsidiaries to the inclusion or incorporation in any SEC filing related to extent reasonably requested by the Debt Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers)Sources;
(iivi) timely furnishing AbbVie cause its independent accountants to provide assistance and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect cooperation to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable typeParent, including all Historical Financial Statements participating in drafting sessions and other customary information with respect to Allergan and its Subsidiaries (A) accounting due diligence sessions, assisting in the preparation of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of to be included in the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating presentations referred to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
clause (v) obtaining the consents of Allergan’s independent auditors above and providing consent to Parent to use their audit reports on relating to the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing SourcesCompany;
(vii) causing the Financing furnish to benefit from the existing lender relationships of Allergan Parent and its Subsidiaries;Debt Financing Sources all pertinent and customary financial and other information regarding the Company and the Company Subsidiaries reasonably requested by Parent as promptly as practicable following such request to consummate the Debt Financing, including the historical financial statements and other information relating to the Company and its Subsidiaries described in paragraph 3 and paragraph 7 of Exhibit D to the Commitment Letter, including the comfort letters referenced in such paragraph 7 (all such financial statements, information and comfort letters, the “Required Information”); and
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating subject to the repayment or refinancing occurrence of any indebtedness for borrowed money the Closing, take all corporate actions necessary to permit consummation of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtednessDebt Financing; provided, in each case in accordance that nothing herein shall require such cooperation to the extent it would interfere materially and unreasonably with the terms business or operations of the definitive documents governing such indebtedness (provided that any such notice Company or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring Company Subsidiaries. The Company hereby consents to the reasonable pre-approved use in each case of all of Allergan’s its and the Company Subsidiaries’ logos in connection with the Financing (Debt Financing; provided that such logos are used solely in a manner that is not intended to and is not or reasonably likely to harm or disparage Allergan the Company or its any of the Company Subsidiaries or the reputation or goodwill of Allergan the Company or any of the Company Subsidiaries or any of their logos and on such other customary terms and conditions as the Company shall reasonably impose.
(b) Prior to the Effective Time, the Company shall, and shall cause the Company Subsidiaries to, and shall cause their respective officers, employees, consultants and advisors, including legal and accounting advisors of the Company and the Company Subsidiaries to, furnish to Parent and its Debt Financing Sources:
(i) customary authorization and representation letters in connection with the materials and other documents used in connection with the Debt Financing, which may include customary representations that such information does not contain a material misstatement or omission and that the public-side versions of such documents, if any, do not contain material non-public information with respect to the Company, its Affiliates or any of its Subsidiaries)or their respective securities for purposes of any applicable securities laws; and
(xii) providing at least three four (34) Business Days in advance of prior to the Completion Date such anticipated Effective Time, all documentation and other information about Allergan the Company and its the Company Subsidiaries as is reasonably requested in writing required by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to applicable “know your customer” and anti-money laundering rules and regulations, regulations (including without limitation, the USA PATRIOT ACT. Patriot Act) to the extent requested at least ten (10) calendar days prior to the anticipated Effective Time, in each case, as required to be delivered pursuant to the Commitment Letter or that is otherwise necessary to satisfy the conditions in Exhibit D thereof.
(c) Notwithstanding anything to the contrary in this Section 7.9(a) or Section 7.9(b) below6.11 to the contrary, (A) none of Allergan neither the Company nor any of its the Company Subsidiaries shall be required to take (i) bear any out-of-pocket cost or permit the taking of any action expense that is not reimbursed pursuant to this Section 7.9(a6.11(c) or Section 7.9(b) below to (i) pay any commitment or other fee or in connection with the Debt Financing prior to the Effective Time, (ii) incur any liability (other than third-party costs and expenses or cause their respective directors, officers or employees to incur any liability) under the Debt Financing prior to the Effective Time that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), is not contingent on the Closing or (iiiii) execute enter into any agreement or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case commitment that would be effective prior to the Completion Date or would be effective if Effective Time (other than such authorization and representation letters described above and the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates consents of accountants for use of their reports in any materials relating to the execution thereof that would not conflict matters described above). Furthermore, Parent shall, promptly upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses incurred by the Company, the Company Subsidiaries and its and their respective Representatives in connection with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered their respective obligations pursuant to this Section 6.11. Parent shall indemnify and hold harmless the clause (i)(D) above)Company, (iii) provide access to the Company Subsidiaries and its and their respective Representatives from and against any and all losses, damages, claims, costs or disclose information that Allergan expenses suffered or incurred by any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, them in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, Debt Financing and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan any information utilized in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence than any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided in writing specifically for use by or on behalf of Allergan the Company or any of its the Company Subsidiaries), in each case other than to the extent any of the foregoing arises from the bad faith, gross negligence or willful misconduct of, or breach of this Agreement by, the Company or any of the Company Subsidiaries or Representatives pursuant to this Section 7.9 to be kept confidential in accordance with the Confidentiality Agreement; providedtheir respective Affiliates, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained in connection with syndication of the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover Rulesofficers, directors, employees, accountants, agents or Representatives.
Appears in 2 contracts
Samples: Merger Agreement (Constant Contact, Inc.), Merger Agreement (Endurance International Group Holdings, Inc.)
Financing Cooperation. (a) Until Prior to the earlier of Acceptance Time, the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan shall use its reasonable best effortsCompany shall, and shall cause each of its Subsidiaries to use its reasonable best effortssubsidiaries to, and shall use its reasonable best efforts to cause its and their the respective officers, employees employees, consultants and advisors and other Representativesadvisors, including legal and accounting advisors, to use their reasonable best effortsof the Company and its subsidiaries to, to provide to AbbVie and its Subsidiaries Parent such assistance cooperation as may be reasonably requested by AbbVie in writing that is customary Parent in connection with obtaining the arranging, obtaining and syndication of the Debt Financing, including using reasonable best efforts with respect to:
including, (i) participating in making senior management and assisting with the due diligence, syndication or other marketing advisors of the Financing, including using reasonable best efforts with respect Company and its subsidiaries available to (A) the participation by members of management of Allergan with appropriate seniority participate in a reasonable number of meetings, presentations, road shows, drafting sessions, shows and due diligence sessions with proposed lenders, underwriters, initial purchasers or placement agents, and in sessions with prospective lenders, investors and rating agencies; provided that, any rating agency presentations, bank information memoranda or similar documents required in connection with the Debt Financing shall contain disclosure reflecting the Company and/or its Subsidiaries or Affiliates as the obligor only at times and at locations reasonably acceptable to Allergan and upon reasonable noticeafter the Effective Time, (Bii) assisting Parent with AbbVieParent’s preparation of customary pro forma financial information and pro forma financial statements and other materials for registration statementsrating agency presentations, offering documents, private placement memoranda, registration statements, bank information memoranda, prospectuses, rating agency presentations business projections and similar documents required used in connection with the Debt Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering providing customary estimates and consenting other forward-looking financial information regarding the further performance of the business of the Company and its subsidiaries to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is extent reasonably requested by AbbVie or the Debt Financing sources, and providing customary authorization and representation letters in connection therewith, (iii) using reasonable best efforts to cause its Financing Sources independent accountants to provide assistance and customarily required in Marketing Material for Financings of the applicable typecooperation to Parent, including all Historical Financial Statements participating in drafting sessions and other customary information with respect to Allergan and its Subsidiaries (A) accounting due diligence sessions, assisting in the preparation of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of to be included in the applicable type;
documents referred to in clause (iiiii) above, providing consent to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors Parent to use their audit reports on relating to the audited Historical Financial Statements Company and providing any necessary “comfort letters”, (iv) executing and delivering definitive financing documents, including pledge and security documents, and certificates, management representation letters and other documents, to the extent reasonably requested by Parent, and otherwise reasonably facilitating the pledging of Allergan collateral, (v) requesting and cooperating in obtaining customary lien terminations and instruments of discharge, relating to references any indebtedness of the Company (it being understood and agreed that the Company’s obligations to such independent auditors provide payoff letters in respect of the Credit Agreement described in Section 6.10(c) below are as experts set forth in any Marketing Material Section 6.10(c) below) and registration statements its subsidiaries, and related government filings filed or used executing and delivering an officer certificate, required to be delivered to the Trustee under the Notes Indenture in connection with the Financing;
Merger, provided that any such certificates and documentation do not contain any statements or representations that are not factually accurate in the Company’s sole judgment and that any such certificates and documentation comply in all respects with, and do not cause the Company to breach or violate, applicable Law or the Notes Indenture ; and provided further that, to the extent any statements contained in any such officer certificate are based in part upon facts relating to Parent, including the amount of Parent’s cash on hand, the pro forma amount of debt of Parent or the Company following the Merger or the Parent Merger, pro forma compliance with any ratio or the absence of any default of event of default under agreements governing any indebtedness of Parent, or require Parent to consummate any further action or refrain from taking any further action in order for any such statements to be accurate, including consummating the Parent Merger, Parent shall deliver to the Company such officer certificates as are reasonably deemed necessary by the Company to enable it to delivery any such officer certificate to the Trustee; (vi) obtaining Allergan’s independent auditors’ customary comfort letters providing reasonable access by Parent and assistance any Debt Financing sources, and their respective officers, employees, consultants and advisors (including legal, valuation, and accounting advisors) to the books and records, properties, officers, directors, agents and representatives of the Company and its subsidiaries, (vii) assisting with the accounting due diligence activities of relating to the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
Company’s financial information, (viii) providing documents furnishing to Parent and its Debt Financing sources all pertinent and customary financial and other information regarding the Company and its subsidiaries reasonably requested by AbbVie or Parent as promptly as practicable following such request to consummate the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected therebyDebt Financing, including customary payoff letters all historical financial statements and (to historical financial data regarding the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtednessCompany and its subsidiaries, in each case (A) that is required by the Securities Act (including Regulations S-K and S-X thereunder and other accounting rules and regulations of the SEC) for inclusion in accordance a registration statement to be filed with the terms SEC with respect to debt securities of Parent (other than Rule 3-09, Rule 3-10 or Rule 3-16 of Regulation S-X, Rule 4.02(b) of Regulation S-K and other customary exceptions), (B) that is otherwise customarily included in private placement memoranda relating to private placements under Rule 144A of the definitive documents governing Securities Act and bank information memoranda, in each case of the type contemplated by the Debt Financing, and (C) as is otherwise necessary in order to assist in receiving customary “comfort” (including as to “negative assurance” comfort and change period) from the Company’s independent accountants in connection with offerings of debt securities, in each case at the time during the Company’s fiscal year such indebtedness offerings will be made (provided that any all such notice or payoff letter shall be expressly conditioned on information described in clauses (A) through (C) this clause (viii), the Completion“Required Financial Information”);
, (ix) procuring taking all actions reasonably requested to (A) permit the prospective lenders involved in the Debt Financing to evaluate the Company’s and its subsidiaries’ assets, cash management and accounting systems, policies and procedures relating thereto, including inventory appraisals and field audits, for the purpose of establishing collateral arrangements and (B) establish bank and other accounts and blocked account contracts and lock box arrangements in connection with the foregoing after the Acceptance Time, (x) providing at least 4 Business Days prior to the Acceptance Time all documentation and other information about the Company and its subsidiaries required by applicable “know your customer” and anti-money laundering rules and regulations including the USA Patriot Act to the extent requested at least 8 calendar days prior to the anticipated Acceptance Time, and (xi) subject to the occurrence of the Acceptance Time, taking all corporate actions necessary to permit consummation of the Debt Financing; provided, that nothing herein shall require (1) such cooperation to the extent it would interfere materially and unreasonably with the business or operations of the Company or its subsidiaries, (2) delivery of (A) any other financial information in a form not customarily prepared by the Company or (B) any financial information with respect to a fiscal period that has not yet ended, or (C) any financial statement with respect to any fiscal quarter (other than the fourth quarter) prior to the date that is 40 days after the end of the applicable fiscal quarter, or (D) any financial statement with respect to a fiscal year prior to the date that is 60 days after the end of the applicable fiscal year, or (E) any unaudited financial statement in respect of any period ended December 31, 2013, unless, except in the case of clauses (A) and (E), such information is earlier reasonably available to Company and reasonably requested by Parent, (3) delivery of any certificate as to solvency or any legal opinions, or (4) the taking of any action that would conflict with or violate (x) the Company’s Restated Certificate of Incorporation or By-laws, in each case that are not contingent upon the earlier of the Acceptance Time and the Effective Time or (y) any applicable Laws. The Company hereby consents to the reasonable use of all of Allergan’s its and its subsidiaries’ logos in connection with the Financing (Debt Financing; provided that such logos are used solely in a manner that is not intended to and is not or reasonably likely to harm or disparage Allergan the Company or any of its Subsidiaries or the reputation or goodwill of Allergan the Company or any of its Subsidiaries); andSubsidiaries or any of their logos and on such other customary terms and conditions as the Company shall reasonably impose. If the Company at any time in good faith reasonably believes that it has delivered the Required Financial Information to Parent, it may deliver to Parent a written notice to such effect, in which case the Company shall be deemed to have delivered the Required Financial Information at the time of delivery of such notice, unless Parent shall provide to the Company within four Business Days after the delivery of such notice a written notice that describes with reasonable specificity the information that constitutes Required Financial Information that Parent in good faith reasonably believes the Company has not delivered.
(xb) providing at least three Notwithstanding anything in this Section 6.10 to the contrary, neither the Company nor any of its subsidiaries shall be required to (3i) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as bear any out-of-pocket cost or expense that is reasonably requested in writing by AbbVie at least ten (10not reimbursed pursuant to this Section 6.10(b) Business Days in advance of the Completion Date or pay any fee in connection with the Financing that relates to applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Notwithstanding anything to the contrary in this Section 7.9(a) or Section 7.9(b) belowDebt Financing, (Aii) none of Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are or cause their respective directors, officers or employees to be promptly reimbursed by AbbVie upon request by Allergan pursuant incur any liability) under the Debt Financing prior to Section 7.9(c)), the Effective Time or (iiiii) execute enter into any agreement or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case commitment that would be effective prior to the Completion Date or would be effective if the Completion does not occur Effective Time (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and other than such management representation letters delivered pursuant and authorization letters with respect to information memoranda, authorizing the distribution of information to prospective lenders and containing customary representations that such information does not contain a material misstatement or omission, and that the public-side versions of such documents, if any, do not include material non-public information with respect to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan Company or any of its Subsidiaries reasonably determines would jeopardize subsidiaries or their securities for purposes of United States federal securities laws, and other than consents of accountants for use of their reports in any attorneymaterials relating to the matters described above). Furthermore, Parent shall, promptly upon request by the Company, reimburse the Company for all reasonable and documented out-client privilege of Allergan of-pocket costs and expenses incurred by the Company, its subsidiaries and its and their respective representatives in connection with their respective obligations pursuant to this Section 6.10. Parent shall indemnify and hold harmless the Company, its subsidiaries and its and their respective representatives from and against any and all losses, damages, claims, costs or expenses suffered or incurred by any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, them in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, Debt Financing and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan any information utilized in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence than any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided in writing specifically for use by or on behalf of Allergan the Company or any of its Subsidiaries or Representatives pursuant subsidiaries), in each case other than to this Section 7.9 to be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained in connection with syndication extent any of the Financing will be in foregoing arises from the bad faith, gross negligence or willful misconduct of, or breach of this Agreement by, the Company or any of its subsidiaries or their respective affiliates, officers, directors, employees, accountants, agents or representatives.
(c) The Company shall deliver to Acquisition Sub on or prior to the Acceptance Time, a form payoff letter with respect to the Credit Agreement, dated as of June 27, 2011, by and among the Company, the lenders party thereto and JPMorgan Chase Bank, N.A., as administrative agent (as amended, supplemented, or otherwise modified from time to time), which payoff letter shall substantially provide (subject to customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover Rules.exceptions)
Appears in 2 contracts
Samples: Merger Agreement (Valassis Communications Inc), Merger Agreement (Harland Clarke Holdings Corp)
Financing Cooperation. (a) Until Prior to the earlier of Closing, the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan shall use its reasonable best efforts, and shall cause each of its Subsidiaries to use its reasonable best effortsCompany Entities shall, and shall use its their respective reasonable best efforts to cause its and their respective officersRepresentatives to, employees and advisors and other Representatives, including legal and accounting advisors, to use their provide such reasonable best efforts, to provide to AbbVie and its Subsidiaries such assistance cooperation as may be reasonably requested by AbbVie in writing that is customary the Parent Entities in connection with the arranging, obtaining and syndication arranging of the Debt Financing and the Preferred Equity Financing. Without limiting the generality of the foregoing, including using such reasonable best efforts with respect toin any event shall include:
(i) participating in taking such actions as are reasonably requested by the Parent Entities to facilitate the satisfaction on a timely basis of all conditions precedent to obtaining the Debt Financing and assisting with the due diligence, syndication or other marketing of the FinancingPreferred Equity Financing that are within its control, including using reasonable best efforts with respect authorizing the Definitive Financing Agreements and permitting the proceeds thereof to be made available to the Company Entities, the Company Subsidiaries and certain of their respective equityholders at the Closing, as applicable, pursuant to the Restructuring Steps, as applicable; provided that no such corporate action shall become effective until the Effective Time;
(Aii) the participation by members of management of Allergan with appropriate seniority participating in a reasonable number of meetingsmeetings (including meetings with prospective Debt Financing Sources), presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at reasonable and mutually agreed times and at locations with reasonable advance notice;
(iii) to the extent required to satisfy a condition precedent to the initial funding of the Debt Financing, facilitating the pledging of, and perfection of security interests in, collateral, effective no earlier than the Effective Time;
(iv) furnishing the Parent Entities and the Debt Financing Sources and the Preferred Equity Financing Sources as promptly as reasonably acceptable practicable following the delivery of a request therefor to Allergan the Company Entities by the Parent Entities (which notice shall state with specificity the information requested) such financial and upon reasonable notice, (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank other information memoranda, prospectuses, rating agency presentations regarding the Company Entities and similar documents the Company Subsidiaries as is customarily required in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting execution of financings of a type similar to the inclusion Debt Financing or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable typePreferred Equity Financing, including all Historical the Company Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the FinancingInformation;
(v) obtaining in each case following the consents Parent Entities’ reasonable request, assisting the Parent Entities and the Merger Subs in the preparation of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan (A) confidential information memoranda (including a version that does not include material non-public information) and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used other customary marketing materials required in connection with financings similar to the FinancingDebt Financing (it being understood and agreed that the Company Entities shall not be responsible for any projections or pro forma financial statements) and (B) materials for rating agency presentations;
(vi) obtaining Allergan’s independent auditors’ providing (A) customary comfort authorization and representation letters and assistance to the Debt Financing Sources with the accounting due diligence activities respect to marketing materials from a senior officer of the Financing SourcesCompany Entities (which authorization and representation letters will become effective before the Effective Time) and (B) a certificate of the chief financial officer of the Company in the form set forth on Annex I to Exhibit D of the Debt Commitment Letter (as in effect on the date hereof) or Xxxxx XX of the Preferred Equity Commitment Letter (as in effect as of the date hereof) with respect to solvency matters, in each case, to the extent required in the Debt Commitment Letter or Preferred Equity Commitment Letter, respectively;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably if requested by AbbVie the Parent Entities pursuant to the Debt Commitment Letter or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees Preferred Equity Commitment Letter, providing (if anyA) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of prior to the Completion Date such Closing Date, all documentation and other information about Allergan regarding the Company Entities and its the Company Subsidiaries as the Debt Financing Sources or Preferred Equity Financing Sources reasonably determine is reasonably requested in writing required by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to United States regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitationlimitation the PATRIOT Act, to the extent requested by the Parent Entities in writing at least nine Business Days prior to the anticipated Closing Date and (B) to the extent the Borrower (as defined in the Debt Commitment Letter) or the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation (as defined in the Debt Commitment Letter on the date hereof), certification regarding beneficial ownership as required by 31 C.F.R. §1010.230 to any Debt Financing Source or the Preferred Equity Financing Source that has requested such certification;
(viii) assisting reasonably in the preparation, execution and delivery of necessary and customary Definitive Financing Agreements (including one or more credit agreements, security agreements, mortgages or guarantees and the schedules and exhibits thereto) in connection with the Debt Financing or the Preferred Equity Financing or other certificates or documents as may reasonably be requested by the Parent Entities, in each case, to be held in escrow pending release by the Company at, and subject to the occurrence of, the USA PATRIOT ACT. Notwithstanding anything Effective Time;
(ix) to the contrary extent required in the Debt Commitment Letter, using reasonable best efforts to ensure that the syndication efforts with respect to the Debt Financing benefit materially from the existing lending and investment banking relationships of the Company Entities; and
(x) in connection with the Margin Loan Financing, cooperating in requesting from TKO and TKO OpCo an issuer agreement (an “Issuer Agreement”) with the applicable lenders on customary terms to be mutually agreed by TKO, TKO OpCo and such lenders in order to allow a Margin Loan Financing on commercially reasonable terms, it being understood and agreed that (x) such cooperation shall not (A) unreasonably interfere with the ongoing operations of the Company Entities or any of their respective Affiliates or (B) require TKO to make any “additional” filings with the SEC or take any other action that would result in such a filing being required, except, after consultation between the Parent Entities and the Company Entities, the furnishing on Current Reports on Form 8-K by TKO of information included in the documents with respect to such Debt Financing to the extent required in order to satisfy TKO’s legal or regulatory disclosure obligations, and (y) the provisions set forth in this Section 7.9(a7.12(a) collectively represent the sole obligation of the Company Entities and their respective Affiliates with respect to the Debt Financing or the Preferred Equity Financing and no other provision of this Agreement (including the exhibits and schedules hereto) or the Debt Commitment Letter or the Preferred Equity Commitment Letter will be deemed to expand such obligations. All non-public or otherwise confidential information regarding the Company Entities or their respective Affiliates obtained by the Parent Entities or the Merger Subs or their respective Representatives pursuant to this Section 7.9(b7.12 shall be kept confidential in accordance with the Confidentiality Agreement, including any joinder or other agreement entered into in connection therewith (which, with respect to the potential Debt Financing Sources who are not party to the Debt Commitment Letter but are participating in the syndication process, shall be satisfied by the confidentiality provisions applicable under customary confidentiality undertakings in the context of customary syndication practices for debt financings of the type contemplated by the Debt Commitment Letter (as in effect on the date hereof)). The Company Entities hereby consent to the use of their respective and the Company Subsidiaries’ logos in connection with the Debt Financing or the Preferred Equity Financing; provided, that such logos are used solely in a manner that is reasonable and customary and that is not reasonably likely to harm or disparage the Company Entities or the Company Subsidiaries in any respect.
(b) belowNotwithstanding anything herein to the contrary, (Ai) none other than as may be contemplated by an Issuer Agreement, no directors or managers of Allergan nor the Company Entities or their respective Affiliates (other than any director or manager who is continuing as a director or manager of any of its the Company Entities or the Company Subsidiaries following the consummation of the Transactions) shall be required to take pass resolutions or permit consents to approve or authorize the taking execution or delivery of the Debt Financing or the Preferred Equity Financing or to execute, deliver or enter into, or perform any action agreement, certificate, arrangement, document or instrument with respect to the Debt Financing (other than the documents to be delivered pursuant to this Section 7.9(aSections 7.12(a)(vi) and 7.14, including definitive agreements with respect to the Debt Financing (the “Definitive Financing Agreements”)) or the Preferred Equity Financing, (ii) no obligation of the Company Entities, their respective Affiliates or any of their respective Representatives undertaken pursuant to the foregoing shall be effective until Closing (other than the authorization and representation letters to be delivered pursuant to Section 7.9(b7.12(a)(vi)(A) below and the prepayment and termination notices to be delivered pursuant to Section 7.14) and (iii) none of the Company Entities, their respective Affiliates or any of their respective Representatives shall be required to (iA) pay any commitment or other similar fee in connection with the Debt Financing or the Preferred Equity Financing or incur any liability (other than third-party costs and expenses cost or expense that are to be is not promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c))the Parent Entities in connection with the Debt Financing or the Preferred Equity Financing, (iiB) execute take any actions to the extent such actions would unreasonably interfere with the ongoing business or deliver operations of the Company Entities and their respective Affiliates, (C) take any definitive financing actions that would conflict with or violate the Company Entities’ or their respective Affiliates’ organizational documents or any other agreement, certificate, document or instrumentLaws, or agree that would reasonably be expected to result in a violation or breach of, or default under, any material Contract to which any of them are a party or by which any of their assets are bound, (D) give to any change to or modification of other Person any existing agreement, certificate, document or instrument, indemnities in each case connection with the Financing that would be are effective prior to the Completion Date Closing or would be effective if the Completion does not occur (except (xE) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof take any actions that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or that would cause any closing condition set forth in Article VIII to fail to be satisfied or that would otherwise cause a breach of this Agreement. Nothing contained in this Section 7.12 or otherwise shall require the Company Entities or their respective Affiliates to be an issuer or other obligor with respect to the Debt Financing or the Preferred Equity Financing prior to the Effective Time.
(c) The Parent Entities and the Merger Subs acknowledge and agree that the only obligations of the Company or any of its Affiliates or Representatives with respect to any portion of the Financing prior to the Effective Time are the obligations expressly set forth in this Agreement. The Parent Entities shall, promptly upon request by the Company, reimburse OpCo and the Company Subsidiaries for all out-of-pocket costs and expenses incurred by the Company Entities and the Company Subsidiaries, their respective Affiliates or their respective Representatives in connection with such cooperation by the Company Entities or any of their respective Affiliates and shall indemnify and hold harmless the Company Entities, their respective Affiliates and their respective Representatives for and against any and all liabilities, losses, obligations, damages, costs and expenses of any kind (unless waived whether direct or indirect, known or unknown, asserted or unasserted, absolute or contingent, accrued or unaccrued, liquidated or unliquidated, due or to become due and whether in contract, tort, strict liability or otherwise) suffered or incurred by AbbViethem in connection with the arrangement of any Financing, any alternative financing, any action taken by them pursuant to this Section 7.12 and any information utilized in connection therewith (other than written information provided by the Company Entities to the Parent Entities or the Merger Subs for use in connection with the Debt Financing or the Preferred Equity Financing), except to the extent resulting from the gross negligence, fraud or willful misconduct of the Company Entities or the Company Subsidiaries or their respective Representatives.
(d) Each of the Parent Entities and the Merger Subs acknowledge and agree that it is not a condition to the Closing or to any of the other obligations under this Agreement that the Parent Entities and Merger Subs obtain the Equity Financing, any Financing or any other financing.
(e) Notwithstanding anything to the contrary in this Section 7.12 or any other provision of this Agreement, the condition set forth in Section 8.02(b), as it applies to the obligations of the Company Entities under this Section 7.12, will be deemed to be satisfied except in the case where (i) any Company Entity materially breaches its obligations under this Section 7.12, (ii) the Parent Entities have provided the Company prompt written notice informing the Company of such breach, (iii) cause any directorif curable, officer or employee or shareholder the Company Entities have not cured such breach by the earlier of Allergan or any (A) 60 days after the date of its Subsidiaries such written notice is given by the Parent Entitles to incur any personal liability or the Company and (B) the Outside Date and (iv) result such breach has contributed in a material violation or breach of, or a default under, any material Contract respect to which Allergan the failure of the Debt Financing or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan or any of its Subsidiaries or Representatives pursuant to this Section 7.9 Preferred Equity Financing to be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained in connection with syndication of the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover Rulesobtained.
Appears in 2 contracts
Samples: Merger Agreement (Endeavor Group Holdings, Inc.), Merger Agreement (Emanuel Ariel)
Financing Cooperation. (a) Until the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance Consistent with Article 9applicable Laws, Allergan VEREIT shall use its reasonable best effortsefforts to, and shall cause its Subsidiaries and each of its Subsidiaries and its Subsidiaries’ respective officers and employees to use its reasonable best efforts, and shall use its reasonable best efforts to cause its and their respective officersto, employees and advisors and other Representatives, including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie Realty Income and its Subsidiaries such assistance Subsidiaries, at Realty Income’s sole expense, all cooperation as may be reasonably requested by AbbVie in writing by Realty Income that is customary necessary in connection with (i) the Realty Income Credit Agreement Amendment and the Realty Income PPN Amendment, (ii) the arranging, obtaining and syndication of the OfficeCo Debt Financing (as defined in Exhibit A)and (iii) one or more equity or debt offerings of Realty Income, that Realty Income and its Subsidiaries may pursue prior to the Effective Time (any such transaction in clause (ii) or (iii) a “Financing”), including, without limitation, in the event such action is customary in connection with the applicable Financing, including using reasonable best efforts with respect to:
: (i) participating in and assisting cooperate with the due diligence, syndication or other customary marketing of the efforts relating to such Financing, including using reasonable best efforts with respect to assisting in the preparation of customary confidential information memoranda, private placement memoranda, lender presentations, prospectuses, offering memoranda and other customary offering documents and marketing materials; (Aii) assist in the participation by members preparation of management of Allergan with appropriate seniority rating agency presentations and participate in a reasonable number of meetingsmeetings with rating agencies, presentations, road shows, drafting sessionsroadshows, due diligence sessions, drafting sessions and sessions meetings with prospective lenderslenders and debt and equity investors, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, by audio or videoconference at such times as applicable, subject to customary confidentiality provisions and disclaimers);
coordinated reasonably in advance thereof at mutually agreed times; (iiiii) timely furnishing AbbVie and its Financing Sources with historical financial deliver documentation and other customary information (collectively, the “reasonably requested by sources of such Financing Information”) as promptly as reasonably practicable with respect to Allergan (x) applicable “know-your-customer”, FINCEN and anti-money laundering rules and regulations, including the PATRIOT Act and (y) the U.S. Treasury Department’s Office of Foreign Assets Control and the Foreign Corrupt Practices Act, in each case, to the extent such information is required pursuant to the applicable Financing; (iv) deliver as promptly as reasonably practicable all financial information and real property and other diligence materials related to VEREIT and its Subsidiaries as customary or reasonably necessary for the completion of such Financing; (v) direct VEREIT’s independent auditors to cooperate with Financing that is reasonably requested by AbbVie or its a securities offering consistent with their customary practice, including requesting VEREIT’s independent accountants to prepare and deliver customary comfort letters (it being understood that such customary comfort letters shall include a SAS 100 review of any interim financial statements and “negative assurance” comfort covering any “stub” period) if customary for such Financing, in connection with any Financing Sources and customarily required in Marketing Material for Financings of to the applicable typeunderwriters, including all Historical Financial Statements arrangers, initial purchasers or placement agents thereof in each case, on customary terms and other consistent with the customary practice of such independent accountants; (vi) assist with the preparation of pro forma financial information and pro forma financial statements solely with respect to Allergan and its Subsidiaries (A) VEREIT to the extent customary or reasonably necessary for the completion of the Financing, including, if applicable, of the type that would be required by Regulation S-X and Regulation S-K promulgated under the Securities Act if for a public offering of securities of Realty Income and for Realty Income’s preparation of pro forma financial statements; (vii) assist in the Financing were incurred by AbbVie preparation of customary projections, estimates and registered on Form S-3 under other forward looking financial information regarding the Securities Act, including audit reports future performance of annual financial statements VEREIT to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), customary or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings the completion of the applicable type;
Financing; and (iiiviii) providing to AbbVie’s the execution and delivery of such definitive financing documents, including certificates, credit agreements, note purchase agreements, dealer manager agreements, solicitation agent agreements, authorization letters, guarantees, schedules, legal counsel and its independent auditors such customary documents opinions and other customary information relating to Allergan and its Subsidiaries documents, as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating necessary to the facilitate such Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with form and substance reasonably satisfactory to the terms of the definitive documents governing party executing such indebtedness (document; provided that any such notice or payoff letter documents referred to in this clause (viii) shall be expressly conditioned effective no earlier than the Effective Time (other than any authorization letters that are required to be given in advance of such time in order for the Financing to be consummated on or after the CompletionEffective Time);
(ix) procuring . VEREIT hereby consents to the reasonable use of all of Allergan’s its and its Subsidiaries’ logos in connection with the Financing (any Financing; provided that such logos are used solely in a manner that is not intended to and or is not reasonably likely to harm or disparage Allergan VEREIT or its Subsidiaries or the reputation or goodwill of Allergan such party or its Subsidiaries. Notwithstanding any other provision set forth herein or in any other agreement between Realty Income and VEREIT or its affiliates, the parties hereto agree that Realty Income may share with the sources of such Financing customary projections and other confidential information with respect to VEREIT (including information about VEREIT’s Subsidiaries) after giving effect to the Merger and the transactions contemplated hereby that the parties have cooperated in preparing, and that Realty Income, its Subsidiaries and such sources of Financing may share information about VEREIT and its Subsidiaries (notwithstanding anything to the contrary herein or in the Confidentiality Agreement) with potential sources of the Financing in connection with any marketing efforts in connection with the Financing, provided that the recipients of such information agree to customary confidentiality arrangements in form and substance reasonably acceptable to VEREIT.
(b) During the period from the date of this Agreement and the earlier to occur of the Effective Time and the date, if any, on which this Agreement is terminated pursuant to Section 7.1 (the “Interim Period”), Realty Income or one or more of its Subsidiaries may (i) commence any of the following: (A) one or more offers to purchase (including any “change of control offer” under the VEREIT Notes Indenture and/or the notes issued thereunder) any or all of the outstanding debt issued under the VEREIT Notes Indenture for cash (collectively, the “Offers to Purchase”); or (B) one or more offers to exchange any or all of the outstanding debt issued under the VEREIT Notes Indenture for securities issued by the Realty Income or any of its affiliates (the “Offers to Exchange”); and (ii) solicit the consent of the holders of debt issued under the VEREIT Notes Indenture regarding certain proposed amendments thereto (the “Consent Solicitations” and, together with the Offers to Purchase and Offers to Exchange, if any, the “Note Offers and Consent Solicitations”); provided that any such notice or offer shall expressly reflect that, and it shall be the case that, the closing of any such transaction shall not be consummated until the Effective Time. Any Note Offers and Consent Solicitations shall be made on such terms and conditions (including price to be paid and conditionality) as are proposed by Realty Income and which are permitted by the terms of the VEREIT Notes Indenture and applicable Laws, including SEC rules and regulations. Realty Income shall consult with VEREIT regarding the material terms and conditions of any Note Offers and Consent Solicitations, including the timing and commencement of any Note Offers and Consent Solicitations and any tender deadlines. Realty Income shall have provided VEREIT with the necessary offer to purchase, offer to exchange, consent solicitation statement, letter of transmittal, press release, if any, in connection therewith, and each other document relevant to the transaction that will be distributed by Realty Income in the applicable Note Offers and Consent Solicitations (collectively, the “Debt Offer Documents”) a reasonable period of time in advance of commencing the applicable Note Offers and Consent Solicitations to allow VEREIT and its counsel to review and comment on such Debt Offer Documents, and Realty Income shall give reasonable and good faith consideration to any comments made or input provided by VEREIT and its legal counsel. Subject to the receipt of the requisite holder consents, in connection with any or all of the Consent Solicitations (including for the avoidance of doubt any other liability management transaction hereunder that includes a Consent Solicitation), VEREIT shall execute a supplemental indenture to the VEREIT Notes Indenture in accordance with the terms thereof amending the terms and provisions thereof as described in the applicable Debt Offer Documents in a form as reasonably requested by Realty Income (the “Supplemental Indenture”); provided that the amendments effected by such supplemental indenture shall not become operative until the Effective Time. During the Interim Period, at Realty Income’s sole expense, VEREIT shall and shall cause its Subsidiaries to, and shall cause its and their Representatives to, provide all cooperation reasonably requested by Realty Income to assist Realty Income in connection with any Note Offers and Consent Solicitations (including using reasonable best efforts to direct VEREIT’s independent accountants to provide customary consents for use of their reports to the extent required in connection with any Note Offers and Consent Solicitations). The dealer manager, solicitation agent, information agent, depositary or other agent retained in connection with any Note Offers and Consent Solicitations will be selected and retained by Realty Income. If, at any time prior to the completion of the Note Offers and Consent Solicitations, VEREIT or any of its Subsidiaries); and, on the one hand, or Realty Income or any of its Subsidiaries, on the other hand, discovers any information that should be set forth in an amendment or supplement to the Debt Offer Documents, so that the Debt Offer Documents shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of circumstances under which they are made, not misleading, such party that discovers such information shall use reasonable best efforts to promptly notify the other party, and an appropriate amendment or supplement prepared by Realty Income describing such information shall be disseminated to the holders of the notes outstanding under the VEREIT Notes Indenture.
(xc) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan Realty Income shall promptly, upon request by VEREIT, reimburse VEREIT and its Subsidiaries as is reasonably requested in writing for all reasonable and documented out-of-pocket costs and expenses paid to third parties (including advisor’s fees and expenses) incurred by AbbVie at least ten (10) Business Days in advance of the Completion Date VEREIT and its Subsidiaries in connection with the Financing that relates cooperation provided pursuant to applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Notwithstanding anything to the contrary in this Section 7.9(a5.14 and indemnify and hold harmless VEREIT, its Subsidiaries and their respective officers, directors and other Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties (collectively, “Losses”) suffered or incurred by them in connection with any Financing, any information utilized in connection therewith or any action taken by VEREIT or any Subsidiary of VEREIT pursuant to this Section 7.9(b5.14, in each case, whether or not the Merger is consummated or this Agreement is terminated; provided, however, that the foregoing indemnity shall not apply with respect to any Losses resulting from any gross negligence or willful misconduct of VEREIT or its Subsidiaries or Representatives or a Willful Breach of VEREIT or any Subsidiary of VEREIT under this Agreement.
(d) belowNotwithstanding the requirements of Section 5.14(a), (A) none of Allergan neither VEREIT nor any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to 5.14 that (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) unreasonably interfere unreasonably with the business or operations of Allergan VEREIT or its Subsidiaries, (ii) would require VEREIT, its Subsidiaries or any Persons who are directors or officers of VEREIT or its Subsidiaries to pass resolutions or consents to approve or authorize the execution of any Financing or any Note Offers or Consent Solicitations or execute or deliver any certificate, document, instrument or agreement or agree to any change or modification of any existing certificate, document, instrument or agreement, in each case, that is effective prior to the Effective Time, or that would be effective if the Effective Time does not occur (other than (x) authorization letters contemplated by Section 5.14(a)(viii) and (y) to the extent required to be executed or delivered prior to the Effective Time pursuant to Section 5.14(a)), (iii) would cause any representation or warranty in this Agreement to be breached by Allergan VEREIT or any of its Subsidiaries, (iv) would require VEREIT or any of its Subsidiaries (unless waived by AbbVie)to pay any commitment or other similar fee prior to the Effective Time or incur any other expense, liability or obligation in connection with any Financing or any Note Offers and Consent Solicitations prior to the Effective Time, or have any obligation of VEREIT or any of its Subsidiaries under any agreement, certificate, document or instrument be effective until the Effective Time, (iiiv) could reasonably be expected to cause any director, officer or employee or shareholder stockholder of Allergan VEREIT or any of its Subsidiaries to incur any personal liability liability, (vi) could reasonably be expected to conflict with the organizational documents of VEREIT or its Subsidiaries or any Laws, (ivvii) could reasonably be expected to result in a material violation or breach of, or a default (with or without notice, lapse of time, or both) under, any material Contract contract to which Allergan VEREIT or any of its Subsidiaries is a party, (viii) would require providing access to or disclosing information that would reasonably be expected to jeopardize any attorney-client privilege of VEREIT or any of its Subsidiaries, (ix) would require delivering or causing to be delivered any opinion of counsel in connection with any Financing or any Note Offers or Consent Solicitations (other than to the Organizational Documents extent required by Section 5.14(b) in connection with the entry into a Supplemental Indenture, an opinion of Allergan counsel if the trustee under the VEREIT Notes Indenture requires an opinion of counsel to VEREIT) or (x) could reasonably be expected to cause VEREIT to fail to qualify as a REIT for federal income tax purposes (including by reason of potential payments under Section 5.14(c) from such action).
(e) Upon the request of Realty Income, VEREIT shall use reasonable best efforts to, and cause its Subsidiaries or and each of its and its Subsidiaries’ respective officers and employees to use commercially reasonable efforts to, facilitate the payoff of the VEREIT Credit Agreement, including obtaining a customary payoff letter in connection therewith (the “Credit Agreement Payoff”); provided that any applicable Law. AbbVie such action described above shall cause all non-public or other confidential information provided not be required unless it can be and is conditioned on the occurrence of the Closing.
(f) For the avoidance of doubt, the parties hereto acknowledge and agree that the provisions contained in this Section 5.14 represent the sole obligation of VEREIT, its Subsidiaries and their respective Representatives with respect to cooperation in connection with the arrangement of any Financing to be obtained by or on behalf of Allergan Realty Income or any of its Subsidiaries and OfficeCo with respect to the transactions contemplated by this Agreement and no other provision of this Agreement (including the Exhibits and Schedules hereto) shall be deemed to expand or Representatives pursuant modify such obligations. Notwithstanding the foregoing, it is expressly understood and agreed that the parties’ obligation to consummate the Merger and the transactions contemplated hereby are not contingent upon the completion of any Financing, any Note Offers or Consent Solicitations or the Credit Agreement Payoff. Notwithstanding anything to the contrary in this Agreement (including the Exhibits and Schedule hereto), any breach by VEREIT of any of the covenants required to be performed by it under this Section 7.9 to 5.14 shall not be kept confidential considered in accordance with determining the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained in connection with syndication satisfaction of the Financing will be condition set forth in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover RulesSection 6.3(b).
Appears in 2 contracts
Samples: Merger Agreement (Realty Income Corp), Merger Agreement (VEREIT Operating Partnership, L.P.)
Financing Cooperation. (a) Until From the date hereof until the Closing (or the earlier of the Completion and the valid termination of this Agreement pursuant to and Section 8.01), subject to the limitations set forth in accordance with Article 9, Allergan shall use its reasonable best effortsthis Section 5.05, and shall cause each of its Subsidiaries to use its reasonable best effortsunless otherwise agreed by Parent, and shall the Company will use its reasonable best efforts to cause cooperate with Parent and its and their respective officersAffiliates as reasonably requested by Parent in connection with Parent’s arrangement of the Financing (which, employees and advisors and other Representativessolely for purposes of this Section 5.05, including legal and accounting advisors, to use their shall include any alternative equity or debt capital markets financings contemplated by the Debt Letters). Such cooperation will include using reasonable best effortsefforts to:
(i) make appropriate officers reasonably available, to provide to AbbVie with appropriate advance notice, for participation in bank meetings, due diligence sessions, meetings with ratings agencies and its Subsidiaries such road shows, reasonable assistance in the preparation of confidential information memoranda, private placement memoranda, prospectuses, presentations and similar documents as may be reasonably requested by AbbVie in writing that is customary in connection with the arrangingParent or any Financing Party, obtaining and syndication of the Financing, including using reasonable best efforts with respect to:
(i) participating in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject with respect to information relating to the Company and its Subsidiaries in connection with customary confidentiality provisions marketing efforts of Parent and disclaimers)its Affiliates for all or any portion of the Financing;
(ii) timely furnishing AbbVie furnish Parent and its the Financing Sources Parties with historical copies of such financial and other customary information (collectively, the “Financing Information”) data with respect to Allergan the Company and its Subsidiaries which is prepared by the Company in the ordinary course of business or can be prepared by the Company without undue burden (with any cost thereof to be promptly reimbursed by Parent) as is reasonably requested by AbbVie Parent or its any Financing Sources Party and is customarily required in Marketing Material for Financings the arrangement and syndication of financings similar to the applicable typeFinancing committed pursuant to the Debt Letters, including all Historical Financial Statements and other customary such information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie allow Parent to prepare pro forma financial statements customary in accordance with Article 11 of Regulation S-X under the Securities Act of 1933, as amended, and identify any such financial information as suitable for Financings of the applicable typedistribution to “public side” lenders;
(iii) providing request that the Company’s independent accountants participate in drafting sessions and accounting due diligence sessions and cooperate with the Financing (including as set forth in the Debt Letters as in effect on the date of this Agreement) or in connection with a customary offering of securities, including the type described in the Commitment Letter, consistent with their customary practice, including requesting that they provide customary consents and comfort letters (including “negative assurance” comfort), including in respect of historical financial statements of the Company, to AbbVie’s the extent required in connection with the marketing and syndication of Financing (including as set forth in the Debt Letters as in effect on the date of this Agreement) or as are customarily required in an underwritten offering of securities of the type described in the Debt Letters, or as may otherwise be required pursuant to applicable Law or the rules or regulations of any national securities exchange in connection with the Merger or any alternative financing therefor, and provide customary management letters in connection with the foregoing;
(iv) furnish to legal counsel of Parent and its independent auditors to legal counsel of any Financing Party such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested by such counsel in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating legal opinion that such counsel may be required to the deliver in connection with such Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;; and
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan furnish Parent and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
Parties, within five (vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (35) Business Days in advance of the Completion Date following written request, such documentation and other information about Allergan and its Subsidiaries as any Financing Party may reasonably determine is reasonably requested in writing required by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitationlimitation the PATRIOT Act. provided, further, that nothing in this Agreement shall require the USA PATRIOT ACT. Company to cause the delivery of (1) legal opinions or reliance letters or any certificate as to solvency or any other certificate necessary for the Financing, other than as provided by Section 5.05(a)(iii), (2) any financial information for any period, including any audited financial information or any financial information prepared in accordance with Regulation S-K or Regulation S-X under the Securities Act of 1933, as amended, in any case in a form not customarily prepared by the Company with respect to such period, other than as provided by Section 5.05(a)(ii) or (3) any financial information with respect to a month or fiscal period that has not yet ended or has ended less than 40 days (or, in the case of a fiscal year, 60 days) prior to the date of such request.
(b) Notwithstanding anything to the contrary contained in this Section 7.9(a) or Section 7.9(b) below, Agreement (A) none of Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to including this Section 7.9(a) or Section 7.9(b) below to 5.05): (i) nothing in this Agreement (including this Section 5.05) shall require any such cooperation to the extent that it would (1) require the Company to pay any commitment or other fee fees, reimburse any expenses or otherwise incur any liability (other than third-party costs and expenses that are liabilities or give any indemnities prior to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c))the Closing, (ii2) execute unreasonably interfere with the ongoing business or deliver any definitive financing documents operations of the Company or the Company Subsidiaries, (3) require the Company or any of the Company Subsidiaries to enter into or approve any agreement or other agreement, certificate, document or instrument, documentation effective prior to the Closing or agree to any change to or modification of any existing agreement, certificate, document agreement or instrument, in each case other documentation that would be effective prior to the Completion Date Closing or would be effective if (4) require the Completion does not occur Company, any of the Company Subsidiaries or any of their respective boards of directors (except (xor equivalent bodies) to approve or authorize the extent required by Section 7.9(b)Financing, applicable Allergan Supplemental Indenturesand (ii) no action, liability or obligation (yincluding any obligation to pay any commitment or other fees or reimburse any expenses) customary officers’ certificates of the Company, its Subsidiaries, or any of their respective Representatives under any certificate, agreement, arrangement, document or instrument relating to the execution thereof that would not conflict with applicable Law Financing shall be effective until the Closing.
(c) Parent shall (i) promptly upon request by the Company, reimburse the Company for all of its fees and would be accurate in light expenses (including fees and expenses of counsel and accountants) incurred by the Company, any of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above)Company Subsidiaries, (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required any cooperation contemplated by this Section 7.9(b), Allergan shall, 5.05 and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause indemnify and hold harmless the Company, the Company Subsidiaries and its and their Representatives against any representation or warranty in this Agreement to be breached by Allergan or any claim, loss, damage, injury, liability, judgment, award, penalty, fine, Tax, cost (including cost of its Subsidiaries (unless waived by AbbVieinvestigation), expense (iiiincluding fees and expenses of counsel and accountants) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) settlement payment incurred as a result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained in connection with syndication of with, such cooperation or the Financing will be and any information used in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover Rulesconnection therewith.
Appears in 2 contracts
Samples: Merger Agreement (Empire District Electric Co), Merger Agreement (Algonquin Power & Utilities Corp.)
Financing Cooperation. (a) Until During the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan shall use its reasonable best efforts, and shall cause each of its Subsidiaries to use its reasonable best efforts, and shall use its reasonable best efforts to cause its and their respective officers, employees and advisors and other Representatives, including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie and its Subsidiaries such assistance as may be reasonably requested by AbbVie in writing that is customary in connection with the arranging, obtaining and syndication of the Financing, including using reasonable best efforts with respect to:
(i) participating in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectivelyInterim Period, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Notwithstanding anything to the contrary in this Section 7.9(a) or Section 7.9(b) below, (A) none of Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan Company shall, and shall cause its Subsidiaries to, use and shall cause its and their respective reasonable best efforts Representatives to, provide all cooperation reasonably requested by Parent in connection with financing arrangements (including assumptions, guarantees, amendments, supplements, modifications, refinancings, replacements, repayments, terminations or prepayments of the Company Debt Agreements) as Parent may reasonably determine necessary or advisable in connection with the completion of the Mergers or the other transactions contemplated hereby, including timely taking all corporate action reasonably necessary to cause authorize the execution and delivery of any documents to be entered into prior to Closing in respect of the Company Debt Agreements and delivering all officer’s certificates and legal opinions required to be delivered in connection thereof; provided that any arrangements, guarantees, amendments, supplements, modifications, refinancings, replacements, repayments, terminations, prepayments or other transactions or documents entered into pursuant to this Section 7.20(a) shall be effective at or immediately prior to the Partnership Merger Effective Time (other than any notices required to be given in advance of such time in order for any such information financing arrangements or documents to be disclosed in a manner effective at or immediately prior to the Partnership Merger Effective Time).
(b) During the Interim Period, Parent or one or more of its Subsidiaries may (i) commence any of the following: (A) one or more offers to purchase any or all of the outstanding debt issued under the Company Notes Indentures for cash (the “Offers to Purchase”); or (B) one or more offers to exchange any or all of the outstanding debt issued under the Company Notes Indentures for securities issued by the Partnership or any of its Affiliates (the “Offers to Exchange”); and (ii) solicit the consent of the holders of debt issued under the Company Notes Indentures regarding certain proposed amendments thereto (the “Consent Solicitations” and, together with the Offers to Purchase and Offers to Exchange, if any, the “Note Offers and Consent Solicitations”); provided that would not result in any such notice or offer shall expressly reflect that, and it shall be the loss case that, the closing of any such privilegetransaction shall not be consummated until the Closing and such transaction shall be funded using consideration provided by Parent or any of its Subsidiaries (or by the Company or any of the Company Subsidiaries if the payment thereof is to be made at or after the Closing). Any Note Offers and Consent Solicitations shall be made on such terms and conditions (including price to be paid and conditionality) as are proposed by Parent and which are permitted by the terms of the applicable Company Notes Indenture and applicable Laws, including SEC rules and regulations. Parent shall consult with the Company regarding the material terms and conditions of any Note Offers and Consent Solicitations, including the timing and commencement of any Note Offers and Consent Solicitations and any tender deadlines. Parent shall have provided the Company with the necessary offer to purchase, offer to exchange, consent solicitation statement, letter of transmittal, press release, if any, in connection therewith, and each other document relevant to the transaction that will be distributed by Parent in the applicable Note Offers and Consent Solicitations (ivcollectively, the “Debt Offer Documents”) deliver a reasonable period of time in advance of commencing the applicable Note Offers and Consent Solicitations to allow the Company and its counsel to review and comment on such Debt Offer Documents, and Parent shall give reasonable and good faith consideration to any comments made or cause input provided by the Company and its Representatives legal counsel. Subject to deliver any legal opinion or negative assurance letter (exceptthe receipt of the requisite holder consents, in connection with any or all of the entry into an Allergan Supplemental Indenture required Consent Solicitations, the Company shall execute a supplemental indenture to each of the Company Notes Indentures in accordance with the terms thereof amending the terms and provisions thereof as described in the applicable Debt Offer Documents in a form as reasonably requested by Section 7.9(b)Parent; provided that the amendments effected by such supplemental indentures shall not become operative until the Closing. During the Interim Period, Allergan shallat Parent’s sole expense, the Company shall and shall cause its Subsidiaries to, and shall use their respective reasonable best efforts to cause its and their Representatives to, provide all cooperation reasonably requested by Parent to assist Parent in connection with any Note Offers and Consent Solicitations (including using commercially reasonable efforts to cause the Company’s independent accountants to provide customary consents for use of their reports to the extent required in connection with any Note Offers and Consent Solicitations); provided that neither the Company nor counsel for the Company shall be required to Allergan furnish any certificates, legal opinions or its Subsidiariesnegative assurance letters in connection with any Note Offers and Consent Solicitations other than, as applicablein connection with the execution of (i) any supplemental indenture relating to the Consent Solicitations, with respect to which the Company shall (x) deliver a customary opinion of counsel officers’ certificates and (y) customary legal opinions to the trustee under the applicable Company Notes Indenture that in the Allergan Supplemental form required by the applicable Company Notes Indenture amends or (ii) any dealer manager agreement or other similar agreement, with respect to which the Company shall deliver customary legal opinions to the dealer manager or other similar agent in the form required by the applicable dealer manager agreement, but only if such trustee requires an opinion of counsel is required to Allergan be delivered at or prior to Closing, in connection therewith (provided that each case, to the extent such certificates and opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered))Laws. The dealer manager, (v) be an issuer solicitation agent, information agent, depositary or other obligor agent retained in connection with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare will be selected and retained by Parent. If, at any pro forma financial information or projections, (B) none time prior to the completion of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except Solicitations, the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan Company or any of its Subsidiaries (unless waived by AbbVie)Subsidiaries, (iii) cause any directoron the one hand, officer or employee or shareholder of Allergan Parent or any of its Subsidiaries Subsidiaries, on the other hand, discovers any information that should be set forth in an amendment or supplement to incur the Debt Offer Documents, so that the Debt Offer Documents shall not contain any personal liability or (iv) result in untrue statement of a material violation fact or breach of, or a default under, omit to state any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan or any of its Subsidiaries or Representatives pursuant to this Section 7.9 fact required to be kept confidential stated therein or necessary in accordance with order to make the Confidentiality Agreement; providedstatements therein, in light of circumstances under which they are made, not misleading, such party that Allergan acknowledges discovers such information shall use commercially reasonable efforts to promptly notify the other Party, and agrees that an appropriate amendment or supplement prepared by Parent describing such information shall be disseminated to the confidentiality undertakings that will be obtained in connection with syndication holders of the Financing will be in a form customary for use in notes outstanding under the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover RulesCompany Notes Indentures.
Appears in 2 contracts
Samples: Merger Agreement (DUKE REALTY LTD PARTNERSHIP/), Merger Agreement (Prologis, L.P.)
Financing Cooperation. (a) Until The Parties shall reasonably cooperate in good faith to implement such financing arrangements (including, without limitation, amendments, supplements, modifications, refinancings, replacements, repayments or prepayments of existing financing arrangements) as the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan shall use its reasonable best efforts, and shall cause each of its Subsidiaries to use its reasonable best efforts, and shall use its reasonable best efforts to cause its and their respective officers, employees and advisors and other Representatives, including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie and its Subsidiaries such assistance as Parties may be reasonably requested by AbbVie in writing that is customary determine necessary or advisable in connection with the arrangingcompletion of the Merger or other transactions contemplated hereby or with the financing of the Parties and their respective Subsidiaries and joint ventures (including the Surviving Entity and its Subsidiaries and joint ventures) following the effective time (the “Financing”), obtaining including reasonably cooperating with respect to: (i) participating in, and syndication of assisting with, marketing efforts relating to the Financing, including using reasonable best efforts with respect to:
(i) participating assisting in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documentsconfidential information memoranda, private placement memoranda, bank prospectuses, offering memoranda and other customary offering documents and marketing materials; (ii) assisting in the preparation of rating agency presentations and attending and participating in meetings with rating agencies, roadshows, due diligence sessions, drafting sessions and meetings with prospective lenders and debt investors, in each case, at such times as coordinated reasonably in advance thereof; (iii) delivery of documentation and other information reasonably requested by Financing Sources with respect to (x) applicable “know-your-customer” and anti-money laundering rules and regulations, including the PATRIOT Act and (y) the U.S. Treasury Department’s Office of Foreign Assets Control and the Foreign Corrupt Practices Act; (v) delivery of financial information customary or reasonably necessary for the completion of the Financing in connection with the preparation of customary confidential information memoranda, private placement memoranda, prospectuses, rating agency presentations offering memoranda and similar other customary offering or information documents required to be used for the Financing (which financial information, for the avoidance of doubt, may be included in any such confidential information memoranda, private placement memoranda, prospectuses, offering memoranda and other offering or information documents used for or distributed in connection with the Financing); (vi) directing their respective independent auditors to cooperate with the Financing consistent with their customary practice, including by providing customary “comfort letters” (collectively, including customary “Marketing Materialnegative assurances”) and customary assistance with due diligence sessions related theretoactivities, (C) delivering and consenting customary consents to the inclusion or incorporation of audit reports in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included relevant offering or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization lettersmarketing materials, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used filings, in each case, in connection with any proposed issuance and sale of securities; (vii) assisting with the preparation of pro forma financial information and pro forma financial statements; (viii) preparing customary projections, estimates and other forward looking financial information regarding the future performance of such party (and assisting in the preparation of such estimates and other forward looking financial information with respect to the consolidated business of Parent and its Subsidiaries after giving effect to the Merger and the Transactions); (ix) providing customary management representation letters to their respective accountants in relation to such accountants’ providing “comfort letters” in connection with any securities offering made as part of the Financing (“Representation Letters”); and (x) executing and delivering such definitive financing documents, including certificates, Representation Letters, and other documents as may be reasonably necessary to facilitate the Financing. Each Party hereby consents to the use of its and its Subsidiaries’ logos in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not or reasonably likely to harm or disparage Allergan such Party or its Subsidiaries or the reputation or goodwill of Allergan such Party or any of its Subsidiaries); and
. Notwithstanding any other provision set forth herein or in any other agreement between the Company and Parent or its affiliates, the Parties agree that the Parties may share with the Financing Sources customary projections with respect to Parent and its subsidiaries after giving effect to the Merger and the Transactions (x) providing at least three (3) Business Days in advance including, without limitation, with respect to the Company as part of the Completion Date such documentation and other information about Allergan consolidated business of Parent and its Subsidiaries as is reasonably requested (and not on a stand-alone basis)) that the Parties have cooperated in writing by AbbVie at least ten (10) Business Days preparing, and that the Parties, their affiliates and such Financing Sources may share such information with potential Financing Sources in advance of the Completion Date connection with any marketing efforts in connection with the Financing Financing, provided that relates the recipients of such information agree to applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, customary confidentiality agreements.
(b) Notwithstanding the USA PATRIOT ACT. Notwithstanding anything to the contrary in this requirements of Section 7.9(a) or Section 7.9(b) below7.14(a), (Ai) none of Allergan nor Parent, the Company, any of its their Subsidiaries nor their respective Representatives shall be required to take enter into any letter, certificate, document, agreement or permit instrument that will be effective prior to the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability Closing (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)Representation Letters), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, nothing in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (xSection 7.14(a) shall require cooperation contemplated thereby to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that it would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan Parent, the Company or its any of their respective Subsidiaries, and (iii) nothing in Section 7.14(a) shall require Parent or the Company to cause its legal counsel to deliver any legal opinions.
(c) Parent and the Company shall reasonably cooperate (i) to obtain customary payoff letters from the holders of any Indebtedness which the Parties reasonably determine to be necessary or advisable to repay in connection with the Merger and (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any make arrangements for such holders of its Subsidiaries (unless waived by AbbVie)Indebtedness to deliver to Parent, (iii) cause any directorsubject to the prior receipt of the applicable payoff amounts, officer or employee or shareholder releases of Allergan or any all related Liens and terminations of its Subsidiaries all related guarantees at, and subject to incur any personal liability or (iv) result in a material violation or breach the occurrence of, or a default underthe Closing.
(d) Notwithstanding the foregoing, any material Contract to which Allergan or any of its Subsidiaries it is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges expressly understood and agrees agreed that the confidentiality undertakings that will be obtained in connection with syndication Parties’ obligation to consummate the Merger and the Transactions are not subject to a financing condition or contingent upon the results of either Party’s efforts to obtain any or all of the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover RulesFinancing.
Appears in 2 contracts
Samples: Merger Agreement (Gramercy Property Trust Inc.), Merger Agreement (Chambers Street Properties)
Financing Cooperation. (a) Until the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan The Company shall use its reasonable best efforts, and shall cause each of its Subsidiaries to use its reasonable best efforts, and each of them shall use its their reasonable best efforts to cause its and their respective officers, employees and advisors and other Representatives, including legal and accounting advisors, Representatives to use their reasonable best efforts, to provide customary cooperation, to AbbVie and its Subsidiaries such assistance as may be the extent reasonably requested by AbbVie Parent in writing that is customary writing, in connection with the arrangingoffering, obtaining and syndication arrangement, syndication, consummation, issuance or sale of any Debt Financing or Alternative Financing obtained in accordance with Section 5.13 (provided, that such requested cooperation does not unreasonably interfere with the ongoing operations of the FinancingCompany or any of its Affiliates), including including, to the extent so requested, using reasonable best efforts with respect to:
(i) participating in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect furnish promptly to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection with Parent the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmationsInformation, and undertakings in connection with such other financial information regarding the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan Company and its Subsidiaries as is reasonably requested by AbbVie or Parent in connection with the Debt Financing;
(ii) assist Parent in its Financing Sources and customarily required in Marketing Material for Financings preparation of the applicable type, including all Historical Financial Statements and other customary pro forma financial information identified in clause (c) of paragraph 2 of Annex B of the Debt Commitment Letters with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable typeParent;
(iii) providing provide reasonable and customary assistance to AbbVie’s legal counsel Parent and its independent auditors such the Financing Parties in the preparation of (A) customary offering documents, offering memoranda, offering circulars, private placement memoranda, registration statements, prospectuses, syndication documents and other syndication materials, including information memoranda, lender and investor presentations, bank books and other marketing documents, and similar documents for any portion of the Debt Financing and (B) materials for rating agency presentations;
(iv) make senior management of the Company available, at reasonable times and locations and upon reasonable prior notice, to participate in meetings (including one-on-one conference or virtual calls with Financing Parties and potential Financing Parties), drafting sessions, presentations, road shows, rating agency presentations and due diligence sessions and other customary syndication activities, provided, at the Company’s option in consultation with Parent, any such meeting or communication may be conducted virtually by videoconference or other media;
(v) cause the Company’s independent registered accounting firm to provide customary assistance, including by using reasonable best efforts to cause the Company’s independent registered accounting firm to provide customary comfort letters (including “negative assurance” comfort, if customary and appropriate) in connection with any capital markets transaction comprising a part of the Debt Financing to the applicable Financing Parties and to participate in a reasonable number of due diligence sessions; provided, at the Company’s option, any such session may be conducted virtually by videoconference or other media, and including by using reasonable best efforts to provide customary representation letters to the extent required by such independent registered accounting firm in connection with the foregoing;
(vi) provide customary authorization letters authorizing the distribution of Company information relating to Allergan prospective lenders in connection with a syndicated bank financing;
(vii) assist in obtaining or updating corporate and its Subsidiaries facility credit ratings;
(viii) assist in the negotiation and preparation of any credit agreement, indenture, note, purchase agreement, underwriting agreement, guarantees and customary closing certificates, as may be reasonably requested by Parent, in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors each case as experts in any Marketing Material and registration statements and related government filings filed or used contemplated in connection with the Debt Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents make introductions of Parent to the reasonable use Company’s existing lenders and facilitate relevant coordination between Parent and such lenders;
(x) cooperate with internal and external counsel of all of Allergan’s logos Parent in connection with providing customary back-up certificates and factual information regarding any legal opinion that such counsel may be required to deliver in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); andDebt Financing;
(xxi) providing deliver, at least three (3) Business Days prior to Closing, to the extent reasonably requested in advance of the Completion Date such writing at least nine Business Days prior to Closing, all documentation and other information about Allergan regarding the Company and its Subsidiaries as that any Financing Party reasonably determines is reasonably requested in writing required by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Notwithstanding anything Patriot Act of 2001, and, to the contrary extent required by any Financing Party, a beneficial ownership certificate (substantially similar in this Section 7.9(aform and substance to the form of Certification Regarding Beneficial Owners of Legal Entity Customers published jointly, in May 2018, by the Loan Syndications and Trading Association and Securities Industry and Financial Markets Association) in respect of any of the Company or Section 7.9(bany of its Subsidiaries that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation (31 C.F.R. § 1010.230);
(xii) belowat Parent’s written request, cooperate with and use reasonable best efforts to provide all reasonable assistance to Parent in connection with any steps Parent may determine are necessary or desirable to take to (A) obtain consent for the Change of Control under and as defined in the Company Credit Agreement arising from consummation of the transactions contemplated by this Agreement, including facilitating and participating in communications with lenders under the Company Credit Agreement in relation to a Change of Control amendment request substantially in the form attached to the Debt Commitment Letters; provided that any such documentation prepared by the Company, its Subsidiaries and Representatives in connection with the foregoing shall be reasonably acceptable to Parent, and/or (B) prepay some or all amounts outstanding under the Company Credit Agreement, including (1) using reasonable best efforts to prepare and submit customary notices in respect of any such prepayment provided that such prepayment shall be contingent upon the occurrence of the Closing unless otherwise agreed in writing by the Company, and (2) using reasonable best efforts to obtain from the Company Credit Agreement agent a customary payoff letter in respect of the Company Credit Agreement;
(xiii) at Parent’s written request, cooperate with and use reasonable best efforts to provide all reasonable assistance to Parent in connection with any amendments to (A) the Financing Agreement, dated as of February 21, 2012, between The Kansas City Southern Railway Company and the United States of America, represented by the Secretary of Transportation acting through the Administrator of the Federal Railroad Administration and (B) the Financing Agreement, dated as of June 28, 2005, between Texas Mexican Railway Company and the United States of America, represented by the Secretary of Transportation acting through Administrator of the Federal Railroad Administration;
(xiv) on the Closing Date but immediately following the Closing, at Parent’s request (which may be prior to the Closing Date), execute such documentation as is reasonably requested so that the Company can assume the Debt Commitment Letter in respect of the Company Credit Agreement (to the extent the debt commitments thereunder have not been terminated at Closing in accordance with their terms); and
(xv) consent 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 or the Company’s or its Subsidiaries’ reputation or goodwill.
(b) The foregoing notwithstanding, none of Allergan the Company nor any of its Subsidiaries Affiliates shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to 5.12 that would: (i) pay require the Company or its Subsidiaries or any commitment of their respective Affiliates or other fee any persons who are officers or incur any liability (other than third-party costs and expenses that are directors of such entities to be promptly reimbursed by AbbVie upon request by Allergan pursuant pass resolutions or consents to Section 7.9(c))approve or authorize the execution of the Debt Financing or enter into, (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document document, instrument or instrument, agreement or agree to any change to or modification of any existing agreement, certificate, document document, instrument or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur agreement (except (x) to for the extent required authorization letters contemplated by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered5.12(a)(vi)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan the Company or any of its Subsidiaries (unless waived by AbbVie)Affiliates, (iii) require the Company or any of its Affiliates to (x) pay any commitment or other similar fee or (y) incur any other expense, liability or obligation which expense, liability or obligation is not reimbursed or indemnified hereunder in connection with the Debt Financing prior to the Closing, or (z) have any obligation of the Company or any of its Affiliates under any agreement, certificate, document or instrument be effective until the Closing, (iv) cause any director, officer or officer, employee or shareholder stockholder of Allergan the Company or any of its Subsidiaries Affiliates to incur any personal liability liability, (v) conflict with the Organizational Documents of the Company or any of its Affiliates or any Laws, (ivvi) reasonably be expected to result in a material violation or material breach of, or a default (with or without notice, lapse of time, or both) under, any material Contract to which Allergan the Company or any of its Subsidiaries Affiliates is a partyparty (other than the Change of Control under and as defined in the Company Credit Agreement resulting from the consummation of the Mergers), (vii) provide access to or disclose information that the Company or any of its Affiliates determines would jeopardize any attorney- client privilege or other applicable privilege or protection of the Company or any of its Affiliates, (viii) require the Company to prepare any financial statements or information (other than the Financing Information) that are not available to it and prepared in the ordinary course of its financial reporting practice, or (ix) require the Company to prepare or deliver any Excluded Information. Nothing contained in this Section 5.12 or otherwise shall require the Company or any of its Affiliates, prior to the Closing, to be an issuer or other obligor with respect to the Debt Financing. Parent shall, promptly on request by the Company, reimburse the Company or any of its Affiliates for all reasonable out-of-pocket costs incurred by them or their respective representatives in connection with such cooperation and shall indemnify and hold harmless the Company and its Affiliates and their respective representatives from and against any and all losses suffered or incurred by them in connection with the arrangement of the Debt Financing, any action taken by them at the request of Parent or its representatives pursuant to this Section 5.12 and any information used in connection therewith.
(c) The parties hereto acknowledge and agree that the provisions contained in this Section 5.12 represent the sole obligation of the Company and its Subsidiaries with respect to cooperation in connection with the arrangement of any financing (including the Debt Financing) to be obtained by Parent with respect to the transactions contemplated by this Agreement, and no other provision of this Agreement (including the Exhibits and Schedules hereto) shall be deemed to expand or modify such obligations. In no event shall the receipt or availability of any funds or financing (including the Debt Financing) by Parent any of its Affiliates or any other financing or other transactions be a condition to any of Parent’s obligations under this Agreement. Notwithstanding anything to the contrary in this Agreement, the Organizational Documents Company’s breach of Allergan or its Subsidiaries or any applicable Law. AbbVie of the covenants required to be performed by it under this Section 5.12 shall not be considered in determining the satisfaction of the condition set forth in Section 6.3(b), unless such breach is the primary cause all of Parent being unable to obtain the proceeds of the Debt Financing at the Closing.
(d) All non-public or other otherwise confidential information provided by or on behalf of Allergan regarding the Company or any of its Subsidiaries Affiliates obtained by Parent or Representatives its representatives pursuant to this Section 7.9 to 5.12 shall be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges Parent shall be permitted to disclose such information to (i) the Financing Parties subject to their confidentiality obligations under the Debt Commitment Letters and agrees that the confidentiality undertakings that will be obtained definitive documentation evidencing the Debt Financing and (ii) otherwise to the extent necessary and consistent with customary practices in connection with syndication of the Debt Financing will be in a form subject to customary for use in confidentiality arrangements reasonably satisfactory to the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover RulesCompany.
Appears in 2 contracts
Samples: Voting Trust Agreement (Canadian Pacific Railway LTD/Cn), Merger Agreement (Canadian Pacific Railway LTD/Cn)
Financing Cooperation. (a) Until Prior to the earlier of Merger Closing Date, the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan shall use its reasonable best effortsCompany shall, and shall cause each of its Subsidiaries to subsidiaries and Affiliated Entities to, use its commercially reasonable best efforts, and shall use its reasonable best efforts to cause its and their respective directors, officers, employees employees, consultants and advisors and other Representativesadvisors, including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie each of Parent and its Subsidiaries such assistance as may be Merger Sub, subject to reimbursement by Parent and/or Merger Sub pursuant to Section 5.21(c), all cooperation (x) reasonably requested by AbbVie Parent and/or Merger Sub and (y) as is necessary and customary to assist Parent and Merger Sub in writing that is customary connection with securing financing in an amount sufficient to permit Parent and Merger Sub to fund (A) the aggregate amount of Merger Consideration required to be paid pursuant to Article II, (B) all associated costs and expenses of the Merger (including any repayment or refinancing of indebtedness of the Company required in connection therewith) payable by Parent or Merger Sub and (C) all other amounts required to be paid in connection with the arranging, obtaining and syndication consummation of the transactions contemplated by this Agreement by Parent or Merger Sub (the “Financing”), including using reasonable best efforts with respect to:
: (i) participating in promptly provide each of Parent and assisting Merger Sub and its financing sources and their respective agents with the due diligenceRequired Information (as defined below); (ii) assist Parent and/or Merger Sub and use commercially reasonable efforts to cause its independent auditors to assist with Parent and/or Merger Sub’s preparation of pro forma financial statements customarily included in offering documents for high yield debt securities (or as otherwise reasonably required by each of Parent and Merger Sub’s financing sources and their respective agents); (iii) prior to and during the Marketing Period (as defined below), syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority participate in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions (including using commercially reasonable efforts to cause the Company’s and its subsidiaries’ independent auditors to participate therein and to otherwise cooperate with the reasonable requests of each of Parent and Merger Sub), sessions with prospective lenders, investors including direct contact between senior management and the other representatives of the Company, on the one hand, and the actual and potential lenders, on the other hand (including customary one-on-one meetings with the parties acting as lead arrangers or agents for, and prospective lenders and purchasers with respect to, the Financing), and sessions with rating agencies, in each case, at reasonable times and at locations reasonably acceptable to Allergan and upon reasonable noticemutually agreed; (iv) in advance of the Marketing Period, (B) assisting assist with AbbVie’s the preparation of customary materials for rating agency and investor presentations (including “roadshow” or investor meeting slides), registration statements, offering documents, private placement memoranda, bank information memoranda, offering memorandum, prospectuses, rating agency presentations private placement memoranda (including under Rule 144A under the Securities Act), confidential information memoranda, marketing materials and similar documents required in connection with the Financing Financing; (collectively, “Marketing Material”v) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings provide appropriate representations in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions preparation of financial statements and disclaimers);
(ii) timely furnishing AbbVie other financial data of the Company and its Financing Sources subsidiaries and cause the Company’s independent auditors to provide reasonable and customary assistance and cooperation in connection with historical financial and other the Financing, including, (A) rendering customary information (collectively, the “Financing Information”) comfort letters” under AU Section 634 for a public offering or a Rule 144A placement of securities with respect to Allergan financial information regarding the Company’s subsidiaries contained in the offering materials relating to the Financing, including providing customary representations to such accountants and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings furnishing, prior to the commencement of the applicable typeMarketing Period, including all Historical Financial Statements drafts of such comfort letters (which shall provide “negative assurance” comfort) which such accountants are prepared to issue upon completion of customary procedures, and other customary information with respect (B) providing consents for use of their reports in any filings required to Allergan and its Subsidiaries (A) of be made by the type that would be required by Regulation S-X and Regulation S-K under Parent and/or Merger Sub pursuant to the Securities Act if or the Financing were incurred by AbbVie Exchange Act; (vi) cooperate with the marketing efforts of each of Parent and registered on Form S-3 under Merger Sub and their respective financing sources for any portion of the Securities ActFinancing, where financial information of the Company and its subsidiaries and Affiliated Entities is included in such efforts; (vii) facilitate the obtaining of guarantees, pledging of collateral in connection with the Financing, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to executing and delivering any “going concern” qualifications)customary guarantee, pledge and security documents, currency or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary interest hedging arrangements or other definitive financing documents and or other customary information relating to Allergan and its Subsidiaries certificates, legal opinions or documents as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
by Parent and/or Merger Sub (iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities including a certificate of the Financing Sources;
(vii) causing the Financing chief financial officer with respect to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms solvency matters as of the definitive documents governing such indebtedness Merger Closing Date on a pro forma basis) to facilitate any guarantee, obtaining and perfection of security interests in collateral from and after the Merger Closing Date (provided that any obligations contained in such notice or payoff letter documents shall be expressly conditioned effective no earlier than as of the Effective Time); (viii) as applicable, cooperate in connection with any payoff and release of existing indebtedness of the Company and its subsidiaries and cause the release of all liens on the Completionequity interests and assets of the Company and its subsidiaries related thereto (including obtaining customary payoff letters, lien terminations and other instruments of discharge) (in each case subject to the occurrence of the Effective Time);
; (ix) procuring consents cooperate with Parent to the reasonable use of all of Allergan’s logos obtain corporate and facilities ratings in connection with the Financing (provided that such logos are used solely prior to the commencement of the Marketing Period, in a manner that is not intended to each case, from each of Standard & Poor’s Ratings Services and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
Xxxxx’x Investors Service, Inc., (x) providing at least three (3) Business Days in advance provide to each of the Completion Date such Parent and Merger Sub and their respective financing sources all documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing required by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Notwithstanding anything to the contrary in this Section 7.9(a) or Section 7.9(b) below, Act; (A) none of Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (iixi) execute and deliver (or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, assist in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur Parent and/or Merger Sub obtaining from legal counsel (except (xincluding local counsel) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (yCompany and its subsidiaries and their advisors) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law certificates, legal opinions, credit agreements, indentures, guarantees or other documents and would instruments as may be accurate reasonably requested by Parent and/or Merger Sub, as are in light of the facts each such case, necessary and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, customary in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel Financing; (xii) take corporate action (subject to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light occurrence of the facts and circumstances at Merger Closing Date) reasonably necessary to permit the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none completion of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated Financing; (except xiii) facilitate the execution and delivery of the definitive documentation related to the Financing as may be reasonably requested by each of Parent and/or Merger Sub; (xiv) provide authorization letters to the lenders authorizing the distribution of information to prospective lenders or investors and containing a representation to the lenders that such information does not contain a material misstatement or omission and that the public side versions of such documents, if any, do not include material non-public information about the Company or its subsidiaries or securities; (xv) use commercially reasonable efforts to involve in any applicable Allergan Supplemental Indentures), syndication efforts in connection with the Financing the Company’s and its subsidiaries’ existing lending and investment banking relationships; and (Cxvi) neither Allergan nor upon request, endeavor to update any Required Information provided to Parent and/or Merger Sub as may be necessary for such Required Information to remain Compliant (as defined below); provided that nothing herein shall require the Company or any of its Subsidiaries shall be required subsidiaries or the Affiliated Entities to take or permit provide such cooperation to the taking of any action that extent it would (i) interfere unreasonably with the business or operations of Allergan the Company (including its subsidiaries); and provided further that the Company Board and officers of the Company and the board of directors and officers of its subsidiaries and Affiliated Entities shall not be required, prior to the Merger Closing Date, to adopt resolutions approving the agreements, documents and instruments in connection with the Financing or pursuant to which any portion of the Financing is obtained, and no subsidiaries of the Company nor any officer or director thereof shall be required to execute, prior to the Merger Closing Date, any documents contemplated by the definitive documentation related to the Financing or any other certificate, document, instrument or agreement that is effective prior to the Merger Closing Date or agree to any change or modification to any existing certificate, document, instrument or agreement that is effective prior to the Merger Closing Date. None of the Company nor any of its Subsidiariessubsidiaries or Affiliated Entities shall be required to take any action that would subject it to actual or potential liability, to bear any cost or expense or to pay any commitment or other similar fee or make any other payment (iiother than reasonable out-of-pocket costs) cause or incur any representation other liability or warranty provide or agree to provide any indemnity, guarantee or pledge in connection with the Financing or any of the foregoing prior to the Merger Closing Date (other than to the extent such liabilities arise from the breach of this Agreement by the Company). The subsidiaries and Affiliated Entities of the Company hereby consent to the reasonable use of the Company’s and its subsidiaries’ and Affiliated Entities’ logos in connection with the arranging and consummation of the Financing; provided that such logos are used solely in a manner that is not intended to or reasonably likely to harm or disparage the business of the subsidiaries or Affiliated Entities or their marks. Parent acknowledges that its obligations under this Agreement are not contingent or conditioned in any manner on obtaining any financing.
(b) If the Merger Closing does not occur, Parent and/or Merger Sub, as applicable, shall promptly reimburse the Company and its subsidiaries and Affiliated Entities for all reasonable out-of-pocket third party costs (including reasonable attorneys’ fees) incurred by the Company, its subsidiaries and Affiliated Entities or their respective Representatives in connection with such cooperation; provided that, in no event shall Parent or Merger Sub be breached by Allergan required to reimburse the Company or any of its Subsidiaries (unless waived by AbbVie), (iii) cause subsidiaries or Affiliated Entities for any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, costs associated with producing the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public financial statements or other confidential information provided by that the Company would have otherwise generated in the absence of such requests or on behalf of Allergan or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained in connection with syndication of the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover Rules5.20.
(c) For purposes hereof:
Appears in 2 contracts
Samples: Merger Agreement (IPC Healthcare, Inc.), Merger Agreement (Team Health Holdings Inc.)
Financing Cooperation. (a) Until the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan shall use its reasonable best efforts, and shall cause each of its Subsidiaries to use its reasonable best efforts, and shall use its reasonable best efforts to cause its and their respective officers, employees and advisors and other Representatives, including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie and its Subsidiaries such assistance as may be reasonably requested by AbbVie in writing that is customary in connection with the arranging, obtaining and syndication of the Financing, including using reasonable best efforts with respect to:
(i) participating in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Notwithstanding anything to the contrary in this Section 7.9(a) or Section 7.9(b) below, (A) none of Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan EchoStar shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any provide such information to be disclosed assistance as reasonably requested by DISH in a manner that would not result in the loss connection with financing arrangements (including assumptions, guarantees, amendments, supplements, modifications, refinancings, replacements, repayments, terminations or prepayments of any such privilege), (ivexisting financing arrangements) deliver as DISH may reasonably determine necessary or cause its Representatives to deliver any legal opinion or negative assurance letter (except, advisable in connection with the entry into an Allergan Supplemental Indenture required completion of the Merger or the other transactions contemplated by Section 7.9(b)this Agreement. Such assistance shall include, Allergan shall, and shall cause its Subsidiaries but not be limited to, use their respective reasonable best efforts the following: (a) providing such information and making available such personnel as DISH may reasonably request, including the preparation and furnishing in a timely fashion of all financial statements and other data customary to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan be included in connection therewith (including all audited financial statements, all unaudited financial statements (which shall have been reviewed by the independent accounting firm for EchoStar as provided that such opinions would not conflict with applicable Law in the procedures specified by the Public Company Accounting Oversight Board in AU 722)) and would be accurate in light all information regarding EchoStar and its Subsidiaries reasonably required for DISH to prepare pro forma financial statements, financial data, audit reports and other information regarding EchoStar and its Subsidiaries of the facts type required by and circumstances at in compliance with Regulation S-X and Regulation S-K promulgated under the time delivered))Securities Act and related forms; (b) participation in, and assistance with, any marketing activities related to such financing; (vc) be an issuer participation by senior management of EchoStar in, and their assistance with, the preparation of rating agency presentations and meetings with rating agencies; (d) taking such actions as are reasonably requested by DISH or other obligor its financing sources to facilitate the satisfaction of all conditions precedent to obtaining such financing; and (e) assisting in any exchange transactions or consents with respect to the Financing EchoStar Indentures. Notwithstanding the foregoing, EchoStar and its Subsidiaries shall not be required pursuant to this Section 4.19 to (1) enter into any letter, certificate, document, agreement or instrument (other than customary authorization and representation letters and notices) that will be effective prior to the CompletionClosing (or that will otherwise be effective if the Closing does not occur), (vi2) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that to the extent it would (i) interfere unreasonably with disrupt the business or operations of Allergan EchoStar and the EchoStar Subsidiaries (taken as a whole) or require any of them to take any actions that would reasonably be expected to violate any applicable Legal Requirement, any Contract or their respective Organizational Documents, (3) provide any information to the extent such information would not be required to be provided pursuant to Section 4.8(a), (4) take any actions, or omit to take an action, that would reasonably be expected to result in any personal liability for the directors, officers, employees or stockholders of EchoStar or any of its Subsidiaries, (ii5) provide any information that cannot be provided without unreasonable burden or expense or (6) take any action, or omit to take an action, that would reasonably be expected to cause any representation representation, warranty or warranty covenant in this Agreement to be breached by Allergan EchoStar or any of its Subsidiaries (unless waived by AbbVie), (iiiDISH) or cause any directorclosing condition set forth in Article V to fail to be satisfied. EchoStar hereby consents to DISH’s use of and reliance on any audited or unaudited financial statements relating to EchoStar and the consolidated EchoStar Subsidiaries, officer including any filings that DISH desires to make with the SEC. In addition, EchoStar will use reasonable best efforts, at DISH’s sole cost and expense, to obtain the consents of any auditor to the inclusion of the financial statements referenced above in appropriate filings with the SEC.
(b) DISH shall promptly reimburse EchoStar for any reasonable and documented costs and expenses (including legal expenses but excluding costs of EchoStar’s preparation of financial information and financial statements in connection with its compliance with its periodic reporting obligations under the Exchange Act or employee or shareholder otherwise in the ordinary course of Allergan business) incurred by EchoStar or any of its Subsidiaries (including reasonable attorneys’ and accountants’ fees) in connection with any action taken (or not taken) in compliance with Section 4.19(a). DISH shall indemnify and hold harmless EchoStar, its Subsidiaries and their respective Representatives from any losses, damages, fines, amounts paid in settlement, costs or expenses arising out of or relating to incur any personal liability action taken (or not taken) in compliance with Section 4.19(a) (iv) result in a material violation or breach of, or a default under, any material Contract other than to which Allergan or the extent any of its Subsidiaries is the foregoing are incurred as a partyresult of gross negligence, the Organizational Documents bad faith or willful misconduct of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan or EchoStar, any of its Subsidiaries or Representatives any of their respective Representatives).
(c) All confidential information regarding EchoStar and its Subsidiaries provided by EchoStar and its Subsidiaries pursuant to this Section 7.9 to 4.19 shall be kept confidential in accordance with the terms of the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained in connection with syndication of the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover Rules.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (DISH Network CORP), Agreement and Plan of Merger (EchoStar CORP)
Financing Cooperation. (a) Until the earlier of the Completion Effective Time and the valid termination of this Agreement pursuant to and in accordance with Article 9Termination Date, Allergan Company shall use its reasonable best efforts, and shall cause each of its Subsidiaries to use its their respective reasonable best efforts, and shall use its reasonable best efforts to cause its and their respective officers, employees and advisors and other Representatives, including legal and accounting advisors, Representatives to use their respective reasonable best efforts, to provide to AbbVie and its Subsidiaries such assistance as may be all cooperation that is reasonably requested by AbbVie Buyer in writing and that is customary in connection with Buyer obtaining third-party debt financing for the arrangingpurpose of financing any amounts required to be paid, obtaining and syndication or issuing new debt in exchange for any of Company’s outstanding 5.00% Senior Notes due 2025 (the “Senior Notes”), in connection with the consummation of the transactions contemplated hereby (collectively, the “Financing”, and the financial institutions participating in such Financing, the “Financing Parties”), including using reasonable best efforts with respect to:
(i) participating furnishing to Buyer (A) audited consolidated balance sheets and related consolidated statements of operations, comprehensive income, stockholders’ equity and cash flows for Company for each of the three most recently completed fiscal years of Company ended at least sixty (60) days prior to the Closing Date (and, if such financing is an offering of securities, the launch date of such offering) prepared in accordance with GAAP applied on a basis consistent with that of the most recent fiscal year, (B) unaudited condensed consolidated balance sheets and assisting related condensed consolidated statements of operations, comprehensive income and cash flows (in each case, subject to normal year-end adjustments and absence of certain footnotes, as permitted by the applicable rules of the SEC) for Company for the fiscal quarter ended September 30, 2019 and each subsequent fiscal quarter ended on a date that is at least forty (40) days before the Closing Date (and, if such financing is an offering of securities, the launch date of such offering), and (C) other historical financial information regarding Company and its Subsidiaries reasonably necessary to permit Buyer to prepare pro forma financial statements customarily included in marketing and offering documents for an offering of securities of Buyer on a registration statement filed with the due diligence, syndication or other marketing SEC;
(ii) furnishing to the Financing Parties customary authorization letters (subject to customary confidentiality provisions and disclaimers) authorizing the distribution of the Financing, including information;
(iii) using reasonable best efforts to cause Company’s or any of its Subsidiary’s independent accountants to provide customary assistance and cooperation reasonably requested by Buyer or the Financing Parties with respect to any offering of securities, including (A) providing any necessary written consents to use their audit or other reports relating to financial statements of Company and its Subsidiaries and to be named as an “Expert” in any document related to any applicable Financing that is registered under the participation Securities Act and (B) participating in customary accounting due diligence sessions and providing any customary “comfort” letters (including customary “negative assurance” comfort for any applicable Financing);
(iv) assisting Buyer in the preparation of customary offering and marketing documents (and any supplements thereto) in connection with any Financing; and
(v) (A) cooperating with any customary due diligence process as reasonably requested by members of management of Allergan with appropriate seniority Buyer, including participating in a reasonable number of meetings, presentations, road shows, drafting due diligence sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, in each case at times and at locations reasonably acceptable to Allergan Company and upon reasonable notice, and (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection cooperating with the Financing (collectivelycustomary marketing efforts of Buyer, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;.
(ivb) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Notwithstanding anything to the contrary in this Section 7.9(a) 5.22 and Section 5.23 neither Company nor any Subsidiary shall, pursuant to this Section 5.22 or Section 7.9(b5.23:
(i) belowbe required to incur any out-of-pocket fees, expenses or other liabilities prior to the Effective Time for which it has not been previously or is not promptly reimbursed or simultaneously indemnified in full or pay any fee prior to the Effective Time for which it has not been previously or is not promptly reimbursed in full;
(Aii) none be required to cause any Representative of Allergan nor Company or any of its Subsidiaries shall to take any action that could reasonably be expected to result in such Representative incurring any personal liability;
(iii) be required to take provide any information that is prohibited or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed restricted from being provided by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents applicable Law or any other agreement, certificate, document or instrument, or agree to any change to or modification of any Contract existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light as of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) date hereof or provide access to or disclose information that Allergan or any that, in the reasonable good faith determination of its Subsidiaries reasonably determines Company, would jeopardize or violate any attorney-client privilege of Allergan or any confidentiality obligation binding on Company or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), Subsidiaries;
(iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture be required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use nor shall any of their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicableRepresentatives be required, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (vA) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving to approve or authorize the execution of the agreements, documents or and instruments pursuant to which the Financing is obtained or (B) execute, deliver or enter into, or perform any Allergan Note Offers and Consent Solicitations is consummated agreement, document or instrument (other than customary authorization letters), including any credit or other agreements, guarantees, pledge or security documents or certificates in connection with the Financing that would be effective prior to the Effective Time (other than customary authorization letters);
(v) be required to (or be required to cause their Representatives to) enter into or approve any other agreement or other documentation, or agree to any change or modification of any existing agreement or other documentation that would be effective prior to the Effective Time (except as set forth in Section 5.23);
(vi) be required to (or be required to cause their Representatives to) provide any indemnity prior to the execution and delivery Effective Time for which it has not received prior reimbursement in full or is not otherwise indemnified in full by or on behalf of Buyer;
(vii) be required to (or be required to cause their Representatives to) take any applicable Allergan Supplemental Indentures)action that would reasonably be expected to conflict with, and (C) neither Allergan nor or result in a violation of, or result in a breach of or a default under, any charter or other organizational documents of Company or any of its Subsidiaries shall as in effect on the date hereof;
(viii) be required to (or be required to cause their Representatives to) take or permit the taking of any action that would reasonably be expected to conflict with, violate, or result in breach of or default under the provisions of the Credit Agreement, dated as of September 7, 2017, among Delphi Jersey Holdings plc (irenamed Delphi Technologies PLC) interfere unreasonably with (“DJH”), Delphi Powertrain Corporation (“DPC”), JPMorgan Chase Bank, N.A., as administrative agent, and the business other lenders and agents party thereto (the “Company Credit Agreement”) or operations the Senior Notes Indenture, dated as of Allergan September 28, 2017, among DJH, the guarantors named therein, U.S. Bank National Association (“USB”) as trustee (the “Trustee”), and U.S. Bank National Association as registrar, paying agent and authenticating agent, as supplemented by the Supplemental Indenture, dated December 4, 2017, by and between DJH, the guaranteeing parties and USB relating to the Senior Notes (the “Senior Notes Indenture”);
(ix) be required to (or its Subsidiariesbe required to cause their Representatives to) take any actions that would, (ii) or would reasonably be expected to, cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan Company or any of its Subsidiaries or Representatives pursuant that would, or would reasonably be expected to, cause any condition set forth in Article VI to this Section 7.9 fail to be kept confidential satisfied (in accordance each case unless Buyer waives such breach or failure prior to Company or any of its Subsidiaries taking such action);
(x) be required to (or be required to cause their Representatives to) take any actions that would unreasonably interfere with Company’s and its Subsidiaries’ business or operations taken as a whole;
(xi) be required to (or be required to cause their Representatives to) prepare or furnish pro forma financial statements, projections or financial statements (provided that Company shall use its reasonable best efforts to provide any historical financial information regarding Company and its Subsidiaries reasonably necessary to permit Buyer to prepare pro forma financial statements customarily included in marketing and offering documents for an offering of securities of Buyer on a registration statement filed with the Confidentiality Agreement; providedSEC as contemplated in Section 5.22(a)(i));
(xii) be required to be an issuer or obligor with respect to the Financing prior to the Effective Time.
(xiii) be required to (or be required to cause their Representatives to) provide opinions of internal or external counsel.
(c) Buyer shall, that Allergan acknowledges promptly upon request by Company, reimburse Company for all reasonable and agrees that the confidentiality undertakings that will be obtained documented costs and expenses (including attorneys’ fees) incurred by Company or any of its Subsidiaries in connection with syndication of the Financing will be cooperation contemplated by this Section 5.22, and shall indemnify and hold harmless Company, its Subsidiaries and their respective Representatives from and against any and all liabilities, losses, damages, claims, expenses (including attorneys’ fees), interest, judgments and penalties suffered or incurred by them, in a form customary for use connection with this Section 5.22, in each case whether or not the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover Rulestransactions contemplated hereunder are consummated or this Agreement is terminated.
Appears in 2 contracts
Samples: Transaction Agreement (Delphi Technologies PLC), Transaction Agreement (Borgwarner Inc)
Financing Cooperation. (a) Until Prior to the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9Closing Date, Allergan shall use its reasonable best effortsClorox Parent shall, and shall cause each of its Subsidiaries to use its reasonable best effortsto, and shall use its commercially reasonable best efforts to cause its and their respective the officers, employees employees, representatives and advisors of Clorox Parent and other Representativeseach of its Subsidiaries to, including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie and its Subsidiaries Purchaser such assistance as may be cooperation reasonably requested by AbbVie Purchaser to assist Purchaser in writing that causing the conditions in the Debt Financing Letters to be satisfied and such cooperation as is customary reasonably requested by Purchaser in connection with the arrangingDebt Financing and the Debt Payoff (for the avoidance of doubt, obtaining and syndication any references to Debt Financing or Financing in this Section 5.19 shall include the issuance of senior notes (which may be secured) contemplated by the FinancingDebt Commitment Letter), including using reasonable best efforts with respect tocooperation that consists of:
(i) participating in and assisting with having the due diligence, syndication or other marketing management team of the Financing, including using reasonable best efforts with respect Business to (A) the participation by members of management of Allergan with appropriate seniority participate in a customary and reasonable number of meetings, presentations, road shows, drafting due diligence sessions, due diligence drafting sessions and sessions with prospective lenders, investors and rating agencies;
(ii) using commercially reasonable efforts to assist with the preparation of a customary rating agency presentation, at times bank information memoranda and at locations reasonably acceptable bank syndication materials (and providing reasonable and customary authorization letters to Allergan the financing sources authorizing the distribution of information to prospective lenders and upon reasonable noticecontaining customary information), (B) assisting and high-yield offering prospectuses or memoranda required in connection with AbbViethe Financing, including making available employees of the Business and members of the finance department or other employees of Clorox Parent and its Subsidiaries to assist Purchaser in Purchaser’s preparation of customary materials any required financial information (including pro forma financial information) or projections; provided, that any such bank information memoranda or high-yield offering prospectuses or memoranda shall contain disclosure and pro forma financial statements reflecting Purchaser and/or its Subsidiaries as the obligor;
(iii) with respect to the Transferred Companies, executing and delivering any pledge and security documents and intercreditor agreements, guarantees, indentures, currency or interest hedging arrangements, other definitive financing documents,
(iv) furnishing Purchaser and its Financing sources as promptly as practicable with (A) (I) audited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of the Business, for registration statementsthe three most recently completed fiscal years ended at least 90 days before the Closing Date, (II) unaudited consolidated balance sheets and related statements of income and cash flows of the Business for each fiscal quarter ended during Clorox Parent’s 2010 fiscal year, which shall have been reviewed by the Business’s independent accountants as provided in SAS 100, and (III) unaudited consolidated balance sheets and related statements of income and cash flows of the Business for each fiscal quarter ended after the close of its most recent fiscal year and at least 45 days prior to the closing date (provided that if the Closing occurs prior to Clorox Parent having furnished such financial statements to Purchaser, Clorox Parent will furnish such financial statements to Purchaser as promptly as practicable thereafter, but in any event within the later of (i) ten (10) Business Days after the Closing Date and (ii) thirty calendar days after the end of Clorox Parent’s most recently completed fiscal year), in case of (I), (II) and (III) in form and substance required by Regulation S-X and Regulation S-K promulgated under the Securities Act for a registered public offering documentsof non-convertible debt securities of the Purchaser, to the extent the same is of the type and form customarily included in an offering memorandum, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations prospectuses and similar documents required to issue and sell notes in connection with a public offering or private placement under Rule 144A promulgated under the Financing Securities Act or other private placement, (collectively, “Marketing Material”B) and due diligence sessions related theretoa reasonably detailed listing of the corporate cost allocations for the Business for each of the periods referred to in (A) above, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing an electronic version of the historical audited consolidated financial statements trademarks, service marks and unaudited consolidated interim financial statements corporate logo of Allergan included or incorporated by reference into the Allergan SEC Documents (Business for use in marketing materials for the “Historical Financial Statements”) purpose of facilitating the syndication of the Debt Financing, and (D) delivering customary the authorization lettersletters referred to in Section 5.19(a)(ii) (all such information in this clause (v), management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers“Required Information”);
(iiv) timely furnishing AbbVie except as otherwise set forth in Section 5.19(a)(iv) above, using commercially reasonable efforts to furnish Purchaser and its Financing Sources sources as promptly as practicable with historical all financial statements, pro forma financial information, financial data, audit reports and other customary information (collectively, regarding the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) Business of the type that would be required by Regulation S-X and Regulation S-K promulgated under the Securities Act if for a registered public offering of non-convertible debt securities of the Financing were incurred by AbbVie Purchaser (including for Purchaser’s preparation of pro forma financial statements), to the extent the same is of the type and registered on Form S-3 form customarily included in an offering memorandum, private placement memoranda, prospectuses and similar documents to issue and sell notes in a public offering or private placement under Rule 144A promulgated under the Securities ActAct or other private placement, or otherwise necessary to receive from the Business’s independent accountants customary “comfort” (including audit reports of annual financial statements “negative assurance” comfort) with respect to the extent so required (which audit reports shall not financial information to be subject included in such offering memorandum and which, with respect to any “going concern” qualifications)interim financial statements, or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of shall have been reviewed by the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing AllerganBusiness’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors accountants as experts provided in any Marketing Material and registration statements and related government filings filed or used in connection with the FinancingSAS 100;
(vi) obtaining Allerganusing commercially reasonable efforts to cooperate with Purchaser and Purchaser’s independent auditorsefforts to obtain customary and reasonable accountants’ customary comfort letters and assistance with no later than the accounting due diligence activities first day of the Financing SourcesMarketing Period, corporate and facilities ratings, consents, landlord waivers and estoppels, non-disturbance agreements, non-invasive environmental assessments, legal opinions, surveys, appraisals, and title insurance (including providing reasonable access to Purchaser and its representatives to all Fee Properties and Leased Properties), to the extent reasonably required by the prospective Lenders;
(vii) causing using commercially reasonable efforts to take all actions reasonably necessary to (x) permit the Financing prospective Lenders to benefit from evaluate the existing lender relationships Business’s current assets, cash management and accounting systems, policies and procedures relating thereto for the purpose of Allergan preparing bank memoranda and its Subsidiariesoffering documents and establishing collateral arrangements to the extent customary and reasonable and (y) establish bank and other accounts and blocked account agreements and lock box arrangements in connection with the foregoing;
(viii) providing documents reasonably requested by AbbVie or requesting customary payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the Financing Sources relating payoff, discharge and termination in full on the Closing Date of all Indebtedness to be extinguished on the Closing Date (the “Debt Payoff”); and
(ix) with respect to the repayment Transferred Companies only, entering into one or refinancing more credit or other agreements or indentures on terms satisfactory to Purchaser in connection with the Debt Financing immediately prior to the Effective Time to the extent direct borrowings or debt incurrences by a Transferred Company are contemplated by the Debt Commitment Letter; provided that notwithstanding anything to the contrary in this Agreement, (v) nothing herein shall require such cooperation to the extent it would require Clorox Parent to waive or amend any terms of this Agreement or agree to pay any indebtedness fees or reimburse any expenses for borrowed money which it has not received prior reimbursement by or on behalf of Allergan Purchaser, or incur any Liability or give any indemnities other than as set forth in this Agreement, (w) nothing herein shall require such cooperation from Clorox Parent or its Subsidiaries to the extent it would unreasonably interfere with the ongoing operations of Clorox Parent and its Subsidiaries (including without limitation, the timely filing of disclosures pursuant to applicable securities laws and the announcement of earnings), or require Clorox Parent or any of its Subsidiaries to take any action that will conflict with or violate their respective organizational documents or any Laws or result in the contravention of or could reasonably be repaid expected to result in a violation or refinanced on breach of any Contract to which Clorox Parent or any of its Subsidiaries is a party or otherwise bound, (x) neither Clorox Parent nor any of its Subsidiaries nor any of their respective Representatives shall incur any Liability relating to the Completion Date Debt Financing (other than Liabilities of the Transferred Companies after the Closing Date), (y) no obligation of Clorox Parent or its Subsidiaries or any of their respective Representatives under any certificate, agreement, arrangement, document or instrument relating to the Debt Financing shall be effective until the Closing Date, and (z) any bank information memoranda and high-yield offering prospectuses or memoranda required in relation to the Debt Financing (1) shall not be issued by Clorox Parent or any of its Subsidiaries, (2) shall contain disclosure and pro forma financial statements reflecting the Purchaser and/or its Subsidiaries as the obligor, and (3) shall expressly disclaim any representation, warranty or Liability of Clorox Parent, its Subsidiaries or their Representatives (other than the Transferred Companies post-Closing) to the recipients thereof and the release of related liens and/or guarantees ultimate Lenders.
(if anyb) effected therebyClorox Parent, including customary payoff letters its Affiliates and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtednesstheir respective officers, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter advisors and representatives shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of indemnified and held harmless by Purchaser for and against any and all of Allergan’s logos Losses suffered or incurred by them in connection with the Financing arrangement of the Debt Financing, the Debt Payoff, and/or the provision of information utilized in connection therewith to the fullest extent permitted by applicable law, except to the extent such Losses were caused by the gross negligence or willful misconduct of Clorox Parent, its Affiliates or their respective officers, advisors and representatives or by breach of this Agreement by Clorox Parent, and to the full extent such indemnification is not available Clorox Parent’s contribution shall be limited to its relative fault arising from any gross negligence or willful misconduct or breach of this Agreement by Clorox Parent, its Affiliates or their respective Representatives, and Purchaser shall reimburse Clorox for any Losses incurred in excess of such amount.
(c) Clorox Parent hereby consents to the use the trademarks, service marks and corporate logos of the Business in connection with the Financing; provided that such trademarks, service marks and corporate logos are used solely in a manner that is not intended to and is not or reasonably likely to harm or disparage Allergan Clorox Parent or any of its Subsidiaries or the reputation or goodwill of Allergan Clorox Parent or any of its Subsidiaries); and.
(xd) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Notwithstanding anything to the contrary in this Section 7.9(a) or Section 7.9(b) below, (A) none of Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all All non-public or other confidential information provided by or on behalf of Allergan Clorox Parent or any of its Subsidiaries officers, employees, representatives or Representatives advisors pursuant to this Section 7.9 to Agreement shall be kept confidential in accordance with a customary manner for syndicated financings; provided that, notwithstanding anything to the contrary in this Agreement or the Confidentiality Agreement; provided, that Allergan acknowledges Purchaser shall be permitted to disclose such information to potential sources of capital, rating agencies, prospective lenders and agrees that the confidentiality undertakings that will be obtained investors and their respective officers, employees, representatives and advisors in connection with syndication of the Financing will so long as such Persons agree to be in bound by the Confidentiality Agreement or other customary confidentiality undertaking reasonably satisfactory to Clorox Parent and of which Clorox Parent shall be a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover Rulesbeneficiary.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Armored AutoGroup Inc.), Purchase and Sale Agreement (Clorox Co /De/)
Financing Cooperation. (a) Until From the date hereof until the Closing (or the earlier of the Completion and the valid termination of this Agreement pursuant to and Article IX), subject to the limitations set forth in accordance with Article 9this Agreement, Allergan shall use its reasonable best efforts, and shall cause each of its Subsidiaries to use its reasonable best effortsXxxxxx, XXX and Xxxxxx shall cooperate, and shall use its their reasonable best efforts to cause its their respective Subsidiaries (and use their reasonable best efforts to cause each of their respective officers, employees directors, affiliates and advisors agents) to cooperate, with Holdco and other Representativeswith each other, including legal and accounting advisorsas reasonably requested, to use their arrange and consummate the ABL Financing and the Exchange Financing. Such cooperation will include:
(i) using reasonable best effortsefforts to make officers of appropriate seniority available, with appropriate advance notice and at times and locations reasonably acceptable to provide the applicable party for participation in bank meetings, additional bank calls during normal business hours at times to AbbVie be mutually agreed, due diligence sessions during normal business hours at times to be mutually agreed, reasonable assistance in the preparation of confidential information memoranda and its Subsidiaries such assistance similar customary documents as may be reasonably requested by AbbVie any Financing Source for all or any portion of the ABL Financing;
(ii) furnishing the Financing Sources with copies of such historical financial data with respect to the NAM Business or Xxxxxx, as applicable, and their respective Subsidiaries, which is prepared by the NAM Business or Xxxxxx (or their respective Subsidiaries), as applicable, in writing that the ordinary course of business, and other financial data or other pertinent information as may be required to be delivered to satisfy a condition precedent under the Commitment Letter and is customary in connection with customarily required for the arranging, obtaining arrangement and syndication of debt financings similar to the Financing, including using reasonable best efforts with respect to:ABL Financing or is required pursuant to the Commitment Letter;
(iiii) participating in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation of appropriate and customary materials relating to the NAM Business or Xxxxxx, as applicable, and their respective Subsidiaries, for registration statementsrating agency presentations and meetings, offering documents, private placement memorandamarketing materials, bank information memoranda, prospectuseslender presentations, rating agency investor presentations and similar documents, in each case, reasonably requested by the Financing Sources in connection with the ABL Financing and, in each case, with respect to information relating to the NAM Business or Xxxxxx, as applicable, and their respective Subsidiaries;
(iv) providing at least five days prior to Closing all documentation and other information reasonably requested by the Financing Sources at least ten days prior to Closing under applicable “know your customer,” anti-money laundering rules and regulations and the USA PATRIOT Act of 2001;
(v) providing reasonable and customary authorization letters, confirmations and undertakings to the Financing Sources authorizing the distribution of information relating to the NAM Business or Xxxxxx, as applicable, and their respective Subsidiaries, to prospective lenders (including with respect to presence or absence of material non-public information and accuracy of the information contained therein) and subject to customary confidentiality provisions;
(vi) assisting with the preparation of any credit agreement, indenture, pledge and security documents (including any intercreditor agreement), perfection certificates, hedging agreements, or other definitive financing documents or other documents related to the ABL Financing and the Exchange Financing; provided, that no obligation of Holdco or its Subsidiaries (including Xxxxxx and its Subsidiaries) under any such document or agreement shall be effective until the Closing;
(vii) facilitating the pledging of collateral owned by Holdco or its Subsidiaries; provided, that no pledge shall be effective until the Closing; and
(viii) assisting in the preparation of the pro forma financial statements and projections required in connection with the Financing ABL Financing; and
(collectively, “Marketing Material”ix) (A) allowing the usual and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing customary use of the historical audited consolidated financial statements and unaudited consolidated interim financial statements logos of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings parties in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the ABL Financing (provided that such logos are shall be used solely in a manner that is not intended to and is not or reasonably likely to harm harm, disparage or disparage Allergan or its Subsidiaries or otherwise adversely affect the reputation or goodwill of Allergan or any of its Subsidiaries); and
such party) and (xB) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Closing, allowing the placement of customary advertisements in financial and other newspapers and periodicals or on a home page or similar place for dissemination of customary information on the Internet or worldwide web as the Financing that relates to applicable Sources may choose, and circulate similar promotional materials in the form of a “know your customertombstone” or otherwise describing aspects of the transactions contemplated hereby and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. ABL Financing.
(b) Notwithstanding anything to the contrary contained in this Agreement (including this Section 7.9(a7.21):
(i) or nothing in this Agreement (including this Section 7.9(b7.21) below, shall require any such cooperation to the extent that it would: (A) none of Allergan nor require any party or any of its their respective Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee fees, reimburse any expenses or otherwise incur any liability liabilities or give any indemnities prior to the Closing that will not be paid, reimbursed, incurred or given by Holdco following the Closing; (B) materially interfere with the ongoing business or operations of Xxxxxx, the NAM Business, Xxxxxx or any of their respective Subsidiaries, (C) require any party or any of their respective Subsidiaries to enter into any agreement or other document effective prior to the Closing (other than third-party costs authorization letters, confirmations and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to undertakings described in Section 7.9(c7.21(a)(iv) or Section 7.21(a)(v)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case agreement that would be effective prior to the Completion Date Closing (other than customary authorization letters); (D) require, prior to the Effective Time, any party or would be effective if the Completion does not occur any of their respective Subsidiaries or any of their respective boards of directors (except (xor equivalent bodies) to approve or authorize the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, ABL Financing; (yE) customary officers’ certificates relating to the execution thereof require any action that would not conflict with applicable Law and or violate the Organizational Documents of any party or any of its Subsidiaries or any material laws, or orders or result in the contravention of, or that would reasonably be accurate expected to result in light a violation or breach of, or default under, any NAM Material Contract or Xxxxxx Material Contract, as applicable; (F) cause any director, officer, employee or stockholder of the facts and circumstances at the time delivered and any party or any of their respective Subsidiaries to incur any personal liability; or (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iiiG) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client or work product privilege; provided that in such circumstances, the party in possession of such information shall provide a reasonable description of such information and shall cooperate in good faith to design and implement alternative disclosure arrangements to enable to evaluate such information, in each case without resulting in any attorney-client privilege or work-product privilege being jeopardized; or (H) require the NAM Business, Xxxxxx or any of Allergan their respective Subsidiaries to prepare separate financial statements for any Subsidiary thereof, or change any fiscal period; and
(ii) no action, liability or obligation (including any obligation to pay any commitment or other fees or reimburse any expenses) of any party or their respective Subsidiaries, or any of their respective representatives under any certificate, agreement, arrangement, document or instrument relating to the ABL Financing (other than with respect to customary authorization letters) shall be effective until the Closing.
(c) Following the Closing, Holdco shall indemnify and hold harmless Xxxxxx, XXX, Xxxxxx and their respective Subsidiaries (other than with respect to any of the following that result from information furnished by such party or their respective Subsidiaries) against any claim, loss, damage, injury, liability, judgment, award, penalty, fine, cost (including cost of investigation), reasonable and documented out-of-pocket expenses (including reasonable and documented out-of-pocket fees and expenses of counsel and third-party accountants) or settlement payment incurred as a result of such cooperation or the ABL Financing and any information used in connection therewith; provided however, that the foregoing indemnification and hold harmless shall not apply to Xxxxxx, XXX or Xxxxxx, as applicable, in the case of any item arising from the willful misconduct or gross negligence of such party or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use or their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver affiliates or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Lawrepresentatives. AbbVie shall cause all All non-public or other confidential information provided by or on behalf of Allergan or any of party, and its Subsidiaries or Representatives affiliates and representatives pursuant to this Section 7.9 7.21 shall be subject to be kept confidential customary confidentiality agreements in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained in connection with syndication of the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover RulesSection 7.06.
Appears in 2 contracts
Samples: Merger Agreement (Forbes Energy Services Ltd.), Merger Agreement (Superior Energy Services Inc)
Financing Cooperation. (a) Until At all times from and after the earlier of the Completion and the valid termination of this Agreement pursuant date hereof to and in accordance with Article 9through the Closing Date, Allergan shall use its reasonable best effortsat the sole expense of Parent, the Company shall, and shall cause each of its Subsidiaries to use its reasonable best effortssubsidiaries to, and shall use its commercially reasonable best efforts to cause its and their the respective officers, employees employees, consultants and advisors and other Representativesadvisors, including legal and accounting advisors, to of the Company and its subsidiaries to, use their respective commercially reasonable best efforts, efforts to provide to AbbVie and its Subsidiaries Parent such assistance cooperation as may be reasonably requested by AbbVie in writing that is customary Parent in connection with obtaining the arranging, obtaining and syndication of the Debt Financing, including using reasonable best efforts with respect toincluding:
(i) participating in making senior management and assisting with the due diligence, syndication or other marketing advisors of the Financing, including using reasonable best efforts with respect Company and its subsidiaries available to (A) the participation by members of management of Allergan with appropriate seniority assist in preparation for and participate in a reasonable number of meetings, presentations, road shows, drafting sessions, sessions and due diligence sessions with the Debt Financing Sources and other proposed lenders, legal counsel, underwriters, initial purchasers, placement agents and potential investors, and in sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable subject to Allergan and upon reasonable notice, customary confidentiality provisions;
(Bii) assisting Parent with AbbVieParent’s preparation of customary pro forma financial information and pro forma financial statements and materials for registration statementsrating agency presentations, offering documents, private placement memoranda, registration statements, bank information memoranda, prospectuses, rating agency presentations business projections and similar documents required used in connection with the Debt Financing (collectively, the “Marketing MaterialOffering Materials”) and providing customary estimates and other forward-looking financial information regarding the future performance of the business of the Company and its subsidiaries to the extent reasonably requested by the Debt Financing Sources, and providing customary authorization and management representation letters in connection therewith; provided, that any such Offering Materials need not be issued by the Company or any of its subsidiaries prior to the Closing;
(iii) using commercially reasonable efforts to cause its independent accountants to provide assistance and cooperation to Parent, including participating in a reasonable number of drafting sessions and accounting due diligence sessions related thereto, (C) delivering and consenting providing consents to Parent to use their audit reports relating to the inclusion or incorporation in Company and providing drafts of any SEC filing related customary “comfort letters” prior to the Financing commencement of any road show, which such accountants would be prepared to issue at the time of pricing and at closing of any offering or private placement of the Debt Financing (in the form of debt securities) pursuant to Rule 144A under the Securities Act;
(iv) assisting in the preparation of and executing and delivering definitive financing documents, including interest hedging arrangements, pledge and security documents, and certificates and other documents and back-up for legal opinions, in each case as applicable and to the extent reasonably requested by Parent, and otherwise reasonably facilitating the pledging of collateral; provided, that no obligation of the Company or any of its Subsidiaries shall be effective prior to the Closing;
(v) requesting and cooperating in obtaining customary lien terminations relating to any Indebtedness of the Company and its subsidiaries, to be effective no earlier than the Closing;
(vi) providing reasonable access during business hours by Parent and any Debt Financing Sources, and their respective officers, employees, consultants and advisors (including legal, valuation, and accounting advisors) to the books and records, properties, officers, directors, agents and representatives of the Company and its subsidiaries, subject to customary confidentiality provisions;
(vii) furnishing to Parent and the Debt Financing Sources all financial and other pertinent information regarding the Company and its subsidiaries as may be necessary in connection with any Debt Financing or otherwise reasonably requested by Parent promptly following such request to consummate the Debt Financing, including (A) all historical audited consolidated financial statements and unaudited consolidated interim historical financial statements of Allergan included or incorporated by reference into data regarding the Allergan SEC Documents Company and its subsidiaries, in each case (the “Historical Financial Statements”1) prepared in accordance with GAAP and (D2) delivering customary authorization lettersthat is required by Regulation S-X under the Securities Act and other accounting rules and regulations of the SEC) for inclusion in a registration statement to be filed with the SEC with respect to debt securities of Parent (as of and for the periods required thereby) (other than pursuant to Rule 3-09, management representation lettersRule 3-10 or Rule 3-16 of Regulation S-X), confirmationsor (B) such information regarding the Company and its subsidiaries (1) that is otherwise customarily included in private placement memoranda relating to offerings under Rule 144A of the Securities Act or bank information memoranda, as applicable, in each case of the type contemplated by the Debt Financing, and undertakings (2) as is otherwise necessary in order to receive customary “comfort” (including as to “negative assurance” comfort and change period) from the Company’s independent accountants in connection with offerings of debt securities (all such information described in this clause (vii) together with any replacements or restatements thereof and any supplements thereto if any such information would cease to be Compliant and, if necessary, consent of the Company’s auditors to make customary use of applicable information in connection with the Marketing Material Debt Financing, the “Required Financial Information”);
(viii) taking all actions reasonably requested to (A) permit the prospective lenders involved in each casethe Debt Financing to evaluate the Company’s and its subsidiaries’ assets, as applicablecash management and accounting systems, policies and procedures relating thereto, including inventory appraisals and field audits, for the purpose of establishing collateral arrangements and (B) establish bank and other accounts and blocked account contracts and lock box arrangements in connection with the foregoing, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie provided that no right of any Lender or its Financing Sources and customarily required in Marketing Material for Financings obligation of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan Company or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter subsidiaries thereunder shall be expressly conditioned on effective until the Completion)Closing;
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of prior to the Completion Date such Closing all documentation and other information about Allergan the Company and its Subsidiaries as is reasonably requested in writing subsidiaries required by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to applicable “know your customer” and anti-money laundering rules and regulations, regulations including without limitation, the USA PATRIOT ACT. Notwithstanding anything Patriot Act to the contrary extent requested at least ten (10) Business Days prior to the anticipated Closing; and
(x) subject to the occurrence of the Closing, taking all corporate actions necessary to permit consummation of the Debt Financing; provided, in each case under this Section 7.9(aclause (a), that nothing herein shall require (1) such cooperation to the extent it would unreasonably interfere with the business or Section 7.9(boperations of the Company or its subsidiaries, or (2) below, (A) none of Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action pursuant that would conflict with or violate (x) the Company Articles of Incorporation or By-laws, in each case that are not contingent upon the Effective Time or (y) any applicable Legal Requirement. The Company hereby consents to the use of its and its subsidiaries’ logos as may be reasonably necessary in connection with the Debt Financing.
(b) Notwithstanding anything in this Section 7.9(a) or Section 7.9(b) below 6.11 to the contrary, neither the Company nor any of its subsidiaries shall be required to (i) prior to the Closing bear any out-of-pocket cost or expense or pay any commitment fee in connection with the Debt Financing (provided that if any such fees or other fee or incur any liability (other than third-party costs expenses are incurred, Parent shall promptly reimburse such fees and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)request), (ii) execute incur any liability (or cause their respective directors, officers or employees to incur any liability) under the Debt Financing prior to the Closing; (iii) deliver any definitive financing documents legal opinions by its counsel or (iv) enter into any other agreement, certificate, document agreement or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case commitment that would be effective prior to the Completion Date or would be effective if the Completion does not occur Closing (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) other than such customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant and authorization letters referred to the in clause (i)(Da)(ii) above). Notwithstanding anything to the contrary, nothing in this Agreement shall prevent prior to the Closing Date (iiiA) provide access to any escrow arrangements in connection with an offering of high yield debt securities as part of the Debt Financing or disclose (B) the Debt Offer and Consent Solicitation in furtherance of the terms of Section 6.18. Parent shall indemnify and hold harmless the Company, its subsidiaries, and its and their respective officers, directors, employees, consultants, agents, advisors and representatives from and against any and all losses, damages, claims, costs or expenses suffered or incurred by any of them in connection with the Debt Financing and any information that Allergan utilized in connection therewith (other than any information provided in writing by the Company or any of its Subsidiaries reasonably determines would jeopardize subsidiaries specifically for use therein), in each case other than to the extent any attorney-client privilege of Allergan the foregoing arises from the bad faith, gross negligence or willful misconduct of the Company or any of its Subsidiaries subsidiaries or their respective Affiliates, officers, directors or employees.
(provided c) The Company shall deliver to Acquisition Sub on or prior to the Closing Date, payoff letters with respect to (i) the Third Amended and Restated Credit Agreement, dated as of January 21, 2011 (the “Credit Agreement”), by and among the Company, the lenders party thereto and JPMorgan Chase Bank, N.A., as administrative agent (as amended, supplemented, or otherwise modified from time to time) and (ii) the Credit Agreement (Second Lien), dated as of June 12, 2012 (the “Second Lien Credit Agreement”), between the Company and JPMorgan Chase Bank, N.A. (as amended, supplemented, or otherwise modified from time to time), which payoff letters shall substantially provide (subject to customary exceptions) (x) that Allergan shallin each case, upon receipt of the payoff amount set forth in the applicable payoff letter, the respective Indebtedness incurred thereunder and related instruments shall be automatically terminated and (y) that all Liens (and guarantees), if any, in connection therewith relating to the assets and properties of the Company or any of its subsidiaries securing such Indebtedness, shall be, upon the payment of the amount set forth in the payoff letter (and, if applicable, providing for letters of credit or cash collateral) be automatically released and terminated).
(d) The Company will use its commercially reasonable efforts to, and shall will cause its Subsidiaries subsidiaries to use commercially reasonable efforts to, use their respective upon the reasonable best efforts request of Parent, update any information provided by the Company regarding the Company and its subsidiaries (to cause the extent it is available) included in any offering document to be used in connection with the Debt Financing to the extent that such information to be disclosed in would, when taken as a manner that would not result whole in the loss absence of such an update, contain untrue statements of material fact or omit to state any such privilege)material fact necessary in order to make the statements contained therein not misleading. In addition, (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (exceptif, in connection with a marketing effort contemplated by the entry into an Allergan Supplemental Indenture required by Section 7.9(b)Commitment Letter, Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts Parent reasonably requests the Company to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver file a customary opinion of counsel Current Report on Form 8-K pursuant to the trustee under the applicable Indenture Exchange Act that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor contains material non-public information with respect to the Financing prior Company, which Parent reasonably desires to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result include in a customary offering memorandum for the Debt Financing, then the Company shall discuss in good faith whether the Company shall file a Current Report on Form 8-K or similar document containing such material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained in connection with syndication of the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover Rulesinformation.
Appears in 2 contracts
Samples: Merger Agreement (Elizabeth Arden Inc), Merger Agreement (Revlon Inc /De/)
Financing Cooperation. (a) Until the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan The Company shall use its reasonable best efforts, and shall cause each of its Subsidiaries to use its reasonable best efforts, and each of them shall use its their reasonable best efforts to cause its and their respective officers, employees and advisors and other Representatives, including legal and accounting advisors, Representatives to use their reasonable best efforts, to provide customary cooperation, to AbbVie and its Subsidiaries such assistance as may be the extent reasonably requested by AbbVie Parent in writing that is customary writing, in connection with the arrangingoffering, obtaining and syndication arrangement, syndication, consummation, issuance or sale of any Debt Financing or Alternative Financing obtained in accordance with Section 7.16 (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the FinancingCompany or any of its Affiliates), including including, to the extent so requested, using reasonable best efforts with respect to:
(i) participating in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect furnish promptly to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection with Parent the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmationsInformation, and undertakings in connection with such other financial information regarding the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan Company and its Subsidiaries as is reasonably requested by AbbVie or its Parent in connection with the Debt Financing;
(ii) provide reasonable and customary assistance to Parent and the Financing Sources and customarily required Parties in Marketing Material for Financings the preparation of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) customary offering documents, offering memoranda, offering circulars, private placement memoranda, registration statements, prospectuses, syndication documents and other syndication materials, including information memoranda, lender and investor presentations, bank books and other marketing documents, and similar documents for any portion of the type that would be required by Regulation S-X Debt Financing and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary materials for Financings of the applicable typerating agency presentations;
(iii) providing make senior management of the Company available, at reasonable times and locations and upon reasonable prior notice, to AbbVie’s legal counsel participate in meetings (including one-on-one conferences or virtual calls with Financing Parties and its independent auditors such customary documents potential Financing Parties), drafting sessions, presentations, road shows, rating agency presentations and due diligence sessions and other customary syndication activities; provided, at the Company’s option in consultation with Parent, any such meeting or communication may be conducted virtually by videoconference or other media;
(iv) cause the Company’s independent registered accounting firm to provide customary assistance, including by using reasonable best efforts to cause the Company’s independent registered accounting firm to provide customary comfort letters (including “negative assurance” comfort, if customary and appropriate) in connection with any capital markets transaction comprising a part of the Debt Financing, including at the time of pricing and closing, to the applicable Financing Parties and to participate in a reasonable number of due diligence sessions; provided, at the Company’s option, any such session may be conducted virtually by videoconference or other media, and including by using reasonable best efforts to provide customary representation letters to the extent required by such independent registered accounting firm in connection with the foregoing;
(v) provide customary authorization letters authorizing the distribution of Company information relating to Allergan prospective lenders in connection with a syndicated bank financing;
(vi) assist in obtaining or updating corporate and its Subsidiaries facility credit ratings;
(vii) assist in the negotiation and preparation of any credit agreement, indenture, note, purchase agreement, underwriting agreement, and such other customary closing certificates and schedules as may be reasonably requested by Parent, in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors each case as experts in any Marketing Material and registration statements and related government filings filed or used contemplated in connection with the Debt Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating make introductions of Parent to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date Company’s existing lenders and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters facilitate relevant coordination between Parent and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion)lenders;
(ix) procuring consents cooperate with internal and external counsel of Parent in connection with providing customary back-up certificates and factual information regarding any legal opinion that such counsel may be required to the reasonable use of all of Allergan’s logos deliver in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); andDebt Financing;
(x) providing deliver, at least three (3) Business Days in advance of prior to Closing, to the Completion Date such documentation and other information about Allergan and its Subsidiaries as is extent reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of prior to Closing, all documentation and other information regarding the Completion Date in connection with the Company and its Subsidiaries that any Financing that relates to Party reasonably determines is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Notwithstanding anything Act of 2001, and, to the contrary extent required by any Financing Party, a beneficial ownership certificate (substantially similar in this Section 7.9(aform and substance to the form of Certification Regarding Beneficial Owners of Legal Entity Customers published jointly, in May 2018, by the Loan Syndications and Trading Association and Securities Industry and Financial Markets Association) in respect of any of the Company or Section 7.9(bany of its Subsidiaries that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation (31 C.F.R. § 1010.230); and
(xi) belowconsent 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 or the Company’s or its Subsidiaries’ reputation or goodwill.
(Ab) The foregoing notwithstanding, none of Allergan the Company nor any of its Subsidiaries Affiliates shall be required to take or permit the taking of any action pursuant to Section 7.14 or this Section 7.9(a) or Section 7.9(b) below to 7.15 that would: (i) pay require the Company or its Subsidiaries or any commitment of their respective Affiliates or other fee any persons who are officers or incur any liability directors of such entities to pass resolutions or consents to approve or authorize the execution of the Debt Financing (other than third-party costs and expenses that are resolutions or consents to be promptly reimbursed by AbbVie upon request by Allergan pursuant approve or authorize entry into any supplemental indenture necessary to Section 7.9(c))consummate the Debt Offer) or enter into, (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document document, instrument or instrument, agreement or agree to any change to or modification of any existing agreement, certificate, document document, instrument or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur agreement (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or other than any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, supplemental indenture entered into in connection with any Debt Offer) notices of prepayment or redemption that are conditioned on Closing in accordance with Section 7.14, and the entry into an Allergan Supplemental Indenture required authorization letters contemplated by Section 7.9(b7.15(a)(v), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, ; (ii) cause any representation or warranty in this Agreement to be breached by Allergan the Company or any of its Subsidiaries Affiliates; (unless waived by AbbVie)iii) require the Company or any of its Affiliates to (x) pay any commitment or other similar fee, (iiiy) incur any other expense, liability or obligation which expense, liability or obligation is not reimbursed or indemnified hereunder in connection with the Debt Financing prior to the Closing or (z) have any obligation of the Company or any of its Affiliates under any agreement, certificate, document or instrument be effective until the Closing; (iv) cause any director, officer or officer, employee or shareholder stockholder of Allergan the Company or any of its Subsidiaries Affiliates to incur any personal liability liability; (v) conflict with the Organizational Documents of the Company or any of its Affiliates or any Laws; (ivvi) reasonably be expected to result in a material violation or material breach of, or a default (with or without notice, lapse of time, or both) under, any material Contract to which Allergan the Company or any of its Subsidiaries Affiliates is a party, party (other than the Organizational Documents Change of Allergan Control under and as defined in the Company Credit Agreements and the 2027 Notes Indenture resulting from the consummation of the Merger); (vii) provide access to or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential disclose information provided by or on behalf of Allergan that the Company or any of its Affiliates determines would jeopardize any attorney-client privilege or other applicable privilege or protection of the Company or any of its Affiliates; (viii) require the Company to prepare any financial statements or information (other than the Financing Information) that are not available to it and prepared in the ordinary course of its financial reporting practice; or (ix) require the Company to prepare or deliver any Excluded Information. Nothing contained in Section 7.14, this Section 7.15 or otherwise shall require the Company or any of its Affiliates, prior to the Closing, to be an issuer or other obligor with respect to the Debt Financing. Parent shall, promptly on request by the Company, reimburse the Company or any of its Affiliates for all reasonable and documented out-of-pocket costs incurred by them or their respective Representatives in connection with such cooperation and with any action taken in accordance with Section 7.14 and shall indemnify and hold harmless the Company and its Affiliates and their respective Representatives from and against any and all losses suffered or incurred by them in connection with the arrangement of the Debt Financing, any action taken by them in accordance with Section 7.14 or this Section 7.15 and any information used in connection therewith.
(c) The Parties hereto acknowledge and agree that the provisions contained in this Section 7.15 represent the sole obligation of the Company and its Subsidiaries with respect to cooperation in connection with the arrangement of any financing (including the Debt Financing) to be obtained by Parent with respect to the transactions contemplated by this Agreement, and no other provision of this Agreement (including the Exhibits and Schedules hereto) shall be deemed to expand or modify such obligations. In no event shall the receipt or availability of any funds or financing (including the Debt Financing) by Parent, any of its Affiliates or any other financing or other transactions be a condition to any of Parent’s obligations under this Agreement. Notwithstanding anything to the contrary in this Agreement, the Company’s breach of any of the covenants required to be performed by it under this Section 7.15 shall not be considered in determining the satisfaction of the condition set forth in Section 8.2(b), unless such breach is the primary cause of Parent being unable to obtain the proceeds of the Debt Financing at the Closing.
(d) In addition, if, in connection with a marketing effort contemplated by the Debt Commitment Letter, Parent reasonably requests the Company to file a Current Report on Form 8-K pursuant to the Exchange Act that contains material non-public information which Parent in consultation with the Financing Parties and with the consent of the Company reasonably determines to include in a registration statement, customary offering memorandum or other offering document for the Debt Financing, then the Company shall promptly file such Current Report on Form 8-K.
(e) All nonpublic or otherwise confidential information regarding the Company or any of its Affiliates obtained by Parent or its Representatives pursuant to this Section 7.9 to 7.15 shall be kept confidential in accordance with the Confidentiality Agreement and the Clean Team Agreement; provided, provided that Allergan acknowledges Parent shall be permitted to disclose such information to (i) the Financing Entities subject to their confidentiality obligations under the Debt Commitment Letters and agrees that the confidentiality undertakings that will be obtained definitive documentation evidencing the Debt Financing and (ii) otherwise to the extent necessary and consistent with customary practices in connection with syndication of the Debt Financing will be in a form subject to customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover Rulesconfidentiality arrangements.
Appears in 2 contracts
Samples: Merger Agreement (Baxter International Inc), Merger Agreement (Hill-Rom Holdings, Inc.)
Financing Cooperation. (a) Until Subject to Section 7.13(b) and (c), prior to the earlier of Closing, the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan Company shall use its reasonable best efforts, and shall cause each of its Subsidiaries efforts to use its reasonable best effortsprovide, and shall use its reasonable best efforts to cause its Subsidiaries and their respective officers, employees employees, consultants and advisors and other Representativesadvisors, including legal and accounting advisorsadvisors to, provide, at Parent’s sole cost and expense, to use their reasonable best efforts, to provide to AbbVie and its Subsidiaries such assistance Parent all cooperation as may be reasonably requested by AbbVie in writing that is customary Parent in connection with the arranging, obtaining and syndication of the Debt Financing, including using reasonable best efforts with respect to:
(i) participating in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of senior management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, and due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations mutually agreed and reasonably acceptable to Allergan and upon reasonable noticecoordinated in advance thereof, (Bii) reasonably assisting with AbbVie’s the preparation of customary materials (to the extent relating to the Company and its Subsidiaries) for registration statementsrating agency presentations, information and offering documents, private placement memoranda, bank information memorandalender presentations, prospectuses, rating agency presentations and similar marketing documents required to be used in connection with the Financing (collectivelyDebt Financing, “Marketing Material”) including customary comfort and due diligence sessions related theretoauthorization letters, (C) delivering and consenting to the inclusion or incorporation in any SEC filing such information and data related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan Company and its Subsidiaries as is reasonably requested required by AbbVie Parent for Parent to produce the financial statements and information identified in paragraph 6 of Exhibit C of the Debt Commitment Letter or its Financing Sources and customarily otherwise required in Marketing Material for Financings of connection with the applicable typeDebt Financing, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries assisting in the preparation of definitive financing documents, as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
by Parent, (iv) causing Allergan’s independent auditors to provide customary cooperation with facilitating the pledging of collateral for the Debt Financing;
, (v) obtaining customary payoff letters, lien terminations and instruments of discharge in respect of the consents of Allergan’s independent auditors to use their audit reports payoff, discharge and termination on the audited Historical Financial Statements Closing Date of Allergan and to references to such independent auditors all obligations under the Company Credit Agreement, including releases of liens relating thereto, in each case as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
reasonably requested by Parent, (vi) obtaining Allerganusing commercially reasonable efforts to ensure that the syndication efforts for the Debt Financing benefit from the Company’s independent auditors’ customary comfort letters existing lending and assistance with the accounting due diligence activities of the Financing Sources;
banking relationships, (vii) causing using commercially reasonable efforts in assisting Parent in its efforts to obtain corporate credit or family ratings of Parent to the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
extent reasonably requested by Parent, (viii) providing as promptly as practicable after reasonable request therefor, furnishing the Financing Sources with reasonable documents or other information reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan Company and its Subsidiaries as is reasonably requested in writing required by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection bank regulatory authorities with respect to the Financing that relates to under applicable “know your customer” and anti-money laundering rules and regulations, including without limitationthe U.S.A. Patriot Act of 2011 and (ix) cooperating with Parent to satisfy the conditions precedent to the Debt Financing to the extent reasonably requested by Parent and within the control of the Company and its Subsidiaries, and taking all corporate actions, subject to the occurrence of the Closing, reasonably requested by Parent to permit the consummation of the Debt Financing and taking all corporate actions, subject to the occurrence of the Closing, reasonably requested by Parent to permit the consummation of the Debt Financing. Without limiting the generality of the foregoing, the USA PATRIOT ACTCompany shall ensure that all financial and other projections concerning the Company and its Subsidiaries that are made available to Parent after the date of this Agreement are prepared in good faith. The Company consents to the use of its logos in connection with the Debt Financing; provided that such logos shall be used solely in a manner that is not intended or reasonably likely to harm, disparage or otherwise adversely affect the Company or any of its Subsidiaries.
(b) Notwithstanding anything in this Agreement to the contrary in this Section 7.9(a) or Section 7.9(b) belowcontrary, (Ax) none of Allergan neither the Company nor any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 7.9(athe extent it would (1) interfere unreasonably with the business or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents operations of the Company or any other agreement, certificate, document of its Subsidiaries (2) require the Company or instrument, any of its Subsidiaries or any of their respective Affiliates to pay (or agree to pay) any change to fees, or modification of reimburse any existing agreement, certificate, document or instrument, in each case that would be effective expenses prior to the Completion Date Closing for which it is not promptly reimbursed, or would be effective if the Completion does not occur (except (x) otherwise incur any other obligations or give any indemnities prior to the extent required by Section 7.9(b), applicable Allergan Supplemental IndenturesClosing that are not contingent on the Closing, (y3) customary officers’ certificates relating cause any representation or warranty or covenant in this Agreement to be breached by the execution thereof that would not Company or any of its Subsidiaries, (4) cause any director, officer or employee of the Company or any of its Subsidiaries to incur any personal liability, (5) conflict with applicable Law and would be accurate in light the organizational documents of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above)Company or any of its Subsidiaries or any Laws, (iii6) result in the contravention or breach of, or default under, any Material Contract, (7) provide access to or disclose information that Allergan the Company or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan the Company or any of its Subsidiaries, or (8) prepare separate financial statements for any Subsidiary of the Company or change any fiscal period; or (y) none of the Company, any of its Subsidiaries or any of their respective directors or officers shall be obligated to adopt resolutions or execute consents to approve or authorize the execution of the Debt Financing; provided that this clause (y) shall not prohibit the adoption or execution of any resolutions or consents effective no earlier than the Closing Date by any persons that shall remain or will become officers or directors of the Company or any of its Subsidiaries as of the Effective Time; and (provided that Allergan shall, and shall cause z) any documentation executed by the Company of any of its Subsidiaries toshall not become effective until the Effective Time. Parent shall (1) promptly upon request by the Company, use reimburse the Company for all reasonable out-of-pocket costs and expenses (including attorney’s fees) incurred by the Company or any of its Subsidiaries and their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege)Representatives, (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (exceptas applicable, in connection with the entry into an Allergan Supplemental Indenture required Debt Financing and providing the assistance contemplated by this Section 7.9(b7.13 and (2) indemnify and hold harmless the Company and its Subsidiaries and its and their respective Representatives (collectively, the “Financing Indemnitees”) from and against any and all liabilities, losses, damages, claims, costs, expenses (including attorney’s fees), Allergan shallawards, judgments and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan penalties suffered or its Subsidiaries, as applicable, to deliver a customary opinion incurred by any of counsel to them in connection with the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan Debt Financing and any information used in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate or providing the assistance contemplated by this Section 7.13, in light each case other than to the extent any of the facts and circumstances at foregoing arises from the time delivered)fraud, intentional misrepresentation or willful misconduct of such Financing Indemnitee, as finally determined by a court of competent jurisdiction (the obligations of Parent in this clause (2), (v) be an issuer or other obligor with respect to the “Financing prior to Cooperation Indemnity”). The Financing Cooperation Indemnity shall survive the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none consummation of the Allergan Board, officers Merger and any termination of Allergan, this Agreement.
(c) All non-public or directors and officers of otherwise confidential information regarding the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan Company or any of its Affiliates and Subsidiaries (unless waived obtained by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan Parent or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan or any of its Subsidiaries Affiliates or Representatives pursuant to this Section 7.9 to 7.13 shall be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained in connection with syndication of the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover Rules.
Appears in 2 contracts
Samples: Merger Agreement (Microsemi Corp), Merger Agreement (PMC Sierra Inc)
Financing Cooperation. (a) Until From the earlier of the Completion and the valid termination date of this Agreement pursuant to and in accordance with Article 9until Closing, Allergan the Company shall use its commercially reasonable best effortsefforts to, and shall cause each of its Subsidiaries to use its reasonable best effortsAffiliates to, and shall use its reasonable best efforts to cause its and their respective officers, employees and advisors and other Representatives, including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie and its Subsidiaries such assistance as may be all cooperation reasonably requested by AbbVie Parent (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and its Affiliates beyond the level of involvement ordinarily required in writing that is customary similar financing transactions) in connection with obtaining the arranging, obtaining and syndication of financing contemplated by the FinancingDebt Commitment Letter, including using reasonable best efforts with respect to:
(i) participating in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting due diligence sessions, due diligence drafting sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (Bii) assisting with AbbVie’s the preparation of customary materials for registration statementsrating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations business projections and similar documents required in connection with the financing contemplated by the Financing Commitments; provided that any private placement memoranda or prospectuses shall contain disclosure and financial statements reflecting the Surviving Corporation and/or its Affiliates as the obligor, (collectivelyiii) using commercially reasonable efforts to cause its independent accountants to provide assistance and cooperation to Parent, “Marketing Material”) including participating in a reasonable number of drafting sessions and accounting due diligence sessions related theretosessions, (Civ) executing and delivering any pledge and consenting to the inclusion security documents, currency or incorporation in any SEC filing related to the Financing interest hedging arrangements or other definitive financing documents or other certificates, legal opinions and documents as may be reasonably requested by Parent (including certificates of the historical audited consolidated chief financial officer or any of the Company’s Affiliates with respect to financing matters) or otherwise facilitating the pledging of collateral as may be reasonably requested by Parent; provided that any obligations contained in such documents shall be effective no earlier than as of the Effective Time, (v) furnishing Parent and Merger Sub and their financing sources as promptly as practicable with financial and other pertinent information regarding the Company and its Affiliates as may be reasonably requested by Parent, including all financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) data of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities ActK, including audit reports of annual financial statements audits thereto to the extent so required (which audit reports audits shall not be subject to any “going concern” qualificationsunqualified), or under the Securities Act and of the type and form customarily included in offering documents used in private placements under Rule 144A of the Securities Act, to consummate the offerings of debt securities contemplated by the Debt Commitment Letter (information required to be delivered pursuant to this clause (v) being referred to as, the “Required Financial Information”), (vi) obtaining accountants’ comfort letters, accountants’ consents, legal opinions, surveys and title insurance as reasonably requested by Parent, (vii) taking all actions reasonably necessary to (A) permit the lenders under the Debt Commitment Letter to evaluate the Company’s and its Affiliates’ current assets, cash management and accounting systems, policies and procedures relating thereto for the purpose of establishing collateral arrangements, and (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents establish bank and other customary information relating to Allergan accounts and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions blocked account agreements and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used lock box arrangements in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters foregoing, provided that such accounts, agreements and assistance with arrangements will not become active or take effect until the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
Effective Time, (viii) providing documents entering into one or more credit or other agreements on terms reasonably satisfactory to Parent in connection with the financing contemplated by the Debt Commitment Letter; provided that neither the Company nor any of its Affiliates shall be required to enter into any agreement that is not contingent upon the Closing (including the entry into any purchase agreement), and (ix) take all corporate actions, subject to the occurrence of the Effective Time, reasonably requested by AbbVie Parent to permit the consummation of the financing contemplated by the Debt Commitment Letter and the direct borrowing or incurrence of all of the Financing Sources relating to proceeds of the repayment or refinancing of any indebtedness for borrowed money of Allergan or financing contemplated by the Debt Commitment Letter. Neither the Company nor any of its Subsidiaries Affiliates shall be required to be repaid pay any commitment or refinanced on other similar fee or incur any other liability in connection with the Completion Date and financing contemplated by the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (Commitments prior to the extent required) evidence that notice Effective Time. Parent and Merger Sub shall, on a joint and several basis, indemnify and hold harmless the Company and its Affiliates for and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred by them in connection with the arrangement of the financing contemplated by the Commitments and any such repayment has been timely delivered information utilized in connection therewith. Notwithstanding anything to the holders contrary, the condition set forth in Section 6.3(b) of such indebtednessthis Agreement, in each case in accordance with as it applies to the terms Company’s obligations under this Section 5.12, shall be deemed satisfied unless the financing contemplated by the Debt Commitment Letter (or any alternative financing) has not been obtained as a result of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring Company’s willful and material breach of its obligations under this Section 5.12. The Company hereby consents to the reasonable use of all of Allergan’s its and its Affiliates’ logos in connection with the Financing (financing contemplated by the Commitments; provided that such logos are used solely in a manner that is not intended to and is not or reasonably likely to harm or disparage Allergan the Company or any of its Subsidiaries Affiliates or the reputation or goodwill of Allergan the Company or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACTAffiliates. Notwithstanding anything to the contrary in this Section 7.9(a) or Section 7.9(b) below, (A) none of Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all All non-public or other otherwise confidential information provided regarding the Company and its Affiliates obtained by Parent or on behalf of Allergan or any of its Subsidiaries or the Parent Representatives pursuant to this Section 7.9 to 5.12 shall be kept confidential by Parent in accordance with the Confidentiality Agreement; provided. Notwithstanding the foregoing sentence, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained any offering documents, private placement memoranda, bank information memoranda, prospectuses or other documents prepared pursuant to this Section 5.12 shall contain such information as is customarily contained in connection with syndication of the Financing will be in a form customary documents for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover Rulessimilar financing transaction.
Appears in 2 contracts
Samples: Merger Agreement (Radiation Therapy Services Inc), Merger Agreement (Vestar Capital Partners v L P)
Financing Cooperation. (a) Until Prior to Closing, upon the earlier reasonable request of Parent, the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan shall use its reasonable best effortsCompany shall, and shall cause each of its Subsidiaries to use its reasonable best effortsto, and shall use its reasonable best efforts to cause its and their respective officersRepresentatives who are not officers or employees of the Company or its Subsidiaries to, employees and advisors and other Representativesin each case, including legal and accounting advisors, to use their reasonable best efforts, efforts to provide to AbbVie and its Subsidiaries such assistance as may be reasonably requested by AbbVie in writing that is customary cooperate with Parent in connection with the arranging, obtaining and syndication of the any Financing, including using any offering of securities, requested repayment or refinancing of Indebtedness, and such reasonable best efforts with respect to:
shall include: (i) participating in and assisting with the due diligence, syndication or other marketing causing management teams of the FinancingCompany, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority and expertise, at reasonable times and upon reasonable advance notice, to participate in a reasonable number of meetings, rating agency presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lendersroad shows, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
if any; (ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary providing information with respect to Allergan the Company and its Subsidiaries to Parent and its Representatives (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if including the Financing were incurred Sources) as reasonably requested by AbbVie Parent; (iii) preparing and registered furnishing to Parent on Form S-3 under a timely basis the Securities ActRequired Information, which shall be prepared in accordance with applicable securities Laws, and other financial data (including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) such information reasonably necessary to permit AbbVie allow Parent to prepare pro forma financial statements customary for Financings of in accordance with applicable securities Laws) and such other financial information concerning the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan Company and its Subsidiaries as may be reasonably requested by Parent, including, without limitation, balance sheet, income statements and statements of cash flows for each subsequent interim financial quarter ended at least forty-five (45) days prior to the Closing Date; (iv) assisting in connection the preparation of offering memoranda, private placement memoranda, prospectuses, prospectus supplements, bank confidential information memoranda, rating agency presentations, marketing materials (within the meaning of applicable securities Laws) and similar documents (“Offering Documents”); (v)
(A) using its reasonable best efforts to cause Deloitte or other relevant accountants of the Company and its respective Subsidiaries to cooperate with their delivery of any customary negative assurance opinions Parent, including by participating in drafting sessions and accounting due diligence sessions, and using its reasonable best efforts to obtain the consent of, and customary comfort letters relating from, such accountants to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used extent required in connection with any offering of securities by Parent if necessary for Parent’s use of financial statements of the Company or its Subsidiaries on a timely basis and (B) cooperating with Parent’s legal counsel in connection with any legal opinions that such counsel may be required to deliver in connection with any Financing;
; (vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with assisting in the accounting due diligence activities amendment or novation of any Derivative Transaction of the Financing Sources;
Company or its Subsidiaries, in each case, on terms that are reasonably requested by Parent; provided that no obligation of the Company or its Subsidiaries under any such amendments or novations shall be effective until the Closing Date; (vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of furnishing promptly all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries required by any Governmental Authority or as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the any Financing that relates to Source under applicable “know your customer,” anti-bribery and anti-money laundering rules and regulations, including without limitationthe PATRIOT Act, the USA PATRIOT ACT. Notwithstanding anything Foreign Corrupt Practices Act of 1977, as amended, 15 U.S.C. §§ 78dd 1 et seq., and economic sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department to the contrary extent requested at least seven (7) Business Days prior to Closing; (viii) in this Section 7.9(aconnection with any Financing, executing and delivering any definitive financing documents as reasonably requested by Parent and delivering such officer’s certificates (other than any solvency certificate) as are customary in financings of such type and as are, in the good faith determination of the persons executing such officer’s certificates, accurate; provided that no obligation of the Company or Section 7.9(b) below, (A) none of Allergan nor any of its Subsidiaries under any such definitive financing documents, including any pledge and security documents, shall be required to take or permit effective until the Closing Date; (ix) causing the taking of any action pursuant corporate, limited liability company or partnership actions, as applicable, by the Company or its Subsidiaries reasonably necessary to permit the completion of any Financing; (x) seeking to obtain customary payoff letters, lien terminations and releases and instruments of discharge to be delivered at Closing providing for the payoff, discharge and termination on the Closing Date of all Indebtedness and release of Encumbrances contemplated by any repayment or refinancing of such Indebtedness to be paid off, discharged and terminated on the Closing Date; provided that the documents in respect of such arrangements contemplated by this clause (x) shall not need to be effective until the Closing Date; and (xi) using reasonable best efforts to ensure that the syndication efforts in respect of any Financing benefit from the Company’s existing lending and investment banking relationships. If at any time any information in any Offering Document should be discovered by the Company or any of its Representatives that should be set forth in an amendment or supplement to such Offering Document, so that such Offering Document shall not contain an untrue statement of a material fact, omit to state a material fact that is required to be stated therein or omit to state a material fact that is necessary to be stated therein in order for a statement not to be misleading, the Company shall promptly notify Parent thereof and provide any such information to be set forth in such amendment or supplement.
(b) Nothing in this Section 7.9(a) or Section 7.9(b) below to 5.15 shall (i) require any such cooperation to the extent that it would (A) require the Company to pay any commitment or other fee fees (unless promptly reimbursed in accordance with Section 5.15(c)) or otherwise incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute liabilities or deliver give any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case indemnities that would be effective prior to the Completion Date Closing (other than such liabilities referred to in Section 5.15(c)(i) or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered5.15(c)(ii)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) unreasonably interfere unreasonably with the ongoing business or operations of Allergan the Company or its Subsidiaries, (iiC) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan require the Company or any of its Subsidiaries to incur enter into or approve any personal liability agreement or other documentation that would be effective prior to the Closing or agree to any change or modification of any existing agreement or other documentation that would be effective prior to the Closing, (D) require the Company, any of its Subsidiaries or any of their respective boards of directors (or equivalent bodies) to approve or authorize any Financing, (E) cause any condition to the Closing set forth in Section 6.1 or Section 6.2 to not be satisfied or (ivF) conflict with or violate the Company’s or its Subsidiaries’ respective Organizational Documents or any applicable Law in any material respect or result in a material violation or breach of, or a default under, any material Material Contract or (ii) require the Company to which Allergan cause the delivery of legal opinions or reliance letters or any of certificate as to solvency.
(c) Promptly upon the Company’s request, all reasonable and documented out-of-pocket fees and expenses incurred by the Company and its Subsidiaries in connection with the activities set forth in Section 5.15(a) shall be paid or reimbursed by Parent, and Parent shall indemnify and hold harmless the Company and its Subsidiaries from and against any claim, loss, damage, injury, liability, judgment, award, penalty, fine, Tax, cost (including cost of investigation), expense (including reasonable fees and expenses of counsel and accountants) or obligation suffered or incurred by them in connection with any Financing and any information utilized in connection therewith (other than (i) with respect to information relating to the Company and its Subsidiaries provided by the Company in writing for use in the Offering Documents to the extent any such obligation is a partyresult of any such information containing an untrue statement of a material fact, omitting to state a material fact that is required to be stated therein or omitting to state a material fact that is necessary to be stated therein in order for such information not to be misleading and (ii) to the Organizational Documents extent such liability or obligation arise from gross negligence or bad faith of Allergan or the Company and its Subsidiaries or a Willful and Material Breach by the Company.
(d) Notwithstanding anything in this Agreement to the contrary, in no event will any applicable Law. AbbVie shall cause all non-public failure by the Company to comply with this Section 5.15 be used by Parent or other confidential information provided by Merger Sub as a basis to (x) terminate this Agreement pursuant to Section 7.1(c)(i), except to the extent the Company has acted in bad faith or on behalf of Allergan or any of committed a Willful and Material Breach with respect to its Subsidiaries or Representatives obligations pursuant to this Section 7.9 5.15 or (y) assert the failure of the condition set forth in Section 6.2(b) to be kept confidential satisfied, except to the extent that (A) such failure by the Company to comply with this Section 5.15 is related to a Financing Failure or (B) the Company has acted in accordance bad faith or committed a Willful and Material Breach with respect to its obligations pursuant to this Section 5.15.
(e) Without limiting the Confidentiality Agreementgenerality of the foregoing, promptly following Parent’s request, the Company shall deliver a notice (an “Existing Loan Notice”) prepared by Parent, which notice shall be in form and substance reasonably acceptable to the Company, to the lenders under the Company’s and its Subsidiaries’ then existing credit facilities or term loans specified in such Existing Loan Notice (the “Existing Loan Lenders”) notifying each of such Existing Loan Lenders of this Agreement and the contemplated Merger. At Parent’s election, the Existing Loan Notice to certain Existing Loan Lenders may include a request for a consent, which request shall be in form and substance reasonably acceptable to the Company, to (i) the consummation of the Transactions, and (ii) certain modifications of (or waivers under or other changes to) the documentation governing the relevant Indebtedness held by such Existing Loan Lenders; provided, that Allergan acknowledges and agrees that no such modifications, waivers or changes shall be effective prior to the confidentiality undertakings that will be obtained in connection with syndication of the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover RulesEffective Time.
Appears in 2 contracts
Samples: Merger Agreement, Merger Agreement (Washington Gas Light Co)
Financing Cooperation. (a) Until From the earlier of date hereof until the Completion Closing, the Company shall, shall cause its Subsidiaries and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan shall use its reasonable best efforts, and shall cause each of its Subsidiaries to use its reasonable best effortsJoint Venture Entities to, and shall use its commercially reasonable best efforts to cause its and their respective officersRepresentatives to, employees use commercially reasonable efforts to provide, on a timely basis, at Parent’s and advisors Merger Sub’s sole cost and other Representativesexpense, including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie and its Subsidiaries such assistance as may be all customary cooperation reasonably requested by AbbVie Parent or Merger Sub or any Financing Source to assist Parent, Merger Sub and their Affiliates in writing that is customary causing the conditions to any bank debt financing or any capital markets debt or equity financing deemed necessary or appropriate by the Parent or Merger Sub including for the purposes of financing the payment of the Merger Consideration, Preferred Share Consideration, refinancing any existing indebtedness of the Company, its Subsidiaries and the Joint Venture Entities, and any other amounts required to be paid in connection with the arrangingconsummation of the Transactions (collectively, obtaining the “Financing”) to be satisfied, which requested cooperation may include using commercially reasonable efforts in connection with:
(i) providing reasonable cooperation with customary syndication or other marketing efforts, or a customary offering, of Parent and syndication Merger Sub for all or any portion of the Financing, including using reasonable best efforts access to documents and other information in connection with respect to:
(i) participating in customary due diligence investigations and assisting with the due diligencecausing its management team, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority and expertise, to assist in a reasonable number of meetings, presentations, road shows, drafting sessionsmarketing materials, due diligence sessions, drafting sessions and sessions with prospective lendersrating agencies;
(ii) upon reasonable advance notice and during normal business hours, investors (A) providing Parent, Merger Sub and/or the Financing Sources with the (x) audited combined balance sheets and related statements of income and cash flows of the Company and its consolidated subsidiaries for the two most recently completed fiscal years ended at least 90 days prior to the Closing Date and (y) unaudited combined balance sheets and related statements of income and cash flows of the Company and its consolidated subsidiaries for each fiscal quarter ended after the most recent audited financial statements delivered pursuant to clause (x) and furnishing to Parent, Merger Sub and/or the Financing Sources, upon their reasonable request therefor, such other information regarding the Company, including other financial information reasonably necessary for the preparation of pro forma financial statements and information regarding the Company’s current assets, cash management and accounting systems, policies and procedures relating thereto for purposes of establishing collateral arrangements as of the Closing and to assist with other collateral audits and due diligence examinations, and (B) providing reasonable assistance to Parent’s preparation of pro forma financial information and projections required to consummate the Financing;
(iii) no later than March 16, 2021, providing the Company’s audited consolidated financial statements, including a balance sheet, statements of operations, stockholders’ equity and cash flows as of and for the fiscal year ended December 31, 2020;
(iv) upon reasonable advance notice and during normal business hours, providing reasonable assistance to Parent and Merger Sub (including by causing its management team, with appropriate seniority and expertise, to participate in a reasonable number of meetings, presentations, drafting sessions and sessions with the Financing Sources and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s in the preparation of customary materials for registration statementsrating agency presentations, road show materials, lender information memoranda and other presentations, prospectuses and bank syndication materials, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations memoranda and similar documents required (which may incorporate, by reference, periodic and current reports filed by the Company with the SEC) in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in marketing of any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications)syndication, or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements a customary for Financings offering, of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery all or a portion of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens furnishing Parent and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing Merger Sub at least three four (34) Business Days in advance of prior to the Completion Closing Date such with all documentation and other information about Allergan required and its Subsidiaries as is reasonably requested in writing by AbbVie the parties acting as lead arrangers for, or lenders under, the Financing at least ten (10) Business Days in advance of prior to the Completion Date in connection with the Financing that relates to Closing under applicable “know your customer” and anti-money laundering rules and regulationsregulations and the USA Patriot Act of 2001;
(vi) requesting that the Company’s independent accountants participate in accounting due diligence sessions and cooperate with the Financing consistent with their customary practice, including without limitationrequesting that the Company’s independent accountants provide customary comfort letters (including “negative assurance” comfort, if permitted) and consents for use of their reports to the USA PATRIOT ACT. extent required in connection with the marketing and syndication of the Financing or as are customarily required in an offering of debt, equity or equity-linked securities;
(vii) cooperation with Parent and Merger Sub and their respective efforts to obtain customary corporate, facilities and securities ratings;
(viii) providing customary authorization letters to the arrangers in respect of the Financing authorizing the distribution of information to prospective lenders;
(ix) subject to Section 5.13(b) taking all reasonable and customary corporate action, limited liability company action or other organizational action, as applicable, subject to the occurrence of the Closing, necessary to permit and/or authorize the consummation of the Financing;
(x) reasonable facilitation (through providing and executing customary agreements, documents or certificates) of the pledge and perfection of liens and security interests in connection with the Financing, as may be reasonably requested by Parent and/or Merger Sub (provided that no obligation under any such document or agreement will take effect until the Closing);
(xi) providing all cooperation that is reasonably necessary to satisfy the conditions precedent to any documents relating to the Financing, but solely to the extent the satisfaction of such conditions requires the cooperation of, or is within the control of the Company, its Subsidiaries or its Representatives, including ensuring that any financial information is compliant with applicable SEC rules and requirements, and compliant with customary required terms of a debt commitment letter or similar document and updated as necessary to avoid staleness in accordance with applicable SEC rules and requirements, and free of any material misstatement or omission;
(xii) otherwise providing cooperation that is customary and reasonable in connection with the marketing efforts of Parent, Merger Sub and the Financing Sources; and
(xiii) to the use of its trademarks and logos in connection with the Financing; provided, that such trademarks and logos are used solely in a manner that is not intended to or reasonably likely to harm or disparage the Company or any of its Affiliates or the reputation or goodwill of the Company or any of its Affiliates.
(b) Notwithstanding anything in this Agreement to the contrary in this Section 7.9(a) or Section 7.9(b) below, contrary:
(Ai) none of Allergan nor the Company, its Affiliates or their respective Representatives (at any of its Subsidiaries time) shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee similar fee, incur or reimburse any costs or expenses or incur any other liability or obligation of any kind that is effective prior to the occurrence of the Closing or give any indemnities prior to the Closing in connection with the Financing (other than thirdexcept reasonable and documented out-party of-pocket costs and expenses that are to be the extent Parent or Merger Sub promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(creimburses the Company therefor)), ;
(ii) execute or deliver any definitive financing documents none of the Company or any other agreementof the Affiliates shall be required to (A) execute, certificateenter into, document approve or instrumentperform any binding agreement or commitment, or agree to any change to or modification of any existing agreement, binding agreement or commitment or incur any other actual or potential liability or obligation in connection with the Financing that is not subject to the occurrence of the Closing or (B) adopt any resolution or otherwise take any corporate or similar action or deliver any certificate, document approving or instrument, in each case authorizing the Financing that would be is effective prior to the Completion Date Closing;
(iii) nothing shall obligate the Company or would any Affiliate to provide, or cause to be effective if the Completion does not occur (except (x) provided, any legal opinion or to provide, or cause to be provided, any information or take, or cause to be taken, any action to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, doing so could reasonably be expected to (yA) customary officers’ certificates relating to the execution thereof that would not result in a conflict with or a violation of applicable Law and would be accurate in light of Law, Company’s or any Affiliate’s organizational documents or any agreement binding on the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan Company or any of its Subsidiaries reasonably determines would Affiliates or any confidentiality obligations binding on the Company or any of its Affiliates, (B) subject the Company to actual or potential liability, to bear any cost or expense or to pay any commitment or other similar fee or make any other payment (other than documented and reasonable out-of-pocket costs that are reimbursed by Parent or Merger Sub) or incur any other liability of any kind or provide or agree to provide any indemnity, (C) subject any director, manager, officer or employee of the Company or any of its Affiliates to any actual personal liability or (D) jeopardize any attorney-client privilege privilege; and
(iv) no action, liability or obligation (including any obligation to pay any commitment or other fees or reimburse any expenses) of Allergan the Company and its Representatives under any certificate, agreement, arrangement, document or instrument relating to the Financing shall be effective until the Closing.
(c) The Company and its Representatives shall not be obligated in connection with performing their obligations under this Section 5.13 to take or refrain from taking any action that would unreasonably interfere with ongoing business or operations of the Company or any of its Subsidiaries (provided that Allergan shallAffiliates. Parent and/or Merger Sub shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses incurred by the Company or any of the Affiliates in connection with the cooperation of the Company, the Affiliates and their respective Representatives contemplated by this Section 5.13 and shall cause its Subsidiaries toindemnify and hold harmless the Company, use the Affiliates and their respective reasonable best efforts Representatives from and against any and all losses, damages, claims, costs or expenses suffered or incurred by any of them in connection with (1) such cooperation, (2) the Financing, (3) any information used in connection with the Financing (except with respect to written information provided by the Company or any of the Affiliates specifically for inclusion in offering materials relating to the Financing) and (4) any action taken by any of them at the request of Parent, Merger Sub or the Financing Sources pursuant to this Section 5.13, except to the extent such losses, damages, claims, costs or expenses arose from the gross negligence, bad faith, material breach or willful misconduct of the Company, its Affiliates or their Representatives. Notwithstanding anything in this Agreement to the contrary, the condition set forth in Section 6.02(b), as it applies to obligations of the Company under this Section 5.13, shall be deemed satisfied if (1) any breach by the Company of its obligations under this Section 5.13 did not cause any such information the failure of the Financing to be disclosed in obtained or (2) Parent and/or Merger Sub do not have the right to terminate this Agreement pursuant to Section 7.01 as a manner that would not result in the loss of any such privilege)breaches of this Section 5.13 by the Company. The obligations of Parent and Merger Sub under this Section 5.13(c) shall survive the termination of this Agreement.
(d) Each of Parent and Merger Sub acknowledges and agrees that the Company, (iv) deliver its Affiliates and their respective Representatives have no responsibility for any financing that Parent or cause its Representatives Merger Sub may raise in connection with the Transactions. Any offering materials and other documents prepared by or on behalf of or utilized by Parent, Merger Sub or their Affiliates, or any Person providing the Financing to deliver any legal opinion Parent or negative assurance letter (exceptMerger Sub, in connection with Merger Sub’s financing activities in connection with the entry into an Allergan Supplemental Indenture required Transactions, which include any information provided by Section 7.9(b)the Company or any of its Affiliates or Representatives, Allergan shallincluding any offering memorandum, banker’s book, prospectus or similar document used, or any other written offering materials used, in connection with any Financing, shall include a conspicuous disclaimer to the effect that neither the Company, nor any of its Affiliates or Representatives nor any employees thereof has any responsibility for the content of such document and disclaim all responsibility therefor and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver further include a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor disclaimer with respect to the Financing prior Company and its Affiliates and Representatives in any oral disclosure with respect to the Completion, such Financing.
(vie) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all All non-public or other confidential information provided obtained by Parent or on behalf of Allergan Merger Sub, its Representatives or any of its Subsidiaries or Representatives Person in connection with the Financing and pursuant to this Section 7.9 to 5.13 shall be kept confidential in accordance with the Confidentiality Agreement; provided, except that Allergan acknowledges Parent and agrees that Merger Sub shall be permitted to disclose such information to any Person providing the Financing, rating agencies and prospective lenders and investors during syndication or other marketing efforts relating to the Financing, subject to the rating agencies and prospective lenders and investors entering into customary confidentiality undertakings that will be obtained with respect to such information (including through a notice and undertaking in a form customarily used in confidential information memoranda for senior credit facilities), and to potential investors in a customary offering memorandum and related materials used in connection with syndication an offering of debt or equity securities used to finance the consummation of the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover RulesTransactions.
Appears in 2 contracts
Samples: Merger Agreement (New Fortress Energy Inc.), Merger Agreement (Golar LNG LTD)
Financing Cooperation. (a) Until the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan Sellers shall use its commercially reasonable best efforts, efforts to take (and shall cause each of its Subsidiaries to use its reasonable best efforts, and shall use its reasonable best efforts to cause its the Target Group Companies and their respective officers, employees and advisors and other Representatives, including legal and accounting advisors, to use their commercially reasonable best efforts, efforts to provide to AbbVie and its Subsidiaries such assistance as may be take) all actions reasonably requested by AbbVie the Purchaser or its financing sources or that are customary, in writing that is customary each case, in connection with the arrangingPurchaser arranging debt financing in connection with the transactions contemplated hereby (collectively, obtaining and syndication including one or more debt facilities, loan agreements, high yield offerings or other incurrences of indebtedness, New Debt Actions), such debt to be arranged prior to, concurrently with or immediately following the FinancingClosing, including using reasonable best efforts with respect to:
: (i) participating cooperating with reasonable and customary due diligence by potential lenders, underwriters, initial purchasers or other financing sources, and counsel for any of the foregoing, which may include, subject to the terms and conditions in and this Agreement, a reasonable number of site visits at the Target Company Real Property upon reasonable notice during normal business hours, (ii) assisting the Purchaser with the due diligencepreparation of any materials for rating agency and investor presentations, syndication or bank information memoranda, confidential information memoranda, offering memoranda, private placement memoranda, registration statements, prospectuses, road show presentations, marketing materials and any other marketing of the Financinglender presentation materials, including using reasonable best efforts with respect provision of any information about the Target Group Companies for use in any such documentation, which is reasonably requested by the Purchaser or the Purchaser’s financing sources or which is deemed by the Purchaser’s financing sources to be necessary or advisable in order to market and consummate the New Debt Actions, (Aiii) the participation by members of management of Allergan with appropriate seniority participating in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions, sessions with prospective financing sources, initial purchasers, lenders or underwriters, and sessions with prospective lenders, investors and rating agencies, in each case at reasonable times and at locations reasonably acceptable locations, including participation by the senior management of the Target Group Companies, (iv) causing the Target Group Companies’ current and former independent auditors to Allergan provide reasonable and upon their customary assistance and cooperation, including (A) participating in a reasonable noticenumber of drafting sessions and accounting due diligence sessions, (B) assisting with AbbVie’s preparation provision of one or more comfort letters customarily provided in debt offerings pursuant to Rule 144A (including customary materials for registration statementsnegative assurance on interim financial statements and the period since the most recent balance sheet included in the offering materials), offering documentsand the Target Group Companies will provide customary representation letters to such accountants, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion providing consents or incorporation authorization for use of their reports in any SEC filing related filings required to be made by the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject Purchaser pursuant to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if or the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Exchange Act, including audit reports (v) facilitating as promptly as reasonably practicable the execution and delivery of annual financial statements to the extent so required (which audit reports shall not be subject any definitive finance agreements, purchase agreements, indentures, notes, guarantees, registration rights agreements, resolutions and/or any other documents related to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries proposed debt financing as may be reasonably requested in connection with their by the Purchaser, (vi) arranging for the preparation and timely delivery of any required legal opinions by counsel to the Target Group Companies, (vii) facilitating as promptly as reasonably practicable the pledging, preparation, execution and delivery of any customary negative assurance pledge and security documents, or other customary certificates, instruments, legal opinions and customary comfort letters relating or documents as may be reasonably requested by the Purchaser to facilitate the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents pledging of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used collateral in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
New Debt Actions, (viii) providing documents as promptly as reasonably requested by AbbVie practicable of documentation to the Purchaser or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of Purchaser’s financing sources all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as requested by the Purchaser that is reasonably requested in writing required by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulationsregulations (including the PATRIOT Act), (ix) ensuring that any syndication efforts in connection with any proposed debt financing benefit from the Target Group Companies’ existing lending and investment banking relationships, (x) preparation and provision of the Required Information, (xi) assisting the Purchaser with the Purchaser’s preparation of pro forma financial statements customarily included in offering documents for high yield debt securities or other information memoranda for syndicated bank financing, (xii) cooperating with the marketing efforts of the Purchaser and its financing sources for any portion of a proposed debt financing, (xiii) in the case of any proposed debt financing (or in connection with the Purchaser’s current debt financing) that includes an asset-based loan facility, providing reasonable access (subject to confidentiality arrangements reasonably acceptable to the Sellers) to the Purchaser’s financing sources and their representatives to evaluate the Target Group Companies’ inventory, current assets, cash management and accounting systems, and policies and procedures relating thereto for the purpose of establishing collateral arrangements (including without limitationallowing access for field exams), (xv) assisting with the pay-off of existing indebtedness of the Target Group Companies and the release of related liens and guaranties on the Closing Date (including obtaining customary pay-off letters, lien terminations and other instruments of discharge), and (xvi) updating any Required Information provided to the Purchaser or its financing sources as may be necessary for such Required Information to remain Compliant; provided, however, that notwithstanding anything in this Agreement, (x) neither the Sellers nor any of the Target Group Companies shall (A) have, prior to the Closing, any liability or obligation under any documents associated with the Purchaser’s financing (collectively, the USA PATRIOT ACTDebt Financing Documents), (B) be required to incur any other liability in connection with Purchaser’s financing or (C) be required to take any action that would require any director, manager, officer or employee of the Target Group Companies to execute, prior to Closing, any document, agreement, certificate or instrument or agree to any change or modification of any document, agreement, certificate or instrument prior to the Closing (other than such documents, agreements, certificates or instruments the effectiveness of which is conditioned upon and will not take effect prior to the Closing) or (D) be required take any action or provide any assistance that unreasonably interferes with the ongoing operations of the Sellers or any of the Target Group Companies and (y) the board of directors, or similar governing body, of the Target Group Companies shall not be required, prior to the Closing, to adopt resolutions approving the agreements, documents and instruments pursuant to which the Purchaser’s financing is obtained (other than resolutions the effectiveness of which is conditioned upon and will not take effect prior to the Closing).
(b) The Purchaser shall indemnify and hold harmless the Sellers and the Target Group Companies, and each of their respective Representatives, from and against any and all liabilities suffered or incurred in connection with the Purchaser’s financing or any assistance or activities provided in connection therewith, other than liabilities that are the result of the gross negligence or willful misconduct of or material breach of the representations, warranties, covenants or other agreements contained in this Agreement by the Sellers or any Target Group Company as finally determined by a court of competent jurisdiction. The Purchaser shall promptly reimburse the Sellers and the Target Group Companies for all reasonable and documented out-of-pocket costs (including reasonable attorney’s fees) incurred by the Sellers, the Target Group Companies and each of their respective Representatives in connection with the cooperation by the Sellers and the Target Group Companies, or their respective Representatives, pursuant to this Section 6.05 or in connection with its compliance with its obligations under this Section 6.05. Notwithstanding anything herein to the contrary in this Section 7.9(a) or Section 7.9(b) belowcontrary, (A) none of Allergan nor any of its Subsidiaries the Sellers or the Target Group Companies shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other similar fee or enter into any definitive agreement (other than such definitive agreement to which a Target Group Company (but no Seller) is a party and the effectiveness of which is conditioned upon and will not take effect prior to the Closing) or incur any other liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, obligation in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing Purchaser’s financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none occurrence of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained in connection with syndication of the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover RulesClosing Date.
Appears in 2 contracts
Samples: Unit Purchase Agreement, Unit Purchase Agreement (KLX Energy Services Holdings, Inc.)
Financing Cooperation. (a) Until Parent shall, and shall use reasonable best efforts to cause its applicable Affiliates to, use reasonable best efforts to take, or cause to be taken, all actions and do, or cause to be done, as promptly as possible, all things necessary, proper or advisable to arrange, obtain and consummate the earlier Financing on the terms and conditions described in the Equity Commitment Letter and the Debt Commitment Letter, including reasonable best efforts in (i) maintaining in effect the Equity Commitment Letter and the Debt Commitment Letter, (ii) as promptly as possible, satisfying on a timely basis all conditions applicable to Parent obtaining the Financing set forth therein (including by consummating the Equity Financing pursuant to the terms of the Completion Equity Commitment Letter and the valid Debt Financing pursuant to the terms of the Debt Commitment Letter), (iii) negotiating and entering into definitive agreements with respect thereto on the terms and conditions contained therein or on other terms in the aggregate not materially less favorable, taken as a whole, (iv) complying with their respective obligations under the Commitment Letters, (v) causing their senior management as well as appropriate representatives of Investor and their Affiliates, if applicable, to cooperate with the marketing and/or syndication efforts of the Debt Financing Sources for all of the Debt Financing, (vi) preparing in a timely manner the necessary marketing materials with respect to the Financing, (vii) commencing the marketing and/or syndication activities contemplated by the Debt Commitment Letter as promptly as practicable, (viii) enforcing its rights under the Commitment Letters and (ix) consummating the Financing at or prior to the Closing, including by causing the Debt Financing Sources to fund the Debt Financing at the Closing. Any material breach by any Parent Entity of any Debt Document (as defined below) shall be deemed to be a breach by Parent of the foregoing sentence. Parent shall, as promptly as reasonably practicable after obtaining knowledge thereof, give the Company written notice (i) of any breach or default (or any event or circumstance that, with or without notice, lapse of time or both, would reasonably be expected to result in a breach or default) by any party to the Equity Commitment Letter or the Debt Commitment Letter, (ii) of the receipt of any written notice or other written communication from any Person with respect to any (A) actual or potential breach, default, termination or repudiation by any party to the Equity Commitment Letter or the Debt Commitment Letter or (B) material dispute or disagreement between or among any parties to the Equity Commitment Letter or the Debt Commitment Letter (but excluding, for the avoidance of doubt, any ordinary course negotiations with respect to the terms of the Financing), (iii) in the event Parent becomes aware that any portion of the Financing is not reasonably likely to be available to consummate the Transactions, (iv) of any termination or expiration of the Equity Commitment Letter or the Debt Commitment Letter and (v) any change, circumstance or event which causes Parent to believe in good faith that it shall not be able to timely obtain all or any material portion of the Financing in the amounts or from the sources contemplated by the Commitment Letters (and that Parent will not be able to obtain acceptable alternate financing). Parent shall keep the Company informed on a reasonably current basis upon request by the Company of the status of its efforts to arrange the Financing contemplated by the Commitment Letters, including providing copies of all definitive agreements related to the Financing to the extent requested by the Company. If any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Commitment Letter (including the “market flex” provisions set forth in the fee letter) or if Parent reasonably determines that such funds may become unavailable to Parent on the terms and conditions set forth therein, Parent shall, without limiting the obligations of Parent set forth in the immediately following sentence, as promptly as reasonably practicable following the occurrence of such event: (i) notify the Company in writing thereof; (ii) use reasonable best efforts to arrange to obtain alternative financing, including from alternative sources, on terms in the aggregate not materially less favorable to Parent (in the reasonable judgment of Parent), taken as a whole and taking into account the “market flex” provisions set forth in the fee letter, than the Debt Financing contemplated by the Debt Commitment Letter in an amount sufficient to consummate the Transactions (“Alternative Financing”) and (iii) use reasonable best efforts to obtain a new financing commitment letter that provides for such alternative financing and, promptly after execution thereof, deliver to the Company true and complete copies of the new commitment letter and the related fee letters (provided, however, that the fee amounts and other economic terms, and the rates and amounts included in the “market flex” provisions (but not covenants), may be redacted, none of which redacted provisions would adversely affect the conditionality or aggregate principal amount of the Financing) and related definitive financing documents with respect to such Alternative Financing. The provisions of this Section 6.12 and Section 9.11 shall be applicable to the Alternative Financing, and, for the purposes of this Section 6.12 and Section 9.11, all references to the Debt Financing shall be deemed to include such Alternative Financing, all references to the Debt Commitment Letter shall include the applicable documents for the Alternative Financing and all references to the Debt Financing Sources shall include the Persons providing or arranging the Alternative Financing. Parent shall not, and shall cause its applicable controlled Affiliates not to, permit, without the prior written consent of the Company, any amendment or modification to be made to, or any waiver of any provision or remedy under, any Commitment Letter or the definitive agreements with respect thereto (such definitive agreements related to the Debt Financing, collectively, with the Debt Commitment Letter, the “Debt Documents”) or any fee letter or other Contract related to the Commitment Letters, if such amendment, modification or waiver would (A) reduce the aggregate amount of proceeds from the Financing (including by changing the amount of fees to be paid or original issue discount thereof) available to fund the amounts required to be paid by Parent under this Agreement below the amount required to consummate the Transactions, (B) impose any new or additional conditions or contingencies or otherwise amend, modify or expand any conditions precedent to the receipt of the full amount of the Financing or (C) otherwise reasonably be expected to prevent or materially impair or delay the ability of Parent to consummate the Transactions or adversely impact the ability of Parent (or, in the case of the Equity Commitment Letter, the Company) to enforce its rights against any other party to any Commitment Letter or any Debt Document. Parent shall promptly deliver copies of any such amendment, modification or waiver of the Commitment Letters or the Debt Documents to the Company. Parent shall fully pay, or cause to be fully paid, all commitment or other fees arising pursuant to the Debt Commitment Letter as and in accordance with Article 9when they become due.
(b) Prior to the Closing, Allergan at the sole expense of the Parent Entities, the Company shall use its reasonable best efforts, and shall cause each of its Subsidiaries efforts to use its reasonable best effortsprovide, and shall use its reasonable best efforts to cause each of its Subsidiaries and each of their respective officersRepresentatives and employees to provide, employees and advisors and other Representativesin each case, including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie and its Subsidiaries such assistance as may be customary cooperation reasonably requested by AbbVie in writing that is customary Parent with respect to the consummation of the Debt Financing by Parent in connection with the arrangingTransactions, obtaining and syndication of the Financing, including using which reasonable best efforts with respect to:
shall include: (i) participating in furnishing the Parent Entities and assisting their Debt Financing Sources with the due diligence, syndication or other marketing historical financial statements regarding the Company and its Subsidiaries as set forth in in Section 12 of Exhibit C of the FinancingDebt Commitment Letter and the information necessary to compute the Borrowing Bases, the cash and cash equivalents, and Excess Availability of the Company and its Subsidiaries at Closing (each as defined in the Debt Commitment Letter); (ii) assisting the Parent Entities in their preparation of the pro forma financial statements and information (including using reasonable best efforts projected balance sheets, income statements, statements of cash flows and the projected Borrowing Bases, cash and cash equivalents, and Excess Availability of the Company and its Subsidiaries) in each case as identified in (and defined in accordance with) Section 11 of Exhibit C of the Debt Commitment Letter (collectively with respect to item (Ai) above, the participation by members of management of Allergan with appropriate seniority “Required Financial Information”); (iii) participating in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, lenders and investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, in connection with the Debt Financing; (Biv) assisting with AbbVie’s the Parent Entities and their Debt Financing Sources in the preparation of customary materials for registration statements, any offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations memoranda (including the delivery of customary representation letters as contemplated by the Debt Commitment Letter) and similar documents required documents; (v) reasonably cooperating with the marketing efforts of the Parent Entities and their Debt Financing Sources in respect of the Debt Financing; (vi) reasonably facilitating the pledging of collateral, including (a) taking all actions reasonably necessary to establish bank and other accounts and blocked account agreements in connection with the foregoing, and (b) taking all actions reasonably necessary to cause the Debt Financing Sources to obtain a first priority perfected security interest in the assets constituting the Borrowing Bases (collectivelyas defined in the Debt Commitment Letter) including any real property contemplated to be part thereof; provided, “Marketing Material”that any obligations contained in all such agreements and documents shall be executed and effective no earlier than the Closing; (vii) obtaining customary payoff letters, lien terminations and due diligence sessions related theretoinstruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of all indebtedness and liens under any outstanding Indebtedness to be extinguished on the Closing Date; and (viii) reasonably facilitating the replacement and/or termination of any existing letters of credit issued for the account of the Company or any of its Subsidiaries. Notwithstanding the foregoing, (CA) delivering and consenting (i) nothing in this Section 6.12 shall require any cooperation or other action to the inclusion extent it would materially interfere with the business or incorporation in any SEC filing related to the Financing operations of the historical audited consolidated financial statements and unaudited consolidated interim financial statements Company or any of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization lettersits Subsidiaries, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, nothing in this Section 6.12 shall require the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan Company or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (commit to the extent required) evidence that notice of take any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner action that is not intended contingent upon the occurrence of the Closing (including the entry into any agreement or instrument) or that would be effective at or prior to the Effective Time, (iii) the Company Board and is the board of directors (or other governing body) of any of the Company’s Subsidiaries shall not reasonably likely be required to harm approve any financing or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan agreements related thereto (or any of its Subsidiaries); and
(xalternative financing) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Notwithstanding anything or prior to the contrary in this Section 7.9(aEffective Time, and (iv) or Section 7.9(b) below, (A) none of Allergan neither the Company nor any of its Subsidiaries shall be required to take or permit execute prior to the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver Closing any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law agreements and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, documents in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projectionsDebt Financing, (B) none of neither the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan Company nor any of its Subsidiaries shall be required to take pay any commitment or permit other similar fee or make any other payment (other than for minimal reasonable out-of-pocket costs that are reimbursed by Parent as provided herein) or incur any other liability or obligation or provide or agree to provide any indemnity in connection with any Debt Financing or any action taken in accordance with the taking first sentence of this Section 6.12(b) prior to the Effective Time, and (C) neither the Company nor any of its Subsidiaries shall be required to provide in connection with the Financing any information the disclosure of which is prohibited or restricted under Law, would result in the breach of any Contract entered into in good faith or is legally privileged, and Parent shall be solely responsible for (subject to the Company’s and its Subsidiaries’ compliance with their respective cooperation obligations under this Section 6.12(b), (1) the preparation of pro forma financial information, including pro forma cost savings, synergies, capitalization or other pro forma adjustments desired to be incorporated into any pro forma financial information, (2) any description of all or any component of the Debt Financing, (3) projections, risk factors or other forward-looking statements relating to all or any component of the Debt Financing or (4) any solvency certificate or similar certification or representation.
(c) The Parent Entities shall indemnify and hold harmless the Company, its Subsidiaries and its and their respective 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 any financing (including any action that would taken in accordance with Section 6.12) and any information utilized in connection therewith (i) interfere unreasonably with other than historical information provided by the business or operations of Allergan Company or its Subsidiaries) and any misuse of the logos, (ii) cause any representation marks or warranty in this Agreement to be breached brand names of the Company and its Subsidiaries. Parent shall, promptly upon request by Allergan the Company, reimburse the Company for all documented and reasonable out-of-pocket costs incurred by the Company or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder in connection with this Section 6.12. Except for the representations and warranties of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result the Company set forth in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a partyArticle III, the Organizational Documents Company shall not have any liability to the Parent Entities in respect of Allergan any financial statements, other financial information or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public data or other confidential information provided by or on behalf of Allergan or any of its Subsidiaries or Representatives pursuant to this Section 7.9 6.12. For the avoidance of doubt, the parties acknowledge and agree that the failure to obtain any Financing contemplated by this Section 6.12 or otherwise is not, and will not be kept confidential construed to be, a condition to the Offer or the Closing. The Company hereby consents to the use of its Trademarks, including all logos and brand names, in accordance connection with the Confidentiality Agreementany such Debt Financing; provided, however, that Allergan acknowledges such logos and agrees brand names are used solely in a manner that is neither intended, nor reasonably likely, to harm or disparage the confidentiality undertakings that will be obtained in connection with syndication Company and its Subsidiaries or the reputation or goodwill of the Financing will Company and its Subsidiaries and their respective logos, marks or brand names.
(d) Notwithstanding anything to the contrary in this Agreement, the conditions set forth in clause (4) of Annex A, as it applies to the Company’s obligations under this Section 6.12, shall be in deemed satisfied unless the financing contemplated by the Debt Commitment Letter has not been obtained as a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements direct result of the Panel and the Takeover RulesCompany’s failure to undertake reasonable best efforts with respect to its obligations under this Section 6.12.
Appears in 2 contracts
Samples: Agreement and Plan of Merger, Merger Agreement (Black Box Corp)
Financing Cooperation. (a) Until At the earlier reasonable request of the Completion Moon, Comet shall provide, and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan shall use its reasonable best efforts, consistent with the terms of and the obligations of each Party under this Agreement, to cause its Subsidiaries, and shall use reasonable best efforts to cause each of its and their respective Representatives, including legal and accounting Representatives, to provide all cooperation necessary and/or customary in connection with the arrangements of financings such as the Financings as is reasonably requested by Moon in connection with the Financings. In performing its respective foregoing obligations under this Section 7.21, each of Moon, Moon’s Subsidiaries, Comet and Comet’s Subsidiaries to use its reasonable best efforts, and shall use its reasonable best efforts to, as applicable, (i) provide reasonably required information relating to cause its and their respective officers, employees and advisors and other Representatives, including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie that Party and its Subsidiaries such assistance to the parties providing the Financings, (ii) participate in meetings, drafting sessions and due diligence sessions in connection with the Financings, (iii) assist in the preparation of (A) any offering documents for any portion of the Financings, and (B) materials for rating agency presentations, including execution and delivery of customary representation letters in connection with bank information memoranda, (iv) reasonably cooperate with the marketing efforts for any portion of the Financings, (v) execute and deliver (or use reasonable best efforts to obtain from its advisors), and cause its Subsidiaries to execute and deliver (or obtain from its advisors), customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financings), customary surveys, title insurance or other documents and instruments relating to guarantees, the pledge of collateral and other matters ancillary to the Financings as may be reasonably requested by AbbVie in writing that is customary necessary in connection with the arranging, obtaining and syndication of the Financing, including using reasonable best efforts with respect to:
(i) participating in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable noticeFinancings, (Bvi) assisting with AbbVie’s preparation of customary materials for registration statementsassist in obtaining such consents, offering documentswaivers, private placement memorandaestoppels, bank information memorandaapprovals, prospectuses, rating agency presentations authorizations and similar documents required in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type instruments that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected therebycollateral arrangements therefor, including customary payoff letters letters, lien releases, instruments of termination or discharge, appraisals, surveys, landlord consents, waivers and access agreements, (to the extent requiredvii) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of provide all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries such Person as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the any Financing that relates to Source and required under applicable “know your customer” and anti-money money-laundering rules and regulationsregulations including the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, including without limitation(viii) enter into one or more secured or unsecured credit or other agreements, or related guarantees and other ancillary agreements on terms satisfactory to Moon and that are reasonably necessary in connection with the Financings immediately prior to the Effective Time provided the same are not effective until the Effective Time, (ix) as promptly as practicable, furnish the sources for the Financings with all financial and other information regarding Moon, Comet and their respective Subsidiaries, as applicable, as may be reasonably necessary of a type generally used in connection with a syndicated bank financing as well as a registered public offering or an offering pursuant to Rule 144A of the Securities Act in each case by Moon, (x) take all actions reasonably necessary in connection with the termination at the Closing of all commitments in respect of the Existing Moon Debt and the Existing Comet Debt, as applicable, and any other Debt in each case to the extent contemplated by or required in connection with the Financings (collectively, the USA PATRIOT ACT. Notwithstanding anything “Existing Debt”), the repayment in full on the Closing Date of all obligations in respect of the Existing Debt, and the release of related Liens securing such Existing Debt and guarantees in connection therewith, and (xi) take all corporate actions, subject to the contrary in this Section 7.9(a) occurrence of the Closing, reasonably necessary to permit the consummation of the Financings and the direct borrowing or Section 7.9(b) belowincurrence of all of the proceeds of the Financings by Moon concurrently with the Effective Time; provided, (A) however, none of Allergan nor any of Comet or its Subsidiaries Affiliates shall be required to take or permit the taking of any action pursuant to this Section 7.9(a7.21 that would (A) require Comet, its Affiliates or Section 7.9(bany Persons who are directors or officers of Comet or any of its Affiliates to pass resolutions or consents to approve or authorize the execution of the Financings or execute or deliver any agreement, certificate, opinion, document or instrument that is effective prior to the Effective Time, (B) below require Comet or its Subsidiaries to (i) pay any commitment or other similar fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective connection with the Financings prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental IndenturesEffective Time, (yC) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light the organizational documents of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan Comet or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan Affiliates or any of its Subsidiaries (provided that Allergan shallLaws, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (viiD) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall reasonably be required expected to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default (with or without notice, lapse of time, or both) under, any material Contract to which Allergan Comet or any of its Subsidiaries Affiliates is a party, including this Agreement. Notwithstanding anything in this Section 7.21 to the Organizational Documents contrary, neither Comet, on the one hand, nor Moon, on the other hand, nor any of Allergan or its Subsidiaries or their respective Subsidiaries, shall be required to provide any information which it reasonably believes it may not provide by reason of any applicable Law. AbbVie Law (including with respect to privacy of employees), which constitutes information protected by attorney/client privilege, or which it is required to keep confidential by reason of contract or agreement with third parties.
(b) Notwithstanding anything in this Agreement to the contrary, in the event that the Combination and/or the other transactions contemplated by this Agreement are not consummated due to circumstances arising out of any failure to obtain the Financings, Moon shall cause all non-public or other confidential information provided by or on behalf not have any liability to any Comet Party arising out of Allergan or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to be kept confidential in accordance with the Confidentiality Agreementsuch failure; provided, that Allergan acknowledges and agrees however, that the confidentiality undertakings foregoing shall not relieve Moon of its obligations under Section 7.7 and Section 7.20, including its obligation to use reasonable best efforts to obtain the Financing to the extent required by Section 7.20(b). Each Party acknowledges that will be obtained in connection with syndication no Moon Party would have entered into this Agreement but for the agreement of the Financing will be Comet Parties set forth in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover Rulesthis Section 7.21(b).
Appears in 2 contracts
Samples: Business Combination Agreement (Chicago Bridge & Iron Co N V), Business Combination Agreement (McDermott International Inc)
Financing Cooperation. (a) Until Prior to the earlier of Effective Time, the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan Company shall use its commercially reasonable best efforts, and shall cause each of its Subsidiaries to use its reasonable best efforts, Company Entity and shall use its reasonable best efforts to cause its and their respective officers, employees and advisors and other Representatives, including legal and accounting advisors, Representatives to use their commercially reasonable best efforts, to provide Parent with all cooperation reasonably requested by Parent to AbbVie assist it in causing the conditions in the Debt Commitment Letters to be satisfied or as is otherwise necessary or reasonably requested by Parent in connection with the Debt Financing, including:
(i) participation by officers and directors in a reasonable number of meetings (including one-on-one), presentations, road shows, due diligence sessions, drafting sessions and sessions with rating agencies and prospective lenders or investors and obtaining assistance from its Subsidiaries accountants, including participating in a reasonable number of drafting and accounting due diligence sessions;
(ii) assisting Parent and the Debt Financing Sources with the timely preparation of customary rating agency presentations, marketing materials, bank information memoranda and high-yield offering prospectuses or memoranda required in connection with the Financing;
(iii) executing and delivering pledge, mortgage and security documents, supplemental indentures, currency or interest hedging arrangements, other definitive financing documents, customary solvency certificates executed by the Chief Financial Officer (including relating to solvency matters of the Company before giving effect to the incurrence of the Debt Financing and the consummation of the Merger and the other transactions contemplated by this Agreement and such assistance Debt Financing), and other certificates or documents and back-up therefor as may be reasonably requested by AbbVie Parent or the Debt Financing Sources (including using commercially reasonable efforts to obtain consents of accountants for use of their reports in writing that is customary any materials relating to the Debt Financing and accountants' comfort letters, in connection with each case as reasonably requested by Parent), and otherwise reasonably facilitating the arranging, obtaining pledging of collateral and syndication the granting of security interests in respect of the Financing, including using reasonable best efforts with respect to:
(i) participating in and assisting with the due diligence, syndication or other marketing Debt Financing provided that no obligation of the FinancingCompany or any Subsidiaries of the Company under any agreement, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion document or incorporation in any SEC filing pledge related to the Financing any of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into Financings shall be operative until the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers)Effective Time;
(iiiv) timely furnishing AbbVie Parent and its the Debt Financing Sources Sources, as promptly as practicable, with historical financial and other customary pertinent information (collectivelyprovided that Parent shall be responsible for the preparation, with the “Financing Information”) with respect to Allergan assistance of the Company and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings independent accountants, of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iiistatements) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan the Company and its Subsidiaries as may be reasonably requested by Parent, including, without limitation, audited annual consolidated balance sheets and related statements of income, stockholders' equity and cash flow of the Company and its Subsidiaries and unaudited quarterly consolidated balance sheets and related statements of income, stockholders' equity and cash flow of the Company and its Subsidiaries for each fiscal quarter ended after June 30, 2013 (which quarterly statements shall be delivered at least 45 days before the Closing Date) (all such information and documents in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to this Section 6.14(a)(iv), the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing"Required Financing Information");
(v) cooperating with Parent to obtain customary and reasonable corporate and facilities ratings, consents, approvals, authorizations, landlord waivers and estoppels, non-disturbance agreements, non-invasive environmental assessments, legal opinions, surveys and title insurance (including such affidavits and non-imputation endorsements in connection therewith) as reasonably requested by Parent;
(vi) assisting in negotiation of definitive documents as may be reasonably requested by Parent;
(vii) executing, delivering and entering into, immediately prior to the Effective Time, one or more securities purchase agreements, credit agreements, indentures, notes or guarantees on terms satisfactory to Parent in connection with the Debt Financing;
(viii) reasonably facilitating the pledging or the reaffirmation of the pledge of collateral (including obtaining and delivering any pay-off letters and other cooperation in connection with the consents repayment or other retirement of Allergan’s independent auditors existing indebtedness and the release and termination of any and all related liens) on or prior to use their audit reports on the audited Historical Financial Statements Closing Date, as well as cooperating to permit prospective lenders involved in the Financing to evaluate and assess the assets of Allergan the Company Entities for purposes of establishing collateral arrangements;
(ix) delivering notices of prepayment within the time periods required by the relevant agreements governing indebtedness and obtaining customary payoff letters, lien terminations and instruments of discharge to references be delivered at the Closing, and giving any other necessary notices, to such independent auditors as experts allow for the payoff, discharge and termination in full at the Closing of all indebtedness;
(x) taking all corporate and other actions, subject to the occurrence of the Closing, reasonably requested by Parent to (A) permit the consummation of the Debt Financing (including distributing the proceeds of the Debt Financing, if any, obtained by any Subsidiary of the Company to the Surviving Corporation), and (B) cause the direct borrowing or incurrence of all of the proceeds of the Debt Financing, including any high-yield debt financing, by the Surviving Corporation or any of its Subsidiaries concurrently with or immediately following the Effective Time; and
(xi) promptly and in any Marketing Material event at least ten (10) days prior to the Closing Date, furnishing Parent and registration statements the Debt Financing Sources with all documentation and related government filings filed other information required by regulatory authorities pursuant to applicable "know your customer" and anti-money laundering rules and regulations, including the Patriot Act.
(b) Nothing in this Section 6.14 shall require the Company Entities to (i) waive or used amend any terms of this Agreement or agree to pay any fees or reimburse any expenses prior to the Effective Time for which it has not received prior reimbursement or is not otherwise indemnified by or on behalf of Parent, or to give any indemnities that are effective prior to the Effective Time; or (ii) take any action that would unreasonably interfere with the ongoing operations of the Company and its Subsidiaries.
(c) The Company hereby consents to the use of the Company Entities' logos in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby; provided, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtednesshowever, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan Company or any of its Subsidiaries); and.
(xd) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Notwithstanding anything to the contrary in this Section 7.9(a) or Section 7.9(b) below, (A) none of Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all All non-public or other confidential information provided by or on behalf of Allergan the Company or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to Agreement shall be kept confidential in accordance with the Confidentiality Agreement; provided, however that Allergan acknowledges Parent and agrees Merger Sub shall be permitted to disclose such information to any financing sources or prospective financing sources and other financial institutions and investors that are or may become parties to the confidentiality undertakings that will be obtained Debt Financing and to any underwriters, initial purchasers or placement agents in connection with syndication the Debt Financing (and, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as if parties thereto; or (ii) are subject to other customary confidentiality undertakings reasonably satisfactory to the Company.
(e) Promptly upon request by the Company, Parent shall reimburse the Company (or pay in advance) for any reasonable and documented out-of-pocket costs and expenses (including outside attorneys' fees) incurred by the Company in connection with the cooperation of the Financing will Company contemplated by this Section 6.14.
(f) The Company Entities and their respective Representatives shall be indemnified and held harmless by Parent from and against any and all liabilities, losses, damages, claims, costs, expenses (including attorneys' fees), interest, awards, judgments, penalties and amounts paid in a form customary for use settlement suffered or incurred by them in connection with their cooperation in arranging the syndication Financings pursuant to this Agreement or the provision of acquisition-related debt during a takeover offer period information utilized in compliance with connection therewith, except to the requirements extent resulting from, or by reason of information provided by or at the direction of the Panel and Company Entities or their respective Representatives, or to the Takeover Rulesextent that such liabilities, losses, damages, claims, costs or expenses, directly or indirectly, resulted from or arose out of the willful misconduct, bad faith or gross negligence of the Company Entities or their respective Representatives.
Appears in 2 contracts
Samples: Merger Agreement (Evans Hugh D), Merger Agreement (Anaren Inc)
Financing Cooperation. (a) Until Prior to the earlier of Effective Time, the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan Company shall use its reasonable best efforts, and shall cause each of its Subsidiaries to use its reasonable best effortssubsidiaries to, at Parent’s sole expense, cooperate, and shall use its reasonable best efforts to cause its and their respective officers, employees employees, representatives, auditors, and advisors and other Representativesadvisors, including legal and accounting advisors, to use their reasonable best effortscooperate, to provide to AbbVie and its Subsidiaries such assistance in connection with the arrangement of the Debt Financing, as may be reasonably requested by AbbVie in writing Parent (provided that is customary in connection such requested cooperation does not unreasonably interfere with the arranging, obtaining and syndication ongoing operations of business of the FinancingCompany and its subsidiaries), including using reasonable best efforts with respect to:
including: (i) participating participation in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, rating agency presentations, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmationssessions, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to “road show” and other customary confidentiality provisions and disclaimers);
marketing presentations; (ii) timely furnishing AbbVie in writing any financing sources as promptly as practicable with pertinent information regarding the Company and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery the Debt Financing; (iii) assisting any financing sources in the preparation of (A) one or more customary offering documents, information memoranda and/or documents to be filed with the SEC in connection with the Debt Financing and (B) materials for rating agency presentations; (iv) executing and delivering any pledge and security documents and otherwise facilitating the pledging of collateral; (v) taking all reasonably required corporate actions, subject to the consummation of the Mergers, to permit the consummation of the Debt Financing; (vi) providing authorization letters to any financing sources authorizing the distribution of information to prospective lenders and containing customary representation to the arranger of any customary negative assurance opinions and customary comfort letters financing that the information contained in any offering document or information memorandum relating to the Financing;Company and its subsidiaries does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (vii) cooperating reasonably with the financing sources; due diligence of the Company and its subsidiaries, to the extent customary and reasonable. Parent shall, promptly upon termination of this Agreement, reimburse the Company for all reasonable out-of-pocket expenses and costs incurred in connection with the Company’s or its Affiliates’ obligations under this Section 7.11.
(ivb) causing Allergan’s In addition, prior to the Effective Time, the Company shall: (i) use its reasonable best efforts to cause Ernst & Young LLP, independent auditors accountants of the Company, to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration a letter or letters containing statements and related government filings filed or information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to financial statements and certain financial information used in connection with the Debt Financing;
; (viii) obtaining Allergan’s independent auditors’ use its reasonable best efforts to provide customary comfort representation letters and assistance with other authorizations or information to Ernst & Young LLP, to enable them to provide the accounting due diligence activities foregoing “comfort letters”; (iii) use its reasonable best efforts to obtain the consent of Ernst & Young LLP for the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any inclusion of its Subsidiaries reports on the Company in any document or documents to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos used in connection with the Financing Debt Financing; and (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or iv) cause the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance appropriate representatives of the Completion Date such documentation Company to execute and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Notwithstanding anything to the contrary in this Section 7.9(a) or Section 7.9(b) below, (A) none of Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document certificates or instrument, or agree to any change to or modification documents as may be reasonably requested by Parent for delivery at the consummation of any existing agreement, certificate, document or instrument, the Debt Financing.
(c) Notwithstanding anything in each case that would be effective prior this Agreement to the Completion Date or would be effective if contrary, neither the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or Company nor any of its Subsidiaries reasonably determines would jeopardize subsidiaries shall be required to pay any attorney-client privilege commitment or other similar fee or enter into any definitive agreement or incur any other liability of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, obligation in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan Debt Financing (or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (vany alternative financing) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained in connection with syndication of the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover RulesEffective Time.
Appears in 2 contracts
Samples: Merger Agreement (Surewest Communications), Merger Agreement (Consolidated Communications Holdings, Inc.)
Financing Cooperation. (a) Until Prior to the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9Closing, Allergan shall use its reasonable best effortsStockholder shall, and shall cause each of its Subsidiaries to Affiliates to, use its reasonable best efforts, and shall use its reasonable best efforts to cause its and their respective directors, officers, employees and advisors employees, investment bankers, attorneys, accountants and other advisors or representatives (collectively, “Representatives”) to, including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie Parent and its Subsidiaries Merger Sub such assistance as may be cooperation reasonably requested by AbbVie in writing that is customary Parent in connection with the arranging, obtaining and syndication of the Debt Financing, including using reasonable best efforts with respect toincluding:
(i) participating in a customary and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road showsdue diligence sessions, drafting sessions, due diligence sessions road shows and sessions with prospective lenders, investors rating agencies and rating agencies, at times assisting Parent and at locations reasonably acceptable to Allergan and upon reasonable notice, Merger Sub in obtaining ratings as contemplated by the Debt Financing;
(Bii) assisting with AbbVie’s the preparation of customary materials for registration statementsrating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations prospectuses and similar documents required for the Debt Financing, including execution and delivery of customary representation letters in connection with bank information memoranda;
(iii) as promptly as reasonably practical, furnishing Parent and Merger Sub and their Debt Financing sources with financial and other information regarding the Financing Company and its subsidiaries as may be reasonably requested by Parent (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings including in connection with the Marketing Material (in each caseParent’s or Merger Sub’s preparation of pro forma financial statements), as applicableincluding financial statements, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial data, projections, audit reports and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under of the Securities Act if of 1933 for a registered public offering, and of type and form customarily included in private placements under Rule 144A, to consummate the offering(s) of debt securities contemplated by the Debt Financing, or as otherwise reasonably required in connection with the Debt Financing, or as otherwise necessary in order to assist in receiving customary “comfort” (including “negative assurance” comfort) from independent accountants in connection with the offering(s) of debt securities contemplated by the Debt Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualificationsall such information in this clause (iii), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type“Required Information”);
(iiiiv) providing executing and delivering any credit agreement, customary and reasonable pledge and security documents, indentures, purchase agreements, currency or interest hedging arrangements, other definitive financing documents, officer’s certificates, customary closing documents, or other certificates or documents with respect to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries the Debt Financing contemplated by the Debt Financing as may be reasonably requested by Parent (including customary consents of accountants for use of their reports in connection with their delivery of any customary negative assurance opinions and customary comfort letters materials relating to the Debt Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with or otherwise reasonably facilitating the Financingpledging of collateral;
(v) obtaining furnishing Parent and Merger Sub and their Financing sources as promptly as practicable all financial information required to be delivered pursuant to the consents Debt Commitment Letter and monthly financial statements for the Company within fifteen (15) days of Allergan’s independent auditors the end of each month prior to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the FinancingClosing Date;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters executing and assistance with the accounting due diligence activities delivering, as of the Financing SourcesClosing Date, a certificate of the chief financial officer of the Company with respect to solvency matters;
(vii) causing assisting Parent and Merger Sub to obtain waivers, consents, estoppels and approvals from other parties to material leases, Encumbrances and Contracts to which the Financing Company or any subsidiary is a party and arranging discussions among Parent and Merger Sub and their financing sources with other parties to benefit from material leases, encumbrances and contracts as of the existing lender relationships of Allergan and its SubsidiariesClosing Date;
(viii) providing documents taking all corporate actions, subject to the occurrence of the Closing Date, reasonably requested by AbbVie Parent that are necessary or customary to permit the consummation of the Debt Financing Sources relating (including any high yield financing), and to permit the proceeds thereof, together with the cash at the Company and its Subsidiaries (not needed for other purposes), to be made available to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced Company on the Completion Closing Date and to consummate the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the CompletionTransactions);
(ix) procuring consents cooperating with Parent and Merger Sub in their efforts to obtain accountants’ comfort letters, consents, legal opinions, surveys, appraisals, engineering reports, environmental and other inspections, title insurance and other documentation and items relating to the reasonable use of all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not Debt Financing, as reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries)requested by Parent; and
(x) providing at least three taking all actions reasonably necessary to (3x) Business Days permit the prospective lenders involved in advance the Debt Financing to evaluate the Companies’ current assets, cash management and accounting systems, policies and procedures relating thereto for the purpose of establishing collateral arrangements to the Completion Date such documentation extent customary and reasonable and (y) establish bank and other information about Allergan accounts and its Subsidiaries as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date blocked account agreements and lock box arrangements in connection with the Financing foregoing; provided that relates to applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Notwithstanding anything to the contrary in this Section 7.9(a) or Section 7.9(b) below, (A) none nothing herein shall require such cooperation to the extent it would require Stockholder or its Affiliates to waive or amend any terms of Allergan nor this Agreement, incur any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) Liabilities, pay any commitment fees, reimburse any expenses or other fee or incur give any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrumentindemnities, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b)case, applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Debt Financing (other than with respect to a purchase agreement in connection with a high yield financing), prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to Closing for which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided it has not received prior reimbursement by or on behalf of Allergan Parent or any of Merger Sub, (B) nothing herein shall require such cooperation from Stockholder or its Subsidiaries or Representatives pursuant Affiliates to this Section 7.9 to be kept confidential in accordance the extent it would unreasonably interfere with the Confidentiality Agreement; providedongoing operations of Stockholder or its Affiliates, that Allergan acknowledges and agrees that (C) no action, Liability or obligation of Stockholder or its Affiliates under any certificate, agreement, arrangement, document or instrument relating to the confidentiality undertakings that will Debt Financing shall be obtained effective until the Closing (other than with respect to a purchase agreement in connection with syndication of a high yield financing) and (D) any offering documents, private placement memoranda, bank information memoranda, prospectuses and similar documents required in relation to the Debt Financing will be in a form customary for use in shall contain disclosure and financial statements reflecting the syndication of acquisition-related debt during a takeover offer period in compliance with Company as the requirements of the Panel and the Takeover Rulesobligor.
Appears in 2 contracts
Samples: Merger Agreement (EVERTEC, Inc.), Merger Agreement (Popular Inc)
Financing Cooperation. (a) Until During the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan shall use its reasonable best efforts, and shall cause each of its Subsidiaries to use its reasonable best efforts, and shall use its reasonable best efforts to cause its and their respective officers, employees and advisors and other Representatives, including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie and its Subsidiaries such assistance as may be reasonably requested by AbbVie in writing that is customary in connection with the arranging, obtaining and syndication of the Financing, including using reasonable best efforts with respect to:
(i) participating in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectivelyInterim Period, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Notwithstanding anything to the contrary in this Section 7.9(a) or Section 7.9(b) below, (A) none of Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan Company shall, and shall cause its Subsidiaries to, use and shall cause its and their respective reasonable best efforts Representatives to, provide all cooperation reasonably requested by Parent in connection with financing arrangements (including assumptions, guarantees, amendments, supplements, modifications, refinancings, replacements, repayments, terminations or prepayments of the Company Debt Agreements) as Parent may reasonably determine necessary or advisable in connection with the completion of the Mergers or the other transactions contemplated hereby, including timely taking all corporate action reasonably necessary to cause authorize the execution and delivery of any documents to be entered into prior to Closing in respect of the Company Debt Agreements and delivering all officer’s certificates and legal opinions required to be delivered in connection thereof; provided that any arrangements, guarantees, amendments, supplements, modifications, refinancings, replacements, repayments, terminations, prepayments or other transactions or documents entered into pursuant to this Section 7.19(a) shall be effective at or immediately prior to the Partnership Merger Effective Time (other than any notices required to be given in advance of such time in order for any such information financing arrangements or documents to be disclosed in a manner effective at or immediately prior to the Partnership Merger Effective Time).
(b) During the Interim Period, Parent or one or more of its Subsidiaries may (i) commence any of the following: (A) one or more offers to purchase any or all of the outstanding debt issued under the Company Notes Indentures and the Company Private Placement Notes for cash (the “Offers to Purchase”); or (B) one or more offers to exchange any or all of the outstanding debt issued under the Company Notes Indentures and the Company Private Placement Notes for securities issued by the Partnership or any of its Affiliates (the “Offers to Exchange”); and (ii) solicit the consent of the holders of debt issued under the Company Notes Indentures and the Company Private Placement Notes regarding certain proposed amendments thereto or certain transactions described therein (the “Consent Solicitations” and, together with the Offers to Purchase and Offers to Exchange, if any, the “Note Offers and Consent Solicitations”); provided that would not result in any such notice or offer shall expressly reflect that, and it shall be the loss case that, the closing of any such privilegetransaction shall not be consummated until the Closing and such transaction shall be funded using consideration provided by Parent or any of its Subsidiaries (or by the Company or any of the Company Subsidiaries if the payment thereof is to be made at or after the Closing). Any Note Offers and Consent Solicitations shall be made on such terms and conditions (including price to be paid and conditionality) as are proposed by Parent and which are permitted by the terms of the applicable Company Notes Indenture and the Company Private Placement Notes and applicable Laws, including SEC rules and regulations. Parent shall consult with the Company regarding the material terms and conditions of any Note Offers and Consent Solicitations, including the timing and commencement of any Note Offers and Consent Solicitations and any tender deadlines. Parent shall have provided the Company with the necessary offer to purchase, offer to exchange, consent solicitation statement, letter of transmittal, press release, if any, in connection therewith, and each other document relevant to the transaction that will be distributed by Parent in the applicable Note Offers and Consent Solicitations (ivcollectively, the “Debt Offer Documents”) deliver a reasonable period of time in advance of commencing the applicable Note Offers and Consent Solicitations to allow the Company and its counsel to review and comment on such Debt Offer Documents, and Parent shall give reasonable and good faith consideration to any comments made or cause input provided by the Company and its Representatives legal counsel. Subject to deliver any legal opinion or negative assurance letter (exceptthe receipt of the requisite holder consents, in connection with any or all of the entry into an Allergan Supplemental Indenture required Consent Solicitations, the Company shall execute a supplemental indenture to each of the Company Notes Indentures or amendment to each of the Company Private Placement Notes, as applicable, in accordance with the terms thereof amending the terms and provisions thereof as described in the applicable Debt Offer Documents in a form as reasonably requested by Section 7.9(b)Parent; provided that the amendments effected by such supplemental indentures and amendments shall not become operative until the Closing. During the Interim Period, Allergan shallat Parent’s sole expense, the Company shall and shall cause its Subsidiaries to, and shall use their respective reasonable best efforts to cause its and their Representatives to, provide all cooperation reasonably requested by Parent to assist Parent in connection with any Note Offers and Consent Solicitations (including using commercially reasonable efforts to cause the Company’s independent accountants to provide customary consents for use of their reports to the extent required in connection with any Note Offers and Consent Solicitations); provided that neither the Company nor counsel for the Company shall be required to Allergan furnish any certificates, legal opinions or its Subsidiariesnegative assurance letters in connection with any Note Offers and Consent Solicitations other than, as applicablein connection with the execution of (i) any supplemental indenture or amendment relating to the Consent Solicitations, with respect to which the Company shall (x) deliver a customary opinion of counsel officers’ certificates and (y) customary legal opinions to the trustee under the applicable Company Notes Indenture that in the Allergan Supplemental form required by the applicable Company Notes Indenture amends or to the noteholders of the applicable Company Private Placement Notes in the form required by the applicable Company Private Placement Notes or (ii) any dealer manager agreement or other similar agreement, with respect to which the Company shall deliver customary legal opinions to the dealer manager or other similar agent in the form required by the applicable dealer manager agreement, but only if such trustee requires an opinion of counsel is required to Allergan be delivered at or prior to Closing, in connection therewith (provided that each case, to the extent such certificates and opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered))Laws. The dealer manager, (v) be an issuer solicitation agent, information agent, depositary or other obligor agent retained in connection with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare will be selected and retained by Parent. If, at any pro forma financial information or projections, (B) none time prior to the completion of the Allergan BoardNote Offers and Consent Solicitations, officers the Company or any of Allerganits Subsidiaries, on the one hand, or directors Parent or any of its Subsidiaries, on the other hand, discovers any information that should be set forth in an amendment or supplement to the Debt Offer Documents, so that the Debt Offer Documents shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of circumstances under which they are made, not misleading, such party that discovers such information shall use commercially reasonable efforts to promptly notify the other Party, and officers an appropriate amendment or supplement prepared by Parent describing such information shall be disseminated to the holders of the Subsidiaries notes outstanding under the Company Notes Indentures and the Company Private Placement Notes.
(c) Nothing in this Section 7.19 shall require the Company or any Company Subsidiary: (i) to pay any fee that is not reimbursed by Parent in connection with any of Allergan shall be required the activities contemplated by Section 7.19; (ii) to adopt resolutions take any action that would unreasonably interfere with the ongoing operations of the Company or consents approving the agreements, any Company Subsidiary in any material respect; (iii) to take any action that will conflict with or violate its respective organizational documents or instruments pursuant any applicable Laws or result in the contravention of, or would reasonably be expected to result in a material violation of, or material default under, any contract to which the Financing is obtained Company or any Allergan Company Subsidiary is a party or the Company Notes Indentures and the Company Private Placement Notes; (iv) to prepare separate financial statements for any Company Subsidiary or change any fiscal period, or (v) to enter into any document, agreement or other instrument that will be effective prior to the Closing (other than customary authorization and reliance letters). No personal liability arising out of the Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required imposed on any officers, directors or other Representatives of the Company.
(d) Parent shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses paid to take third parties (including advisor’s fees and expenses) incurred by the Company or permit any Company Subsidiary in connection with the taking of cooperation provided or other action taken by Company or any Company Subsidiary pursuant to this Section 7.19 and indemnify and hold harmless the Company, the Company Subsidiaries and their respective officers, directors and other Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties (collectively, “Losses”) suffered or incurred by them in connection with any such financing transaction or Note Offers and Consent Solicitations, any information utilized in connection therewith or any action that would (i) interfere unreasonably with taken by the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan Company or any Company Subsidiary pursuant to this Section 7.19; provided, however, that the foregoing indemnity shall not apply with respect to any Losses resulting from the gross negligence or Willful Breach of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan the Company or any of its Company Subsidiaries to incur any personal liability or under this Agreement.
(ive) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all All non-public or other confidential information provided by or on behalf of Allergan the Company or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to Agreement shall be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges Parent shall be permitted to disclose such information to any third party financing sources or prospective third party financing sources and agrees that other financial institutions and investors (including the parties to and holders of notes under the Company Notes Indentures and Company Private Placement Notes) and to their respective counsel and auditors subject to customary confidentiality undertakings that will be obtained arrangements for use by any of them of such information in connection with syndication providing the financing contemplated by this Section 7.19 in connection with the Mergers.
(f) Anything to the contrary in this Agreement notwithstanding, (i) the Parties acknowledge and agree that the provisions contained in this Section 7.19 represent the sole obligation of the Financing will be Company, it Subsidiaries and their respective Representatives with respect to cooperation in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance connection with the requirements arrangement of any financing transaction or Note Offers and Consent Solicitations with respect to the transactions contemplated by this Agreement and no other provision of this Agreement (including the exhibits and schedules hereto) shall be deemed to expand or modify such obligation; (ii) the Company’s breach of any of the Panel covenants required to be performed by it under this Section 7.19 (other than a Willful Breach of such covenants) shall not be considered in determining the satisfaction of the condition set forth in Section 8.2(b); and (iii) the Takeover Rulesconsummation of any financing transaction or Note Offers and Consent Solicitations contemplated by this Section 7.19 is not a condition to any Party’s obligation to consummate the Mergers.
Appears in 2 contracts
Samples: Merger Agreement (Extra Space Storage Inc.), Merger Agreement (Life Storage Lp)
Financing Cooperation. (a) Until Prior to the earlier of Closing, the Completion Company shall provide to Parent and the valid termination of this Agreement pursuant to Merger Sub and in accordance with Article 9, Allergan shall use its reasonable best effortstheir financing sources, and shall cause each of its the Company Subsidiaries to use its reasonable best effortsto, and shall use its reasonable best efforts to cause its and their the respective officers, employees and advisors and other Representativesadvisors, including legal and accounting advisorsaccounting, to use their reasonable best effortsof the Company and the Company Subsidiaries to, to provide to AbbVie Parent and its Subsidiaries such assistance as may be Merger Sub and their financing sources all cooperation reasonably requested by AbbVie in writing that is customary Parent in connection with the arranging, obtaining and syndication arrangement of the Financing, including using reasonable best efforts with respect toincluding:
(i) participating in a reasonable number of sessions with ratings agencies; and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) obtain ratings as and when set forth in the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection with the Debt Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers)Commitment;
(ii) timely hosting one or more meetings with prospective financing sources as and when set forth in the Debt Financing Commitment;
(iii) providing reasonable assistance with the preparation of marketing materials and materials for rating agency presentations;
(iv) executing and delivering any definitive financing certificates, documents and/or instruments as may be reasonably requested by Parent, including pledge and security documents, currency or interest hedging agreements, and a certificate of an officer of the Company or any borrowing Company Subsidiary with respect to solvency matters and consents of accountants for use of their reports in any materials relating to the Debt Financing,
(v) furnishing AbbVie Parent and its Financing Sources financing sources as promptly as practicable with historical financial and other customary pertinent information (collectively, regarding the “Financing Information”) with respect to Allergan Company and its the Company Subsidiaries as is may be reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings Parent, including the audited consolidated financial statements of the applicable typeCompany and the Company Subsidiaries for the fiscal year ended December 31, including 2010 (the “2010 Audited Financials”), and all Historical Financial Statements other financial statements and projections and other customary pertinent information with respect to Allergan required by the Financing Commitments and its Subsidiaries (A) all financial statements, pro forma financial information, financial data, audit reports and other information of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered of type and form customarily included in a registration statement on Form S-3 S-1 (or any applicable successor form) under the Securities Act (subject to exceptions customary for private placements pursuant to Rule 144A promulgated under the Securities Act, including audit reports ) for a public offering to consummate the offering(s) of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications)debt securities, or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used otherwise required by Law in connection with the FinancingDebt Financing and the transactions contemplated by this Agreement (all such information in this clause (v), the “Required Financial Information”);
(vi) obtaining Allergan’s independent auditorsusing reasonable best efforts to obtain accountants’ customary comfort letters letters, consents, legal opinions, surveys and assistance with the accounting due diligence activities of the Financing Sourcestitle insurance as reasonably requested by Parent;
(vii) causing providing quarterly financial statements no later than the Financing date by which the applicable quarterly filing is required to benefit from be made with the existing lender relationships of Allergan and its SubsidiariesSEC;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating customary letters to the repayment or refinancing financing sources of any indebtedness for borrowed money Parent and Merger Sub authorizing the dissemination of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected therebymarketing materials, including customary payoff letters and (to the extent required) evidence confirming that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);materials do not contain material non-public information; and
(ix) procuring consents entering into one or more credit or other agreements on terms satisfactory to the reasonable use of all of Allergan’s logos Parent in connection with the Debt Financing (immediately prior to the Effective Time to the extent direct borrowings or debt incurrences by the Company or any Company Subsidiary are contemplated by the Debt Financing Commitment; provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or (1) irrespective of the reputation or goodwill above, no obligation of Allergan the Company or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance the Company Subsidiaries under any certificate, document or instrument shall be effective until the Effective Time and none of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance Company or any of the Completion Date in connection with the Financing that relates to applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Notwithstanding anything to the contrary in this Section 7.9(a) or Section 7.9(b) below, (A) none of Allergan nor any of its Company Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay under any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, instrument that is not contingent upon the Closing (including the entry into any agreement that is effective before the Effective Time) or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental IndenturesEffective Time, (y2) customary officers’ certificates relating to such efforts do not unreasonably interfere with the execution thereof that would not conflict with applicable Law and would be accurate in light ongoing operations of the facts Company and circumstances at the time delivered Company Subsidiaries and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B3) none of the Allergan Board, officers of Allergan, Company or directors and officers any of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Company Subsidiaries shall be required to take issue or permit disseminate any offering or information document. Parent shall, promptly upon request by the taking of any action that would (i) interfere unreasonably Company, reimburse the Company for all out-of-pocket costs incurred by the Company or the Company Subsidiaries in connection with the business performance of the provisions of this Section 7.11(a).
(b) Parent acknowledges and agrees that the Company and its Representatives shall not have any responsibility for, or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach ofto, or a default any Person under, any material Contract to which Allergan Financing that Parent or Merger Sub may raise in connection with the transactions contemplated by this Agreement or any cooperation provided pursuant to this Section 7.11 and that Parent and Merger Sub shall, jointly and severally, indemnify and hold harmless the Company and its Representatives from and against any and all Losses suffered or incurred by any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or them in connection with any applicable Law. AbbVie shall cause all Financing and any information utilized in connection therewith.
(c) All non-public or other otherwise confidential information provided by or on behalf of Allergan regarding the Company or any of its the Company Subsidiaries obtained by Parent or Merger Sub or their respective Representatives pursuant to this Section 7.9 to 7.11(a) shall be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained in connection with syndication of the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover Rules.
Appears in 2 contracts
Samples: Merger Agreement (Pre Paid Legal Services Inc), Merger Agreement (Pre Paid Legal Services Inc)
Financing Cooperation. (a) Until On and prior to the earlier of Closing, the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan shall use its reasonable best effortsCompany shall, and shall cause each of its Subsidiaries to use its reasonable best effortsto, and shall use its commercially reasonable best efforts to cause its and their respective directors, officers, employees employees, agents and advisors and other Representativesto, including legal and accounting advisors, use commercially reasonable efforts to use their reasonable best efforts, to provide to AbbVie and its Subsidiaries such assistance cooperate with Parent as may be reasonably requested by AbbVie in writing that is customary necessary in connection with the arranging, obtaining arrangement of Debt Financing as may be customary and syndication of the Financingreasonably requested by Parent in writing, including using commercially reasonable best efforts with respect to, upon such request of Parent:
(i) participating in and assisting with the due diligence, syndication make appropriate officers or other marketing members of the Financing, including using reasonable best efforts with respect to management team (A) the participation by members of management of Allergan with appropriate seniority and expertise) available for participation at reasonable times in a reasonable number of meetings, lender presentations, road showsconference calls, drafting sessions, due diligence sessions and sessions meetings with prospective lenders, investors lenders and rating ratings agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie (A) furnish to Parent the Required Information, (B) provide reasonable assistance in the preparation of any reasonable and its Financing Sources with historical financial and other customary bank information memoranda (collectively, the “Financing Information”) including using commercially reasonable efforts to obtain customary authorization letters with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements specific to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan Company or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of reasonably included in any such repayment has been timely delivered to bank information memoranda from a senior officer of the holders of such indebtednessCompany) or private placement memoranda, rating agency presentations, marketing and/or syndication materials and cooperate reasonably with the Debt Financing Sources’ due diligence, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents respect to the reasonable use Company and its Subsidiaries and to the extent customary and reasonable, and (C) assist Parent in the preparation by Parent of all of Allergan’s logos customary pro forma financial statements and projections necessary in connection with the Debt Financing, it being understood that Parent shall be solely responsible for any pro forma cost savings, synergies, capitalization, ownership or other post-Closing pro forma adjustments;
(iii) assist in the preparation and negotiation and execution and delivery as of the Closing of any definitive financing documents (including any schedules and exhibits thereto) as may be reasonably requested by Parent including, without limitation, customary certificates;
(iv) facilitate the pledging of, and granting of security interests in, the collateral in connection with the Debt Financing, including using commercially reasonable efforts to execute and deliver as of Closing any customary pledge and security documents or other definitive financing documents, in each case as may be reasonably requested by Parent;
(v) cause the taking of corporate and other actions by the Company and its Subsidiaries reasonably necessary to permit the consummation of the Debt Financing on the Closing Date;
(vi) provide at least three Business Days prior to the Closing Date (provided that Parent has made such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing request at least three (3nine days prior to the Closing Date) Business Days in advance of the Completion Date such all material documentation and other information about Allergan and its Subsidiaries the Company as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates Parent to satisfy applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Notwithstanding anything to Act;
(vii) request from the contrary Company’s existing lenders such customary documents in this Section 7.9(a) or Section 7.9(b) below, (A) none of Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict connection with applicable Law and would be accurate in light refinancings of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries Company’s existing debt as reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, requested by Parent in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b)Debt Financing and collateral arrangements, Allergan shall, including customary payoff letters and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee related lien releases; and
(viii) comply with any obligations under the applicable Convertible Debenture Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light arise as a result of the facts execution, delivery or performance by the Company of this Agreement and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none consummation of the Allergan Boardtransactions contemplated hereby, officers of Allergan, or directors and officers of including the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), notices and (C) neither Allergan nor any of its Subsidiaries shall be certificates required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained in connection with syndication of the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover Rulestransactions contemplated hereby.
Appears in 2 contracts
Samples: Merger Agreement (Synnex Corp), Merger Agreement (Synnex Corp)
Financing Cooperation. (a) Until From the earlier of date hereof until the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9Closing, Allergan shall use its reasonable best efforts, and shall cause each of its Subsidiaries to use its reasonable best efforts, and Seller shall use its reasonable best efforts to provide, Seller shall cause IP Seller and the Acquired Companies to use reasonable best efforts to provide, and Seller shall use reasonable best efforts to cause each of its Representatives to use reasonable best efforts to provide, at Purchaser’s sole cost and their respective officersexpense, employees and advisors and other Representatives, including legal and accounting advisorscustomary cooperation, to use their reasonable best efforts, to provide to AbbVie and its Subsidiaries such assistance as may be the extent reasonably requested by AbbVie in writing that is customary in connection with Purchaser, necessary or advisable for the arranging, obtaining and syndication arrangement of the Debt Financing (including an offering of notes in lieu of any bridge facility for the purpose of financing the Transactions and related fees and expenses contemplated by this Agreement) or any Alternative Debt Financing, including using reasonable best efforts with respect to:
to do the following: (i) participating in (and assisting with the due diligence, syndication or other marketing causing appropriate members of Senior Management of the Financing, including using reasonable best efforts with respect Business to (Aparticipate) the participation by members of management of Allergan with appropriate seniority in a reasonable number of lender marketing meetings, presentations, drafting sessions, road shows, drafting sessions, due diligence sessions and calls and sessions and other customary syndication activities with ratings agencies and prospective lendersfinancing sources, investors in each case, in connection with the Debt Financing and rating agencies, with reasonable advance notice and at reasonable times and locations to be mutually agreed upon (it being understood that any such meetings may take place via videoconference or web conference at locations reasonably acceptable to Allergan and upon reasonable noticeSeller’s option), (Bii) assisting with AbbVie’s preparation of customary materials for registration statementsat least four (4) Business Days prior to the Closing Date, offering documents, private placement memoranda, bank providing all information memoranda, prospectuses, rating agency presentations regarding the Acquired Companies and similar documents the Business required in connection with the Debt Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K bank regulatory authorities under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to applicable “know your customer” and anti-money laundering rules and regulations, in each case, as reasonably requested by Purchaser in writing at least nine (9) Business Days prior to the Closing Date, (iii) furnishing Purchaser as promptly as reasonably possible with the Required Information, all of which is Compliant, (iv) furnishing Purchaser with reasonable information and materials with respect to the Acquired Companies to be used in Purchaser’s preparation of customary lender and investor presentations, rating agency presentations, bank information memoranda (including without limitationa version thereof that does not contain material non-public information), business projections (it being understood that Purchaser shall have sole responsibility therefor), offering documents, prospectuses, memoranda and other similar documents for the Debt Financing, including customary authorization letters related thereto authorizing the distribution of information to prospective lenders and containing customary representations with respect to the presence or absence of material non-public information about the Acquired Companies and regarding the accuracy of the information provided by, or with respect to, the USA PATRIOT ACT. Notwithstanding anything Acquired Companies; provided that any such information distributed (including any authorization letters) shall contain customary language which shall exculpate Seller and its Representatives and Affiliates with respect to any liability related to or responsibility for the contents of such information or related marketing materials by the recipients thereof, except to the contrary extent of the representations with respect to the presence or absence of material non-public information described above, (v) assisting with the preparation and/or filing of, and executing and delivering, any customary pledge and security documents and any other agreements, documents or certificates that facilitate the pledging of collateral as reasonably requested by Purchaser and required for the funding of the Debt Financing, including UCC termination statements, similar release documents (if any), and delivery of possessory collateral, all of which shall be effective only at or after Closing, (vi) cooperating with the Financing Sources’ due diligence efforts (including the provision of “backup” support), to the extent reasonable and customary for financings similar to the Debt Financing, (vii) causing the Acquired Companies’ independent auditors to provide, consistent with customary practice, customary auditors consents and customary “comfort” letters (including “negative assurance” comfort and change period comfort) as reasonably requested by the Financing Sources with respect to financial information relating to the Business included in the offering documentation for the Debt Financing (including using reasonable best efforts to obtain, to the extent applicable, consents of accountants for use of their reports in any materials relating to the Debt Financing and accountants’ comfort letters, in each case as reasonably requested by Purchaser or the Financing Sources) and participate in due diligence sessions and drafting sessions with the Financing Sources and (viii) taking all corporate actions, subject to the occurrence of the Closing, reasonably requested by Purchaser that are necessary or advisable to permit the consummation of the Debt Financing and to permit the proceeds thereof to be made available on the Closing Date to consummate the transactions contemplated by this Agreement; provided that nothing in this Agreement (including this Section 7.9(a6.7) will require any such cooperation or Section 7.9(b) below, action to the extent that it could (A) none of Allergan nor require Seller or any of its Affiliates or any of their respective Subsidiaries shall be required or officers, directors, managers, employees, advisors, accountants, consultants, auditors, agents or other Representatives to take pay (or permit the taking of any action pursuant agree to this Section 7.9(apay) or Section 7.9(b) below to (i) pay any commitment or other fee fee, make any other payment, provide (or agree to provide) any indemnities, reimburse any expenses or otherwise incur any liability or other obligation in connection with the Debt Financing, (B) require Seller or any of its Affiliates or any of their respective Subsidiaries or any individual who is a member of the board of directors (or other similar governing body) of such entities to pass resolutions or consents to approve, or authorize the execution of, the Debt Financing or any Definitive Agreement (other than third-party costs with respect to the Acquired Companies only, any such resolutions or consents that (x) are passed by Persons who will continue as members of the board of directors (or other similar governing body) of the Acquired Companies after the occurrence of the Closing and expenses that (y) are subject to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)and conditioned upon, and do not become effective until, the occurrence of the Closing), (iiC) require Seller or any of its Affiliates or any of their respective Subsidiaries or Representatives to enter into, execute or deliver any definitive financing documents Contract or any other agreement, certificate, document or instrument, or agree documentation (other than (1) the authorization letters referred to any change to or modification in clause (iv) of any existing agreement, certificate, document or instrument, in each case that would be effective prior this Section 6.7(a) and (2) with respect to the Completion Date or would be effective if the Completion does not occur (except Acquired Companies only, any such documents that (x) to are executed or delivered, as applicable, by Persons who will continue as officers or members of the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, board of directors (or other similar governing body) of the Acquired Companies after the occurrence of the Closing and (y) customary officers’ certificates relating are subject to and conditioned upon, and do not become effective until, the execution thereof that would not conflict with applicable Law and would be accurate in light occurrence of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) aboveClosing), (iiiD) provide access to impose any personal liability on the officers, directors, managers, employees, advisors, accountants, consultants, auditors, agents or disclose information that Allergan other Representatives of Seller, its Affiliates or their respective Subsidiaries, (E) unreasonably interfere with the operation of the business of Seller or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan Affiliates or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege)Subsidiaries or Representatives, (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (iiF) cause any representation or warranty in this Agreement to be breached by Allergan Seller, its Affiliates or its Subsidiaries or require any waiver or amendment of the terms of this Agreement, (G) conflict with or result in any violation of the organizational documents of Seller or its Subsidiaries or any of its Subsidiaries (unless waived by AbbVie)their respective Affiliates or any Legal Requirement, (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (ivH) result in the contravention of, or result in a material violation or breach of, or a default (with or without notice, lapse of time, or both) under, any material Contract to which Allergan Seller, its Subsidiaries or any of their respective Affiliates is party or by which it is bound (and, in each case, which was not entered into in contemplation of this Agreement), (I) provide access to or disclose information that Seller or its Subsidiaries reasonably determines would jeopardize any attorney-client or similar privilege or protection of Seller or any of its Affiliates or any of their respective Subsidiaries is or Representatives so long as Seller or its Subsidiaries shall have used commercially reasonable efforts to disclose such information in a partyway that would not waive such privilege or protection, (J) require Seller or any of its Affiliates or any of their respective Subsidiaries or Representatives to provide any solvency or other similar certificate of its chief financial officer or similar Representative, or (K) require Seller or any of its Affiliates or any of their respective Subsidiaries or Representatives to provide or prepare any projections, pro forma financial statements or other forward-looking financial information or any financial information other than the Required Information. Notwithstanding anything to the contrary herein, the Organizational Documents failure of Allergan Seller or any of its Affiliates or any of their respective Subsidiaries or Representatives to comply with this Section 6.7 shall not give rise to the failure of a condition precedent set forth in Section 10.1(b) or termination right pursuant to Section 11.1(b) unless Purchaser’s failure to obtain any portion of the proceeds of the Debt Financing was a result of the material breach of the obligations of Seller to comply with its obligations under this Section 6.7.
(b) Seller and the Acquired Companies hereby consent to the customary use of their logos in connection with the Debt Financing prior to the Closing Date; provided that such logos are used solely in a manner that is not intended or reasonably likely to (i) harm or disparage Seller or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public their reputation, goodwill or other confidential information provided by marks or on behalf of Allergan (ii) otherwise materially adversely affect Seller or any of its Subsidiaries Subsidiaries.
(c) Notwithstanding any other provision set forth herein, the Confidentiality Agreement or Representatives in any other agreement between Seller and Purchaser (or their respective Affiliates), Seller agrees that Purchaser and its Affiliates may share any confidential information with respect to Seller, the Acquired Companies and the Business with any Financing Sources, and that Purchaser and their respective Affiliates and such Financing Sources may share such information with potential Financing Sources in connection with any marketing efforts with respect to the Debt Financing; provided that the recipients of such information and any other confidential information contemplated to be provided by Seller and the Acquired Companies or any of their respective Affiliates pursuant to this Section 7.9 6.7 are subject to be kept confidential customary confidentiality arrangements, including “click through” confidentiality agreements and confidentiality provisions contained in customary bank books or offering materials.
(d) Upon written request by Seller, Purchaser will (i) upon the earlier of the Closing and termination of this Agreement in accordance with Section 11.1, reimburse Seller and its Subsidiaries for any reasonable and documented out-of-pocket costs or expenses (limited in the Confidentiality Agreement; providedcase of legal expenses, that Allergan acknowledges to the reasonable and agrees that the confidentiality undertakings that will be obtained documented out-of-pocket attorney’s fees of one firm of outside counsel) incurred or otherwise payable by Seller or any of its Affiliates or any of their respective Subsidiaries or Representatives in connection with syndication their cooperation requested by Purchaser pursuant to this Section 6.7 and (ii) indemnify, defend and hold harmless Seller and its Affiliates and their respective Subsidiaries and Representatives, and the successors and assigns of each of the foregoing Persons from and against any and all liabilities, losses, damages, claims, reasonable and documented out-of-pocket costs and expenses, interest, awards, judgments and penalties suffered or incurred by them in connection with the cooperation or efforts pursuant to this Section 6.7 or otherwise in complying with their obligations in connection with the arrangement of the Debt Financing will be (including actions taken in accordance with this Section 6.7) or any information used or misused in connection therewith, except to the extent that any of the foregoing arises from the bad faith, gross negligence, material breach or willful misconduct of Seller or its Subsidiaries, in each case, as determined by a court of competent jurisdiction in a form customary for use final and non-appealable decision.
(e) The parties hereto acknowledge and agree that the provisions contained in this Section 6.7 represent the syndication sole obligation of acquisition-related debt during a takeover offer period Seller and its Affiliates and any of their respective Subsidiaries or Representatives with respect to cooperation in compliance connection with the requirements arrangement of any financing (including the Panel Debt Financing) to be obtained by Purchaser with respect to the transactions contemplated by this Agreement (including the Debt Financing Commitment), and no other provision of this Agreement (including the Takeover RulesExhibits and Schedules hereto) or the Debt Financing Commitment shall be deemed to expand or modify such obligations.
Appears in 2 contracts
Samples: Transaction Agreement (DOVER Corp), Transaction Agreement (Terex Corp)
Financing Cooperation. (a) Until the earlier of Prior to the Completion and the valid termination of this Agreement pursuant Date, Xxxxxx shall provide to and in accordance with Article 9, Allergan shall use its reasonable best effortsXxxxx, and shall cause each of its Subsidiaries to use its reasonable best effortsto, and shall use its all reasonable best efforts endeavours to cause its and their the respective officers, employees and advisors and other Representatives, including legal and accounting advisorsaccounting, to use their reasonable best effortsof Xxxxxx and its Subsidiaries to, to provide to AbbVie Xxxxx and its Subsidiaries such assistance cooperation as may be reasonably requested by AbbVie in writing that is customary Xxxxx in connection with the arranging, obtaining syndication and syndication consummation of the FinancingFinancing (provided that such requested cooperation does not unreasonably interfere with the business or operations of Xxxxxx and its Subsidiaries), including using reasonable best efforts with respect to:
(i) participating in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (Bii) assisting with AbbVie’s the preparation of customary materials for registration statementsrating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations prospectuses and similar documents required or necessary in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related theretoFinancing, (Ciii) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection furnishing Xxxxx as promptly as reasonably practicable with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary pertinent information (collectively, the “Financing Information”) with respect to Allergan regarding Xxxxxx and its Subsidiaries as is may be reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of Xxxxx to consummate the applicable typeFinancing, including all Historical Financial Statements financial statements and financial and other customary information with data in respect to Allergan of Xxxxxx and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 S-1 under the Securities Act, including audit reports of annual financial statements audits thereof to the extent so required (which audit reports audits shall not be subject to any “going concern” qualificationsunqualified, provided, that Xxxxx acknowledges that no audits other than those set forth in the Scheme Document, the Joint Proxy Statement or the Form S-4 are required), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iiiiv) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan Xxxxxx and its Subsidiaries as may be reasonably requested in connection with their required to enable the delivery of any customary negative assurance opinions opinion and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
, (v) obtaining using all reasonable endeavours to obtain the consents of Allergan’s independent auditors to Xxxxxx’x accountants for use of their audit reports on the audited Historical Financial Statements financial statements of Allergan and to references to such independent auditors as experts Xxxxxx in any Marketing Material and registration statements and related government filings filed or used in connection with materials relating to the Financing;
, (vi) obtaining Allerganusing reasonable endeavours to obtain Xxxxxx’x accountant’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
reasonably requested by Xxxxx, (vii) causing reasonably cooperating with requests for due diligence to the extent customary and reasonable, (viii) using reasonable endeavours to ensure that the Financing to benefit benefits from the existing lender relationships of Allergan Xxxxxx and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan Xxxxxx and its Subsidiaries as is reasonably requested in writing by AbbVie at least ten (10) Business Days Xxxxx reasonably in advance of the Completion Date in connection with the Financing that relates to applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Notwithstanding anything ; provided that none of Xxxxxx or any of its Subsidiaries shall be required to pay any commitment or other fee or incur any other cost or expense in connection with the contrary in this Section 7.9(a) or Section 7.9(b) belowFinancing (other than fees and expenses of its accountants and attorneys that are promptly reimbursed by Xxxxx under Clause 7.8(b)); and provided, further, that (A) none of Allergan Xxxxxx nor any of its Subsidiaries shall be required to incur any liability (other than the fees and expenses of its accountants and attorneys that are promptly reimbursed by Xxxxx under Clause 7.8(b)) in connection with the Financing prior to the Completion Date, (B) the Xxxxxx Board and officers of Xxxxxx prior to the Completion Date and the directors and officers of the Subsidiaries of Xxxxxx prior to Completion Date shall not be required to adopt resolutions approving the agreements, documents and instruments pursuant to which the Financing is obtained, (C) none of Xxxxxx nor any of its Subsidiaries shall be required to execute, prior to the Completion Date, any definitive financing agreements, including any credit or other agreements in connection with the Financing, and (D) except as expressly provided above, none of Xxxxxx nor any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective corporate actions prior to the Completion Date or would be effective if to permit the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light consummation of the facts Financing.
(b) Xxxxx shall, promptly upon request by Xxxxxx, reimburse Xxxxxx for all reasonable documented out-of-pocket costs and circumstances at expenses incurred by Xxxxxx or its Subsidiaries in connection with such cooperation and shall indemnify and hold harmless Xxxxxx, its Subsidiaries and their respective Representatives (including the time delivered Xxxxxx Board and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan officers of Xxxxxx or any of its Subsidiaries reasonably determines would jeopardize prior to the Completion Date) from and against any attorney-client privilege of Allergan and all liabilities, losses, damages, claims, expenses, interest, judgments and penalties suffered or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, incurred by them in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b)syndication or consummation of the Financing, Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan any information utilised in connection therewith (other than information provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan Xxxxxx or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges terms hereof) and agrees that any action taken by them at the confidentiality undertakings that will be obtained in connection with syndication request of the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover RulesXxxxx or its Representatives.
Appears in 2 contracts
Samples: Transaction Agreement (Cooper Industries PLC), Transaction Agreement (Eaton Corp)
Financing Cooperation. (ai) Until Prior to the earlier of Closing, the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan shall Company will use its reasonable best efforts, and shall will cause each of its Subsidiaries to use its reasonable best efforts, and shall use its reasonable best efforts to cause its and their respective officers, employees and advisors and other Representatives, including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie Parent and its Subsidiaries such assistance as may be Merger Sub with all cooperation reasonably requested by AbbVie them to assist them in writing that is customary in connection with the arranging, obtaining arrangement and syndication consummation of the Debt Financing, including using reasonable best efforts with respect to. Such assistance shall include:
(i) participating in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions preparing and sessions with prospective lenders, furnishing to Parent and any financing sources and other financial institutions and investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting that are or may become parties to the inclusion or incorporation in any SEC filing related to the Debt Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial StatementsFinancing Sources”) and as promptly as practicable all available pertinent financial information (D) delivering customary authorization lettersincluding financial estimates, management representation lettersbudgets, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial forecasts and other customary information (collectively, the “Financing Information”forward-looking information) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements disclosures relating to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan Company and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financingby Parent or Merger Sub;
(ivB) causing Allergan’s independent auditors designating appropriate members of senior management of the Company to provide participate in a reasonable number of lender presentations (including a customary cooperation bank meeting with the Financing Sources acting as lead arrangers or agents for, and material prospective Financing Sources for, the Debt Financing), and due diligence sessions;
(vC) obtaining participation by senior management of the consents of Allergan’s independent auditors to use their audit reports on Company in the audited Historical Financial Statements of Allergan negotiation of, and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used assisting Parent in connection with the preparation of, and executing and delivering, definitive financing documents, including any pledge and security documents, guarantee and collateral documents and other schedules, exhibits, collateral materials, certificates and documents as may be reasonably requested by Parent, Merger Sub or the Lenders, and otherwise reasonably facilitating the pledging of collateral and the granting of security interests in respect of the Debt Financing, it being understood that such documents will not take effect until the Offer Closing;
(viD) obtaining Allergan’s independent auditors’ customary comfort letters furnishing Parent and assistance the Lenders, as promptly as practicable (but in any event, with respect to financial statements required to be filed with the accounting due diligence activities Company’s Form 10-Q or Form 10-K, as applicable, by no later than the filing deadline required therefor under the Exchange Act), with the audited and unaudited financial information required to be delivered pursuant to the Debt Commitment Letter (the “Required Financial Information”) (provided, that the timely filing by the Company of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan required financial statements on Form 10-K and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case Form 10-Q in accordance with the terms applicable rules and requirements of the definitive documents governing such indebtedness SEC shall satisfy the requirements of this definition) and all other financial information (provided including executive level financial analyses for the Company and its Subsidiaries, on a consolidated basis, with respect to each calendar month ended during the period between the date of this Agreement and the Closing Date), business and other financial data, audit reports and other information regarding the Company and its Subsidiaries of the type and for the time periods that any such notice are reasonably requested by Parent, Merger Sub or payoff letter shall be expressly conditioned on the Completion)Lenders;
(ixE) procuring consents delivering notices of prepayment within the time periods required by the relevant agreements governing Indebtedness and obtaining customary payoff letters, lien terminations and instruments of discharge with respect to the reasonable use Indebtedness required by the Debt Commitment Letters to be terminated, in each case, reasonably satisfactory to Parent, and giving any other necessary notices and otherwise cooperating in the prepayment in full and termination in full of any such Indebtedness and the termination in full of all guaranties and security interests in connection therewith;
(F) reasonably facilitate the granting of Allergan’s logos security interests (and perfection thereof) in collateral in connection with the Debt Financing (including the delivery of stock certificates), and the preparation, execution and delivery of guarantees, mortgages, other definitive financing documents or other certificates or documents as may be reasonably requested by Parent or Merger Sub, provided that all of the foregoing are not effective until the Offer Closing;
(G) reasonably cooperate in satisfying the conditions precedent set forth in the Debt Financing Letters or any definitive documentation relating thereto, including obtaining insurance certificates and endorsements;
(H) consenting to the use of all logos of the Company and its Subsidiaries in connection with the Debt Financing so long as such logos (i) are used solely in a manner that is not intended to and is not reasonably or likely to harm or disparage Allergan the Company or any of its Subsidiaries or the reputation or goodwill of Allergan the Company or any of its Subsidiaries)Subsidiaries and (ii) are used solely in connection with a description of the Company, its business and products or the transactions contemplated hereby; and
(xI) providing at least three (3) Business Days in advance of furnishing Parent and the Completion Date such Lenders with all documentation and other information about Allergan related solely to the Company and its Subsidiaries as is reasonably requested in writing required by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates U.S. regulatory authorities pursuant to applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Notwithstanding anything to the contrary in this Section 7.9(a) or Section 7.9(b) below, (A) none of Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), .
(ii) execute or deliver Notwithstanding any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification provision of any existing agreement, certificate, document or instrument, in each case that would be effective prior this Agreement to the Completion Date or would be effective if contrary, nothing in this Agreement will require the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan Company or any of its Subsidiaries reasonably determines to: (A) enter into any definitive agreement before the occurrence of the Offer Closing; (B) give any indemnities the effectiveness of which is not conditioned on the occurrence of the Offer Closing; (C) provide any information the disclosure of which is prohibited or restricted under applicable Law, is legally privileged or would jeopardize violate confidentiality obligations owing to third parties; or (D) take any attorney-client privilege action that would violate any applicable Laws or would result in a violation or breach of, or default under, any Material Contract. No action, liability or obligation of Allergan or the Company, any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use or any of their respective reasonable best efforts directors, officers, employees, agents or other Representatives pursuant to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege)certificate, (iv) deliver agreement, arrangement, document or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel instrument relating to the trustee under Debt Financing (other than the applicable Indenture that authorization and representation letters referred to above) will be effective until the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty Offer Closing. Nothing in this Agreement to be breached by Allergan will require: (x) any directors, officers, employees, agents or any other Representatives of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan the Company or any of its Subsidiaries to incur deliver any certificate or opinion or take any other action prior to the Offer Closing or that would reasonably be expected to result in personal liability to such director, officer, employee, agent or other representative; or (ivy) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained in connection with syndication members of the Financing will be in a form customary for use in Company Board to approve any financing or Contracts related thereto prior to the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover RulesOffer Closing.
Appears in 2 contracts
Samples: Merger Agreement (MGC Parent LLC), Merger Agreement (MGC DIAGNOSTICS Corp)
Financing Cooperation. (a) Until From the date hereof until the Closing, or the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9Section 8.01, Allergan shall use its reasonable best effortsthe Company shall, and shall cause each of its Subsidiaries to use its reasonable best effortsto, and shall use its commercially reasonable best efforts to cause its and their respective officers, employees and employees, advisors and other RepresentativesRepresentatives to, including legal and accounting advisors, to use their commercially reasonable best efforts, efforts to provide to AbbVie and its Subsidiaries such assistance as may be customary cooperation reasonably requested by AbbVie Parent in writing that is customary a timely manner in connection with the arrangingdocumentation and consummation of any debt financing arranged by Parent or its Affiliates in connection with the transactions contemplated hereby (the “Debt Financing”), obtaining and syndication of the Financing, including which shall include using commercially reasonable best efforts with respect to:
: (i) participating in at reasonable times, upon reasonable advanced notice and assisting with the due diligenceat reasonable locations, syndication or other marketing cause appropriate members of the Financing, including using reasonable best efforts with respect management team of the Company to (A) the participation by members of management of Allergan with appropriate seniority participate in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions similar presentations to and with prospective lenders, investors the Debt Financing Sources and rating agencies, at times in each case, to the extent usual and at locations customary for debt financings of a type similar to the Debt Financing and reasonably acceptable to Allergan and upon reasonable noticerequired in connection with the Debt Financing, (Bii) assisting furnish Parent and the Debt Financing Sources with AbbVie’s the historical financial statements of the Company and its Subsidiaries and such other available financial information of the Company and its Subsidiaries reasonably requested by Parent in connection with the Debt Financing that is customarily required for the arrangement of debt financings similar to the Debt Financing, (iii) furnish Parent and the Debt Financing Sources with information regarding the Company and its Subsidiaries in connection with the preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuseslender presentations, rating agency presentations and other similar documents and materials that are usual and customary for debt financings of a type similar to the Debt Financing and reasonably required in connection with the Debt Financing, (iv) assist, to the extent reasonably requested by Parent, in the preparation of customary definitive financing documentation for the Debt Financing (collectivelyincluding, “Marketing Material”) to the extent reasonably requested by Parent, any customary authorization letters that are reasonably satisfactory to the Company, officer’s certificates and due diligence sessions related theretoschedules), (Cv) delivering and consenting facilitate the pledging of collateral to the inclusion or incorporation in any SEC filing related extent required by the Debt Financing Sources to be pledged on the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated Closing Date (including by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings providing reasonable cooperation in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions release of related Liens and disclaimers);
(iitermination of security interests) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating provide, at least three Business Days prior to the repayment or refinancing of any indebtedness for borrowed Closing Date, all documentation required by applicable “know your customer” and anti-money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected therebylaundering Applicable Laws, including customary payoff letters and (the USA PATRIOT Act, that has been requested in writing at least ten Business Days prior to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring Closing Date. The Company consents to the reasonable use of all any logos of Allergan’s logos the Company or its Subsidiaries in connection with the Debt Financing (in a manner usual and customary for debt financings of a type similar to the Debt Financing; provided that such logos are used solely in a manner that is not intended to and is not to, or reasonably likely to to, harm or disparage Allergan the Company or its Subsidiaries or the reputation or goodwill of Allergan the Company or its Subsidiaries or any of their respective products, services, offerings or intellectual property rights.
(b) Notwithstanding anything in this Agreement to the contrary, nothing contained in this Agreement shall require the Company, any of its Subsidiaries or any of their respective officers, employees, advisors and other Representatives to (I) cooperate to the extent such cooperation would interfere unreasonably (in the judgment of the Company) with the business or operations of the Company or any of its Subsidiaries); and
, (xII) providing at least three (3) Business Days in advance encumber any of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance assets of the Completion Date in connection with the Financing that relates to applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Notwithstanding anything to the contrary in this Section 7.9(a) Company or Section 7.9(b) below, (A) none of Allergan nor any of its Subsidiaries shall or otherwise be required an issuer, guarantor or other obligor with respect to take the Debt Financing prior to the Closing Date, (III) pay, or permit the taking of any action pursuant commit to this Section 7.9(a) or Section 7.9(b) below to (i) pay pay, any commitment or other fee or incur make any liability other payment, in each case, in connection with the Debt Financing prior to the Closing Date, (other than third-party costs and expenses IV) take, or commit to take, any action that are would reasonably be expected to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)conflict with, violate or result in a breach of or default under any contract in effect as of the date hereof (including this Agreement), any organizational document of the Company or any of its Subsidiaries or any Applicable Law, (iiV) take, or commit to take, any action to authorize or approve, or execute or deliver any definitive financing documents or any other agreement, certificatecertificate or other document related to the Debt Financing (other than the authorization letters referred to in clause (iv) above) unless (x) such Person will continue to serve as a director or manager or officer, as the case may be, after the Closing Date and (y) the effectiveness of such authorization or approval or agreement, certificate or other document is expressly made contingent upon the occurrence of the Effective Time, (VI) incur, or instrumentcommit to incur, or be required to reimburse, or commit to reimburse, any cost, expense, liability or obligation or provide or agree to provide any change to or modification of any existing agreement, certificate, document or instrumentindemnity, in each case that would be effective case, in connection with the Debt Financing prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental IndenturesClosing Date, (yVII) customary officers’ certificates relating to the execution thereof take any action that would not conflict with applicable Law and would be accurate in light could subject any director, officer, employee, agent, manager, consultant, advisor or other representative of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant Company or any of its Subsidiaries to the clause (i)(D) above)any actual or potential personal liability, (iiiVIII) provide any information regarding any post-Closing or pro forma cost savings, synergies, capitalization, ownership or other post-Closing pro forma adjustments, or prepare any pro forma financial statements or other post-Closing financial information, (IX) provide access to or disclose information that Allergan the Company determines in good faith could jeopardize any attorney client privilege of, or conflict with any confidentiality obligations binding on, the Company or any of its Subsidiaries reasonably determines would jeopardize or (X) deliver any attorney-client privilege financial or other information that is not currently readily available or prepared in the ordinary course of Allergan or any business of the Company and its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached requested by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable LawParent. AbbVie shall cause all All non-public or other confidential information provided by or on behalf of Allergan the Company or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to 6.17 shall be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges . Parent and agrees Merger Sub acknowledge and agree that the confidentiality undertakings that will be obtained in connection with syndication obligations of the Financing will be in a form customary for use in Company under this Section 6.17 are the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements sole obligations of the Panel Company and its Subsidiaries with respect to the Takeover RulesDebt Financing and no other provision of this Agreement shall be deemed to expand or modify such obligation.
Appears in 2 contracts
Samples: Merger Agreement (DSP Group Inc /De/), Merger Agreement (DSP Group Inc /De/)
Financing Cooperation. (a) Until On and prior to the earlier Closing Date, upon the request of Purchaser, the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan Seller shall use its reasonable best efforts, and shall cause each of its Subsidiaries to use its reasonable best effortsefforts to, and shall use its reasonable best efforts to cause the Company, its Subsidiaries, and their respective officersRepresentatives to, employees and advisors and other Representatives, including legal and accounting advisors, reasonably cooperate in connection with any financing sought to use their reasonable best efforts, to provide to AbbVie and its Subsidiaries such assistance as may be reasonably requested obtained by AbbVie in writing that is customary Purchaser in connection with the arrangingtransactions contemplated by this Agreement, obtaining and syndication including any offering of securities as contemplated in the Debt Commitment Letter (the “Financing”), including, to the extent related to the Financing, including using reasonable best efforts with respect to:
: (i) participating causing the Company’s management team, with appropriate seniority and expertise, to participate in due diligence and assisting with the due diligencedrafting sessions and rating agency presentations, syndication or other marketing of the Financing, including using reasonable best efforts if any; (ii) providing information with respect to the Company, including reserve reports and lease operating statements, reasonably requested by Purchaser or its Financing Sources; (Aiii) preparing and furnishing to Purchaser the participation Required Information and such other financial information concerning the Company as reasonably requested by members Purchaser, including, without limitation, balance sheet, income statements and statements of management cash flows for each of Allergan the most recently completed fiscal year ended at least ninety (90) days before the Closing Date, which such annual statement shall have been audited by independent accountants of the Company in accordance with appropriate seniority in a reasonable number of meetingsGAAP and each subsequent interim financial quarter ended after December 31, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times 2019 and at locations reasonably acceptable to Allergan and upon reasonable noticeleast forty-five (45) days before the Closing Date, which such interim statements shall have been reviewed by the independent accountants for the Company as provided in the procedures specified by AU-C 930; (Biv) assisting with AbbVie’s in the preparation of customary materials for registration statementsSEC filings to be made by Purchaser, offering documentsmemoranda, private placement memoranda, prospectuses, bank confidential information memoranda, prospectuses, rating agency presentations and similar documents (“Offering Documents”), including furnishing such operating and other data or information relating to the assets and operations of the Company as reasonably requested by Purchaser for inclusion therein; (v) (A) causing the independent accountants of the Company and its Subsidiaries to cooperate with Purchaser, including by participating in drafting sessions and accounting due diligence sessions, obtaining the consent of, and customary “comfort” letters from, such independent accountants (including by providing customary management letters and requesting legal letters to obtain such consent) in connection with any securities offering by Purchaser if necessary or desirable for Purchaser’s use of the Company or its Subsidiaries’ financial statements, including written consents to use their audit reports relating to the Company and its Subsidiaries and to be named as an “Expert” in any document related to any such securities offering, (B) causing independent reserve engineers of the Company and its Subsidiaries to cooperate with Purchaser, including by participating in drafting sessions and reserve engineer due diligence sessions, obtaining the consent of, and customary comfort letters from such independent reserve engineers (including, if necessary, by providing customary management letters and requesting legal letters to obtain such consent) in connection with any securities offering by Purchaser if necessary or desirable for Purchaser’s use of the Company or its Subsidiaries’ reserve report, including any necessary written consents to use their reserve reports relating to the Company and its Subsidiaries and to be named as an “Expert” in any document related to such securities offering and (C) cooperating with Purchaser’s legal counsel or independent reserve engineers in connection with any legal opinions that such legal counsel may be required to deliver or “comfort” letter that such independent engineers may be reasonably required to deliver, in each case, in connection with any securities offering; (vi) cooperating reasonably with any documentary or other due diligence requests, to the extent customary and reasonable; (vii) providing customary authorization letters authorizing the distribution of information to prospective lenders and containing customary representations that such information does not contain a misstatement or omission; (viii) assisting in the amendment or novation of any of the Company’s Hxxxxx other than set forth on Schedule 6.24 of the Company Disclosure Letter, as applicable and in each case, on terms that are reasonably requested by the Purchaser; provided that no obligation of the Company under any such amendments or novations shall be effective until the Closing Date; (ix) furnishing promptly all documentation and other information required by any Governmental Entity or as reasonably requested by any financing source under applicable “know your customer,” anti-bribery, anti-money laundering and beneficial ownership rules and regulations, including the PATRIOT Act, the FCPA, and economic sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department; (x) executing and delivering any definitive financing documents (and taking all organizational actions relating thereto, subject to the occurrence of the Effective Time), including any necessary pledge and security documents, as reasonably requested by Purchaser and otherwise facilitating the pledging of collateral in connection with the Financing, including taking reasonable actions necessary to permit the Financing Sources to evaluate the Company’s and its Subsidiaries’ assets, inventory, cash management and accounting systems, policies and procedures relating thereto for the purpose of establishing collateral arrangements (including establishing bank and other accounts and blocked account and control agreements in connection with the foregoing), and providing customary title information and title opinions; provided that no obligation of the Company or any of its Subsidiaries under any such definitive financing documents, including any pledge and security documents, shall be effective until the Closing Date, (xi) assisting with the repurchase, redemption and repayment of the Company’s existing indebtedness, including in connection with the delivery of required notices and obtaining the Payoff Letter and other documents required by Section 8.2(d) in connection with Closing.
(b) Notwithstanding the foregoing, (i) Seller, the Company and its Subsidiaries shall not be required to take any action pursuant to clause (a) above if such action would cause any representation, warranty, agreement or covenant contained in this Agreement to be breached (unless waived by Purchaser), (ii) the Seller shall not be required to pay any commitment or other similar fee or incur any other liability or obligation in connection with the Financing (collectivelyat any time, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing none of the historical audited consolidated financial statements and unaudited consolidated interim financial statements Company or any of Allergan included its Subsidiaries shall be required to pay any commitment or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings other similar fee or incur any other liability or obligation in connection with the Marketing Material Financing prior to the Closing, (in each caseiii) neither the Seller nor any of their officers, as applicabledirectors, subject or employees shall be required to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) execute or enter into or perform any agreement with respect to Allergan the Financing at any time, and none of the Company or its Subsidiaries as is reasonably requested by AbbVie nor any of their officers, directors, or its Financing Sources and customarily employees shall be required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information to execute or enter into or perform any agreement with respect to Allergan and its Subsidiaries (A) of the type Financing that is not contingent upon the Closing or that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements effective prior to the extent so Closing, (iv) none of Seller, the Company or any of its Subsidiaries, nor their respective officers, managers, directors or employees shall be required to execute any solvency certificate in connection with the Financing, (which audit reports v) no obligation of the Company or its Subsidiaries or any of their Representatives undertaken pursuant to the foregoing shall not be subject to any “going concern” qualifications)effective until the Closing, or (Bvi) reasonably necessary to permit AbbVie none of Seller, the Company and their respective Subsidiaries and Representatives shall be required to prepare pro forma financial statements customary for Financings information or projections, which shall be the responsibility of Purchaser, and (vii) no director, officer, or employee of Seller or the Company shall be required to execute any agreement or certificate in his or her individual, rather than official, capacity. For the avoidance of doubt, receipt of the applicable type;Financing is not a condition to the Purchaser’s obligation to consummate the Transactions.
(iiic) providing to AbbViePromptly upon the Seller’s legal counsel request, all reasonable and its independent auditors such customary documents documented out-of-pocket fees and other customary information relating to Allergan expenses incurred by the Seller, the Company and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts assisting in any Marketing Material financing arrangement pursuant to this Section 6.24 shall be reimbursed by the Purchaser, and, in the event the Closing shall not occur, the Purchaser shall indemnify and registration statements and related government filings filed or used in connection with hold harmless the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with Seller, the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan Company, their respective Subsidiaries and its Subsidiaries;
(viii) providing documents reasonably requested and their Representatives from and against any and all losses, damages, costs or expenses suffered or incurred by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos them in connection with the Financing and any information contained in the Offering Documents in connection therewith, except (provided that such logos are used solely in a manner that is not intended i) with respect to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries information supplied by Seller or the reputation Company specifically for inclusion or goodwill incorporation by reference in any Offering Document or (ii) to the extent such losses and damages arise from fraud, bad faith or willful misconduct of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of Seller, the Completion Date such documentation and other information about Allergan Company, their respective Subsidiaries and its Subsidiaries as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACTtheir Representatives. Notwithstanding anything to the contrary in this Section 7.9(a) or Section 7.9(b) belowAgreement, (A) none of Allergan nor any of out-of-pocket fees and expenses incurred by the Seller, the Company and its Subsidiaries shall be required to take or permit the taking of in connection with assisting in any action financing arrangement pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than third-party costs 6.24 shall not be considered Transaction Costs for purposes of this Agreement; provided it is understood that general auditor and legal expenses that are to be promptly reimbursed by AbbVie upon request by Allergan the Seller, the Company its Subsidiaries would have incurred regardless of whether cooperation was requested pursuant to this Section 7.9(c)), 6.24 shall not be so excluded.
(iid) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior The Company hereby consents to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light use of the facts trademarks, service marks and circumstances at logos of the time delivered Company and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light arrangement of the facts Financing and circumstances at the time delivered)), (v) be an issuer repayment or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none refinancing of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained indebtedness in connection with syndication of the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover RulesTransactions.
Appears in 2 contracts
Samples: Securities Purchase Agreement (WPX Energy, Inc.), Securities Purchase Agreement (WPX Energy, Inc.)
Financing Cooperation. (a) Until Prior to the earlier of Merger Closing, the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan shall use its reasonable best effortsCompany shall, and shall cause each of its Subsidiaries to use its reasonable best effortsto, and shall use its reasonable best efforts to cause its and their respective officersrepresentatives to, employees and advisors and other Representatives, including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie and its Subsidiaries Parent such assistance as may be cooperation reasonably requested by AbbVie in writing Parent that is reasonably customary to assist Parent and is reasonably customary in causing the conditions in the Debt Financing Commitment to be satisfied and such cooperation as is otherwise reasonably requested by Parent in connection with the arranging, Debt Payoff and obtaining the Debt Financing in accordance with the terms and syndication conditions of the FinancingDebt Financing Commitments, including using reasonable best efforts with respect tocooperation that consists of:
(i) participating in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, due diligence sessions, drafting sessions, due diligence sessions and sessions with rating agencies and prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely providing customary authorization and representation letters to Financing Sources authorizing the distribution of information to prospective lenders or investors on a confidential basis;
(iii) assisting Parent in the preparation of customary rating agency presentations, lender presentations and high yield road show presentations or memoranda, customary bank offering memoranda, syndication memoranda, private offering memoranda, and other marketing materials or memoranda, including business and financial projections, reasonably requested by Parent or Financing Sources, in each case, in connection with the Debt Financing;
(iv) assisting Parent and Sub in procuring the execution and delivery, effective as of the Effective Time, by the officers of the Company and its Subsidiaries of any customary securities purchase agreement, credit agreement, indentures, notes, guarantees, pledge and security documents, supplemental indentures, currency or interest hedging arrangements, other definitive financing documents, a certificate of the chief financial officer of the Company reasonably satisfactory to the Financing Sources with respect to solvency of the Company and its Subsidiaries on a consolidated basis, a customary “borrowing base” certificate, and other certificates or documents and back-up therefor and for legal opinions as may be reasonably requested by Parent or Financing Sources (including consents of accountants for use of their reports in any materials relating to the Debt Financing) and otherwise reasonably facilitating the pledging of collateral, and the granting of security interests;
(A) furnishing AbbVie Parent and its Financing Sources as promptly as practicable with historical financial audited consolidated balance sheets and other customary information (collectivelyrelated statements of income, stockholders’ equity and cash flows of the “Financing Information”) with respect to Allergan Company and its Subsidiaries as is reasonably requested by AbbVie or prepared in accordance with GAAP for the three most recently completed fiscal years ended at least 90 days before the Merger Closing Date and unaudited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of the Company and its Subsidiaries prepared in accordance with GAAP for each subsequent fiscal quarter that ended at least 45 days before the Merger Closing Date and for the comparable quarter of the prior fiscal year, (B) furnishing Parent and its Financing Sources and customarily required in Marketing Material for Financings of as promptly as practicable with information regarding the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan Company and its Subsidiaries (A) of the type and form customarily included in private placements under Rule 144A of the Securities Act, including financial statements and pro forma financial statements (including as of and for the twelve-month period ending on the last day of the most recently completed four-fiscal quarter period ended at least 45 days before the Merger Closing Date, prepared after giving effect to the Transactions and the Financing as if the Transactions and the Financing had occurred as of such date (in the case of balance sheets) or at the beginning of such period (in the case of other financial statements) (provided, that would such pro forma financial statements shall not be considered a part of the Required Information unless Parent has provided to the Company by at least five days after the end of the ABL Access Period (x) the information relating to the proposed debt and equity capitalization of the Company and its Subsidiaries after the Effective Time that is reasonably necessary for the Company to prepare the pro forma financial statements and (y) any other information that may be reasonably and timely requested by the Company concerning the assumptions underlying the pro forma adjustments to be made in such pro forma financial statements, which assumptions shall be the responsibility of Parent), in each case, prepared in accordance with GAAP, audit reports, business and other financial data of the type required in a registered offering of debt securities by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 promulgated under the Securities Act, including audit reports of annual financial statements or as otherwise necessary to receive from the Company’s independent accountants (and any other accountant to the extent so required financial statements audited or reviewed by such accountants are or would be included in such offering memorandum) customary “comfort” (which audit reports shall not including “negative assurance” comfort), together with drafts of customary comfort letters that such independent accountants are prepared to deliver upon the “pricing” of any high-yield bonds being issued in lieu of any portion of the Debt Financing, with respect to the financial information to be subject included in such offering memorandum and which, with respect to any “going concern” qualifications)interim financial statements, or shall have been reviewed by the Company’s independent accountants as provided in AU 722 and (BC) providing Parent and its Financing Sources for a period of 50 calendar days from and after the date of this Agreement with all access and information reasonably necessary to permit AbbVie to prepare pro forma financial statements customary and customarily required for Financings the completion of field audits and appraisals of the applicable type;
(iii) providing to AbbVieCompany’s legal counsel and its independent auditors such customary documents Subsidiaries’ accounts receivable and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested inventory in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating obtaining an asset-based loan facility pursuant to the Financing;
Debt Financing Commitments (ivsuch 50 calendar day period, the “ABL Access Period”) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(all such information and documents in this clause (v) obtaining to be furnished by the consents of Allergan’s independent auditors to use their audit reports on Company, together with any replacements or restatements thereof, and supplements thereto, if any such information would go stale or otherwise be unusable under customary practices for such purposes, the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing“Required Information”);
(vi) obtaining Allerganusing reasonable best efforts to cooperate with Parent and Parent’s independent auditors’ efforts to obtain customary comfort letters and assistance reasonable corporate and facilities ratings, landlord waivers and estoppels, non disturbance agreements, Phase I environmental site assessments, surveys and title insurance (including providing reasonable access to Parent and its representatives to all owned or leased real property) as reasonably requested by Parent with respect to the accounting due diligence activities of the Financing SourcesDebt Financing;
(vii) causing using reasonable best efforts to cooperate with Parent and Parent’s efforts to (x) permit Financing Sources to evaluate the Financing to benefit from the existing lender relationships of Allergan Company’s and its Subsidiaries’ current assets, inventory, cash management and accounting systems, policies and procedures relating thereto for the purpose of establishing collateral arrangements to the extent customary and reasonable and (y) establish bank and other accounts and blocked account agreements and lock box arrangements in connection with the foregoing, provided that such agreements and arrangements will only be effective upon the Merger Closing;
(viii) providing documents reasonably requested by AbbVie or the granting Financing Sources relating Sources, upon reasonable request, access to the repayment or refinancing Company’s and its Subsidiaries’ respective properties, assets and cash management and accounting systems (including cooperating in and facilitating the completion of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date field examinations, collateral audits, asset appraisals, surveys, Phase I environmental site assessments and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completionengineering/property condition reports);
(ix) procuring consents delivery of notices of prepayment within the time periods required by the relevant agreements governing Indebtedness and obtaining customary payoff letters, lien terminations and instruments of discharge to be delivered at the reasonable use Merger Closing, and giving any other necessary notices, to allow for the payoff, discharge and termination in full on the Merger Closing, of all Indebtedness other than as set forth in Section 6.10(a)(ix) of Allergan’s logos in connection with the Financing Parent Disclosure Schedule (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries“Debt Payoff”); and;
(x) providing at least three (3) Business Days in advance of the Completion Date such furnishing Parent and its Financing Sources promptly with all documentation and other information about Allergan and its Subsidiaries as is which any lender providing or arranging Debt Financing has reasonably requested in writing and that such lender has determined is required by AbbVie at least ten (10) Business Days in advance of the Completion Date regulatory authorities in connection with the such Debt Financing that relates to under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, limitation the USA PATRIOT ACT. Notwithstanding anything to Act; and
(xi) otherwise cooperating with the contrary marketing efforts of the Parent and its Financing Sources for any of the Financing as necessary or reasonably requested by the Parent or its Financing Sources; provided that (u) nothing in this Section 7.9(a) 6.10 shall require such cooperation to the extent it would require the Company to waive or Section 7.9(b) belowamend any terms of this Agreement or agree to pay any fees or reimburse any expenses prior to the Merger Closing or after termination of this Agreement for which it has not received prior reimbursement by or on behalf of Parent, (Av) the pre-Closing board of directors and officers of the Company and the pre-Closing directors and officers of Subsidiaries of the Company shall not be required to adopt resolutions approving the agreements, documents and instruments pursuant to which any portion of the Financing is obtained, (w) except as set forth in clauses (ii) and (ix) of this Section 6.10(a), none of Allergan the Company nor any of its Subsidiaries shall be required to execute, prior to the Merger Closing, any definitive financing documents, including any credit or other agreements, pledge or security documents, or other certificates, legal opinions or documents in connection with any portion of the Financing, unless such documents, agreements, certificates or opinions will only be effective as of the Effective Time, (x) except as expressly provided above, none of the Company nor any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective corporate actions prior to the Completion Date or would be effective if Closing to permit the Completion does not occur (except (x) to consummation of the extent required by Section 7.9(b), applicable Allergan Supplemental IndenturesFinancing, (y) customary officers’ certificates relating nothing herein shall require such cooperation from the Company or its Affiliates to the execution thereof that extent it would not conflict unreasonably interfere with applicable Law and would be accurate in light the ongoing operations of the facts and circumstances at the time delivered Company or its Affiliates, and (z) none of the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan Company or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan Affiliates or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts Representatives shall have any liability under any certificate, agreement, arrangement, document or instrument relating to cause any such information to be disclosed in a manner that would not result portion of the Financing except, in the loss case of any such privilege)the Company and its Subsidiaries, upon the Merger Closing.
(ivb) deliver or cause Parent shall promptly, upon request by the Company, reimburse the Company for all of its Representatives to deliver any legal opinion or negative assurance letter and its Affiliates’ documented reasonable out-of-pocket costs and expenses (except, including accountants’ fees and reasonable attorneys’ fees) incurred by the Company and its Affiliates in connection with the entry into an Allergan Supplemental Indenture required cooperation of the Company and its Affiliates contemplated by this Section 7.9(b)6.10.
(c) Parent shall indemnify and hold harmless the Company, Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicableits Principal Stockholders, to deliver a customary opinion of counsel to its controlled Affiliates and its and their respective directors, officers, advisors and Representatives (including the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or pre-Closing directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan Company or any of its Subsidiaries Subsidiaries) (unless waived collectively, the “Indemnitees”) for and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred by AbbVie), them in connection with the arrangement of the Financing and/or the provision of information utilized in connection therewith (iii) cause any director, officer other than information provided in writing specifically for such use by or employee or shareholder on behalf of Allergan the Company or any of its Subsidiaries Subsidiaries) to incur the fullest extent permitted by applicable Law, other than to the extent any personal liability or of the foregoing arises from (ivi) result in a material violation or breach ofthe willful misconduct, gross negligence, or a default undermaterial breach of its obligations of any of the Company, any its Subsidiaries, its Principal Stockholders, its controlled Affiliates or its or their respective directors, officers, employees, attorneys, accountants or other advisors or Representatives (unless such willful misconduct, gross negligence or material Contract breach results from an action taken (or not taken) by an Indemnitee at the request of Parent or Sub or in order to which Allergan comply (or cause the Company or any of its Subsidiaries is a party, Affiliates to comply) with obligations of the Organizational Documents of Allergan or its Subsidiaries Company or any applicable Law. AbbVie of its Affiliates under this Agreement or any of the Financing Commitments, in which case the exclusion contained in this clause (i) shall cause all non-public not apply) or other confidential (ii) any information provided by or on behalf of Allergan the Company or any of its Affiliates in connection with the Debt Financing to the extent such information is the subject of any of the representations or warranties set forth in Article III and where such information would constitute a breach of any such representation or warranty. Parent’s obligations under Section 6.10(b) and this Section 6.10(c) are referred to collectively as the “Reimbursement Obligations”.
(d) The Company shall or shall cause its Subsidiaries to supplement the Required Information and the other information contemplated by clause (iii) of paragraph (a) on a reasonably current basis to the extent that any such information, to the Knowledge of the Company, contains any material misstatement of fact or omits to state any material fact necessary to make such information not materially misleading. The Company hereby consents to the use of its and its Subsidiaries’ logos in connection with the Financing; provided that such logos are used solely in a manner that is not intended to or reasonably likely to harm or disparage the Company or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained in connection with syndication reputation or goodwill of the Financing will be in a form customary for use in the syndication Company or any of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover Rulesits Subsidiaries.
Appears in 2 contracts
Samples: Merger Agreement (CD&R Associates VIII, Ltd.), Merger Agreement (Emergency Medical Services CORP)
Financing Cooperation. (ai) Until During the earlier of period from the Completion and the valid termination date of this Agreement pursuant to and the Effective Time, the parties hereto shall cooperate in accordance good faith to implement any necessary, appropriate or desirable arrangements in connection with Article 9each party’s indentures, Allergan shall credit agreement or other documents governing or relating to indebtedness with respect to any financing matters in connection with the transactions contemplated by this Agreement.
(ii) Raytheon will use its reasonable best efforts, and shall cause each of its Subsidiaries to use its reasonable best efforts, and shall use its reasonable best efforts to cause deliver to UTC two (2) business days prior to the Effective Time an executed copy of a customary payoff letter from the administrative agent under the Raytheon Revolver, in form and substance reasonably satisfactory to UTC relating to the repayment in full of all obligations thereunder and the termination of all commitments in connection therewith.
(iii) The parties hereto acknowledge and agree that, prior to the Effective Time, it may be necessary for UTC and/or Raytheon to enter into financing transactions (including the raising of new financing, the refinancing of existing indebtedness, the retirement of existing indebtedness and/or producing amendments, modifications or consents in relation to existing indebtedness) (any such financing transaction, a “Pre-Merger Financing Transaction”). In connection with any Pre-Merger Financing Transaction, each of Raytheon (with respect to itself and its subsidiaries) and their respective officers, employees UTC (with respect to itself and advisors and other Representatives, including legal and accounting advisorsthe subsidiaries of UTC RemainCo) agree, to the extent requested by the other, to cooperate with respect to, and use their reasonable best efforts, efforts to provide such information to AbbVie and its Subsidiaries such assistance the other as may be reasonably requested by AbbVie in writing that is customary be, necessary or desirable in connection with the arrangingstructuring, obtaining marketing and syndication execution of the Financingany Pre-Merger Financing Transaction, including using reasonable best efforts with respect to:
(iA) participating in meetings and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions in connection with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable noticethe Pre-Merger Financing Transaction, (B) assisting with AbbVie’s the preparation of customary materials for registration statements, offering documents, private placement memoranda, bank any portion of the disclosure in relation to the Pre-Merger Financing Transaction that relates to the Merger or the transactions contemplated by this Agreement (including any financial information memoranda, prospectuses, rating agency presentations and similar documents required in connection with the Financing (collectively, “Marketing Material”operational data) and due diligence sessions related thereto, (C) delivering and consenting to delivering, or procuring the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization delivery of, such information, certificates, comfort letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial letters and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of necessary or desirable by any customary negative assurance opinions and customary comfort letters relating party to the Financing;any such Pre-Merger Financing Transaction.
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Notwithstanding anything to the contrary in this Section 7.9(a) or Section 7.9(b) below5.1(e), (A) none of Allergan neither Raytheon nor any of its Subsidiaries UTC shall be required to take or permit the taking of disclose any action information pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x5.1(e) to the extent required by Section 7.9(b)that (A) in the reasonable good faith judgment of such party, applicable Allergan Supplemental Indenturesany Applicable Law requires such party or its subsidiaries to restrict or prohibit access to any such information, (yB) customary officers’ certificates relating in the reasonable good faith judgment of such party, the information is subject to the execution thereof that would not conflict with applicable Law and would be accurate in light confidentiality obligations to a third party or (C) disclosure of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that or document would not result in the loss of any such attorney-client privilege, attorney work product or other relevant legal privilege; provided that, with respect to clauses (A) through (C) of this Section 5.1(e), (iv) deliver Raytheon or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its SubsidiariesUTC, as applicable, shall use its commercially reasonable efforts to deliver a customary opinion (1) obtain the required consent of counsel any third party necessary to provide such disclosure, (2) develop an alternative to providing such information so as to address such matters that is reasonably acceptable to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), party and (C3) neither Allergan nor any utilize the procedures of its Subsidiaries shall be required to take a joint defense agreement or implement such other techniques if the parties determine that doing so would reasonably permit the taking disclosure of any action that would (i) interfere unreasonably with the business such information without violating Applicable Law or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained in connection with syndication of the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover Rulesjeopardizing such privilege.
Appears in 2 contracts
Samples: Merger Agreement (United Technologies Corp /De/), Merger Agreement (Raytheon Co/)
Financing Cooperation. (a) Until Prior to the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9Closing, Allergan Seller shall, shall use cause its reasonable best effortsSubsidiaries, and shall cause each of its Subsidiaries to use its reasonable best efforts, and shall use its reasonable best efforts to cause its and their respective directors, officers, employees and employees, advisors and other Representativesrepresentatives to, including legal and accounting advisorsat the sole expense of Buyer, to use their reasonable best effortsefforts to cooperate with Buyer to the extent necessary and customary for Debt Financing contemplated by the Debt Commitment Letter, equity financing contemplated by the Equity Commitment Letter or any offering of the Buyer’s common stock prior to provide the Closing which proceeds are to AbbVie and its Subsidiaries such assistance be used as may be a portion of the Purchase Price as a reduction to the aggregate proceeds of the Financing (the “Pre-Closing Equity Offering”) as reasonably requested by AbbVie in writing that is customary Buyer in connection with the arranging, obtaining and syndication arrangement of the Financing (including for purposes of this Section 5.15, any Alternative Financing) or the Pre-Closing Equity Offering and the termination and payment in full of the existing Indebtedness of the Companies and their respective Subsidiaries, including using reasonable best efforts with respect to:to (provided that the delivery of the items referred to in clauses (vi)(x)(A), (vi)(x)(B) and (vi)(y) below shall not be subject to such reasonable best efforts qualifiers):
(i) participating assist in the preparation for and assisting upon reasonable advance notice participate (but only together with the due diligence, syndication or executive officers of Buyer and other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of senior management and representatives of Allergan with appropriate seniority Buyer) at reasonable times in a reasonable number of meetings, drafting sessions, presentations, road shows, drafting sessions, and rating agency and due diligence sessions (including accounting due diligence sessions), including making available management and sessions with prospective lendersthe members of the finance department of Seller and the Group Companies to participate in such meetings, investors sessions, presentations and rating agencies, at times road shows;
(A) provide reasonable assistance to Buyer and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s its Financing Sources in the preparation of (x) customary materials for registration statements, offering documents, private placement memoranda, road show presentations, bank information memoranda, prospectuses, rating agency presentations prospectuses and similar documents required reasonably necessary for any portion of the Financing or the Pre-Closing Equity Offering (including, where appropriate, a “public” version and a “private” version), including reviewing and commenting on Buyer’s draft of a business description and “Management’s Discussion and Analysis” of the Group Companies’ financial statements to be included in connection offering documents contemplated by the Financing or the Pre-Closing Equity Offering and (y) customary materials for rating agency presentations, in each case including using reasonable best efforts to make available management and the members of the finance department of Seller and the Group Companies to provide reasonable assistance to Buyer in Buyer’s preparation of any of the foregoing documents, memoranda, prospectuses or similar documents and/or materials relating to the Group Companies (it being understood that Seller will have no obligation to provide pro forma financial information (except to assist in the preparation thereof to the extent provided in clause (ii) of the definition of “Required Information”) or post-Closing financial information), (B) furnish Buyer and the Financing Sources with the Financing (collectivelyRequired Information as promptly as reasonably practicable, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to inform Buyer if Seller shall have Knowledge of any facts that would likely require the inclusion or incorporation in restatement of any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into in the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material Required Information for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual such financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable typecomply with GAAP;
(iii) providing to AbbVie’s legal counsel cooperate with the marketing efforts of Buyer and its independent auditors such Financing Sources for any portion of the Financing or the Pre-Closing Equity Offering (including by providing in connection therewith one or more customary documents and other authorization letters authorizing the distribution of the offering materials, customary representation letters with respect to the presence or absence of material non-public information relating to Allergan and its Subsidiaries and/or customary representation letters as may be reasonably requested in connection with their delivery by the independent accountants of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors Group Companies to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of consents) as reasonably requested by Buyer or the Financing Sources;
(viiiv) causing assist Buyer in obtaining waivers, consents, estoppels and approvals from other parties to material leases, Encumbrances and agreements relating to the Group Companies, and appraisals, surveys and title insurance, and releases and other evidence of satisfaction of Encumbrances (other than Permitted Encumbrances), in each case as reasonably requested by Buyer or the Financing to benefit from the existing lender relationships of Allergan and its SubsidiariesSources;
(viiiv) providing documents reasonably cause the independent auditors of the Companies and their respective Subsidiaries to provide, consistent with customary practice, (A) reasonable assistance and cooperation to Buyer, including attending accounting due diligence sessions and (B) accountant’s comfort letters and consents, including as to customary negative assurances, requested by AbbVie the Buyer or the Financing Sources relating and customary for financings similar to the Financing or the Pre-Closing Equity Offering;
(vi) (x) with respect to the Indebtedness of the Group Companies set forth on Schedule 3.10(a)(iii), (A) obtain the delivery of customary payoff letters, releases and/or terminations executed by the applicable creditor or each agent therefor and (B) cause the delivery of notices of prepayment within the time periods required by the relevant agreements governing such Indebtedness (which notices may be conditioned on the occurrence of the Closing on the Closing Date); and (y) obtain all other documents and instruments and take all such other actions as may be necessary to evidence the termination, discharge, release and/or repayment or refinancing in full of all Indebtedness of the Group Companies set forth on Schedule 3.10(a)(iii) and the release of all guarantees and Encumbrances securing the foregoing, including the delivery of lien and guarantee terminations and releases, UCC-3 termination statements and mortgage releases, in each case in form and substance reasonably acceptable to the Buyer and the Financing Sources; provided that, in the case of each of clauses (x) and (y) above, (I) Buyer shall provide all funds required to effect the repayment of all such Indebtedness and the cash collateralization of all letters of credit, and Seller shall have no obligation to effect any indebtedness such alternative arrangement for borrowed money letters of Allergan credit, and (II) in no event shall this Section 5.15(a)(vi) require Seller or any of its Subsidiaries to be repaid cause any termination or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (prior to the extent requiredoccurrence of the Closing;
(vii) evidence that notice assist with the preparation and execution of any such repayment has been timely delivered pledge and security documents, other definitive financing documents (including any schedules or exhibits thereto) or other certificates or documents customary for the Financing or the Pre-Closing Equity Offering or as may be reasonably requested by Buyer or the Financing Sources (it being understood that none Seller or any of its Affiliates or any of their representatives will be required to provide any certificate with respect to solvency matters) and otherwise facilitate the holders pledging of such indebtednesscollateral, in each case as may be reasonably requested by Buyer and in accordance form and substance reasonably acceptable to Buyer and the Financing Sources;
(viii) cooperate with the terms due diligence investigation of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on Financing Sources, including, subject to Section 5.3, providing reasonable access, during normal working hours and upon reasonable advance notice, as necessary for completion of field exams and audits in connection with the Completion)borrowing base for the asset-based loan component of the Financing, asset appraisals and engineering/property condition reports and the evaluation of the current assets, cash management and accounting systems, policies and procedures of the Group Companies relating thereto for the purpose of establishing collateral arrangements;
(ix) procuring reasonably assist Buyer to satisfy on a timely basis all conditions to funding that are applicable solely to the Group Companies with respect to the Financing under the Commitment Letters;
(x) take all corporate or similar actions reasonably requested by Buyer that are necessary or customary to permit the consummation of the Financing (it being understood that none of Group Companies will be required to take any corporate or similar action that is effective prior to the occurrence of the Effective Time or that would be effective if the Effective Time does not occur); and
(xi) provide at least five (5) Business Days prior to the Closing Date all customary documentation and other information as is required by applicable “know your customer” and anti-money laundering rules and regulations including the USA PATRIOT Act and FATCA to the extent requested at least ten (10) Business Days prior to the Closing Date.
(b) Seller hereby consents to the reasonable use of all of Allergan’s the Group Companies’ corporate logos in connection with the initial syndication or marketing of the Financing (provided or the Pre-Closing Equity Offering; provided, that such logos are used solely in a manner that is not intended to and is not or reasonably likely to harm or disparage Allergan or its Subsidiaries the Group Companies or the reputation or goodwill of Allergan the Group Companies or any of its Subsidiaries); andtheir marks.
(xc) providing at least three (3) Business Days in advance of Notwithstanding the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Notwithstanding foregoing or anything else contained herein to the contrary in this Section 7.9(a) or Section 7.9(b) belowcontrary, (Ai) none of Allergan nor Seller or any of its Subsidiaries shall be required to take incur any expenses or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses payment that are to be is not promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, Buyer in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the CompletionClosing or otherwise incur any liability in connection with the Financing and/or redemption and/or discharge of the Indebtedness of the Group Companies prior to the Closing, (viii) commence other than customary authorization and representation letters (authorizing the distribution of the offering materials and with respect to the presence or absence of material non-public information and as may be requested by the independent accountants of the Group Companies to provide their comfort letters and consents) and any Allergan Note Offers customary documents required to be executed or delivered in connection with the closing of a debt offering into escrow, no obligation of the Group Companies under any certificate, document or instrument executed or delivered in connection with the foregoing shall be effective until the Closing Date and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, Group Companies or any of their respective directors or officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to execute, deliver enter into or take any action under any such certificate, document or instrument that is not contingent upon the Closing or adopt any resolutions or consents approving the agreements, documents or and instruments pursuant to which the Financing is obtained obtained, or be required to deliver, or cause to be delivered, any Allergan Note Offers legal opinion by its counsel, and Consent Solicitations is consummated (except iii) nothing in this Section 5.15 shall require cooperation to the execution extent that it would unreasonably interfere with the business or the ongoing operations of Seller and delivery its Subsidiaries (it being agreed that the matters described in clauses (i) through (ix) and (xi) of any applicable Allergan Supplemental IndenturesSection 5.15(a) do not so unreasonably interfere), and (Civ) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty nothing in this Agreement Section 5.15 shall require cooperation to the extent that it would reasonably be breached by Allergan expected to conflict with or violate any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries Group Company’s organizational documents or any applicable Law. AbbVie Buyer shall, promptly upon request, reimburse Seller for all reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred by Seller and the Group Companies in connection with fulfilling its obligations pursuant to this Section 5.15, which reimbursement obligation shall cause all nonsurvive termination of this Agreement. Buyer shall indemnify, defend and hold harmless Seller and its Affiliates, and their respective pre-public Closing directors, officers, employees, agents, representatives and professional advisors, from and against any liability, loss, damages, claims, costs, expenses, awards, judgments and penalties of any type suffered or incurred by them in connection with the arrangement of the Financing, any information provided in connection therewith (other confidential than arising from historical information relating to the Group Companies provided by Seller in writing specifically for use in the Financing offering documents) and any misuse of the logos or marks of Group Companies except in the event such liabilities or losses arose out of or result from the bad faith, gross negligence, material breach or willful misconduct of Seller, any of its Subsidiaries or any of their respective representatives, which indemnification obligation shall survive termination of this Agreement.
(d) The Required Information (taken as a whole), when delivered by Seller to Buyer, will not contain any untrue statement of a material fact regarding the Group Companies or omit to state a material fact regarding the Group Companies necessary in order to make such information contained in such Required Information, in light of the circumstances in which such information is disclosed, not misleading. If Seller becomes aware that the Required Information, when taken as a whole, contains any untrue statement of a material fact regarding the Group Companies or omits to state a material fact regarding the Group Companies necessary in order to make such information contained in such Required Information, in light of the circumstances in which such information is disclosed, not misleading, Seller will use reasonable best efforts to update or supplement such information such that, after giving effect to such updates and supplements, such information, when taken as a whole along with any other written information or data provided by or on behalf of Allergan Seller, does not contain as of the time provided any untrue statement of material fact regarding the Group Companies or omit to state any material fact regarding the Group Companies necessary in order to make such information contained in such Required Information, in light of the circumstances in which such information is disclosed, not misleading.
(e) For the avoidance of doubt, Buyer may, to most effectively access the financing markets, require the reasonable cooperation of Seller and its Subsidiaries or Representatives pursuant to under, and subject to, this Section 7.9 5.15 at any time, and from time to be kept confidential in accordance with time and on multiple occasions, between the Confidentiality Agreement; provided, that Allergan date hereof and the Closing.
(f) Buyer acknowledges and agrees that the confidentiality undertakings that will be obtained in connection with syndication obtaining of the Financing will be in Financing, or any Alternative Financing, is not a form customary for use in condition to the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover RulesClosing.
Appears in 2 contracts
Samples: Stock Purchase Agreement, Stock Purchase Agreement (Beacon Roofing Supply Inc)
Financing Cooperation. (a) Until the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan The Company shall use its reasonable best effortsefforts to, and shall cause each of its Subsidiaries to use its reasonable best effortsefforts to, and shall use its reasonable best efforts to cause its and their respective officersRepresentatives to, employees and advisors and other Representatives, including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie and its Subsidiaries such assistance as may be reasonably requested by AbbVie in writing that is customary in connection with the arranging, obtaining and syndication of the Financing, including using reasonable best efforts with respect to:
(i) participating in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries cooperation as is reasonably requested by AbbVie or its Parent, is necessary in connection with the Debt/Preferred Equity Financing Sources and customarily required provided for borrowers or issuers in Marketing Material for Financings financings of the type contemplated by the Debt Commitment Letter (or permanent take-out financing incurred in lieu of the bridge facility contemplated under the Debt Commitment Letter) or the Preferred Equity Commitment Letter, as applicable type(it being understood and agreed that such information shall not include any information customarily delivered by an investment bank, agent bank or lender in the preparation of such bank information memoranda or similar documents), including all Historical Financial Statements and other customary information with respect reasonable best efforts in (i) furnishing to Allergan and its Subsidiaries Parent (A) of the type that would be required by Regulation S-X Required Information and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma such other pertinent and customary financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan regarding the Company and its Subsidiaries as may be reasonably requested by Parent; provided that, in the case of this clause (B), the Company shall not be obligated to furnish any Excluded Information; (ii) prior to and during the Marketing Period, upon reasonable prior written notice and at reasonable times, cause members of management (with appropriate seniority) to participate in a reasonable number of meetings (in each case, which may be held via conference call), drafting sessions, rating agency presentations and due diligence presentations (including accounting due diligence sessions), presentations, “road shows” and sessions with prospective financing sources and investors, in each case at times and locations to be mutually agreed; (iii) in advance of and prior to the closing of the Marketing Period, providing reasonable assistance to Parent and its Debt/Preferred Equity Financing Sources in the preparation of customary bank information memoranda, lender or investor presentations, rating agency presentations, offering memoranda or private placement memoranda and other customary marketing materials in connection with their delivery the Debt/Preferred Equity Financing (collectively, the “Marketing Material”) including delivering upon request of any customary negative assurance opinions and customary comfort letters relating Parent prior to the Financing;
commencement of the marketing of the Debt/Preferred Equity Financing (A) customary executed authorization letter to accompany customary Marketing Materials regarding the material accuracy of information contained in such Marketing Materials with respect to the Company and its Subsidiaries and, with respect to any “public version” of such Marketing Materials, the lack of material non-public information with respect to the Company and its Subsidiaries therein and (B) customary executed management representation letters and CFO certificates with respect to the financial information included in the Marketing Materials for bond offerings; (iv) causing Allerganthe Company’s independent auditors to provide customary cooperation comfort letters (including “negative assurance” comfort) with respect to historical financial information of the Financing;
Company included in any offering memoranda with respect to any non-convertible high yield debt securities included in the Debt Financing issued on a “Rule 144A for life” basis; (v) assisting in the preparations for the pledging of collateral, including possessory collateral (it being understood that no such pledging of collateral will be effective until at or after the Closing), facilitating the obtaining of guarantees, and assistance in the consents preparation of Allergan’s independent auditors any definitive financing documents and other matters ancillary to use their audit reports on the audited Historical Financial Statements Debt Financing as may be reasonably requested by Parent, including by providing information for the completion of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed schedules or used in connection with the Financing;
certificates thereto; (vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
at least four (vii4) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating Business Days prior to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected therebyClosing Date, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms requested by Parent on behalf of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Debt/Preferred Equity Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie at least Sources no later than ten (10) Business Days in advance of prior to the Completion Date in connection with the Financing that relates to Closing Date, timely furnishing such documentation and other information required by Governmental Authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitationthe U.S.A. Patriot Act of 2001, including beneficial ownership certificates; (vii) providing reasonable assistance to facilitate at (but not prior to) the USA PATRIOT ACTClosing the release of liens on assets of the Company (other than Permitted Liens) that are collateral for the Debt Financing, (viii) assisting Parent in obtaining any corporate or facility ratings from any ratings agencies contemplated by the Debt/Preferred Equity Financing and (ix) executing and delivering prepayment notices within the time periods contemplated by the Credit Agreement. Notwithstanding anything The Company hereby consents to the contrary use of the logos of the Company and its Subsidiaries in this Section 7.9(aconnection with such Debt/Preferred Equity Financing; provided that such logos shall be used solely in a manner that is not intended or reasonably likely to harm, disparage or otherwise adversely affect the Company and/or its Subsidiaries or their reputation or goodwill.
(b) or Section 7.9(b) belowNotwithstanding the foregoing, (A) none of Allergan neither the Company nor any of its Subsidiaries Affiliates shall be required to take or permit the taking of any action pursuant to this Section 7.9(a6.05: (A) that would require the Company or Section 7.9(b) below any of its Affiliates or any other Persons who are directors or officers of such entities to (i) pay any commitment pass resolutions or other fee consents to approve or incur any liability (other than third-party costs and expenses authorize the execution of the Debt/Preferred Equity Financing that are not conditioned upon the effectiveness of the Closing; provided that any director or officer whose resignation becomes effective immediately after the Closing occurs shall not be required to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c))pass resolutions or consents, (iiB) that would require the Company or any of its Affiliates or any other Persons who are directors or officers of such entities to execute or deliver any definitive financing documents or any other agreement, certificate, document document, instrument or instrumentagreement, or agree to any change to or modification of any existing agreement, certificate, document opinion, document, instrument or instrumentagreement, in each case case, prior to the Closing (it being understood that would no obligations of the Company under any certificate, opinion, document, instrument or agreement delivered pursuant to this Section 6.05 shall be required to be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) aboveClosing), (iiiC) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan the Company or any of its Affiliates or would cause any condition to the Closing to fail to be satisfied, (D) that would require the Company or any of its Subsidiaries to pay (unless waived by AbbViex) any commitment or other similar fee or (y) incur any other expense, liability or obligation in connection with the Debt/Preferred Equity Financing that, in the case of this clause (y), would not be subject to the Reimbursement Obligations of Parent, (iiiE) that could cause any director, officer or employee or shareholder stockholder of Allergan the Company or any of its Subsidiaries Affiliates to incur any personal liability or liability, (ivF) that could reasonably be expected to conflict with, result in a material any violation or breach of, or a default (with or without notice, lapse of time, or both) under, any material Contract of their respective organizational documents, or any Applicable Law or Material Contracts not entered into in contemplation of the obligations of the Company under this Section 6.05, (G) that provides access to which Allergan or discloses information that the Company or any of its Subsidiaries is a partyAffiliates determines could reasonably be expected to jeopardize any attorney-client privilege of, or conflict with any confidentiality obligations contained in any Material Contracts not entered into in contemplation of the obligations of the Company under this Section 6.05 binding on, the Organizational Documents Company or any of Allergan its Subsidiaries, (H) that would, in the opinion of the Company in good faith, unreasonably interfere with the ongoing operations of its or its Affiliates’ businesses or would require an action that is not within the control of the Company or its Affiliates using reasonable best efforts or (I) that would cause significant competitive harm to the Company or its Subsidiaries or any applicable Lawif the transactions contemplated by this Agreement are not consummated. AbbVie shall cause all All non-public or other confidential information provided by or on behalf of Allergan the Company or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to 6.05 shall be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that the Agreement or pursuant to confidentiality undertakings that will customary for the type of Debt/Preferred Equity Financing contemplated under the Debt Commitment Letter or Preferred Equity Commitment Letter. Nothing contained in this Section 6.05 or otherwise shall require the Company or any of its Affiliates to encumber any of its assets or be obtained an issuer or other obligor with respect to the Debt/Preferred Equity Financing or require the Company or any of its Affiliates to be an issuer or other obligor with respect to the Debt/Preferred Equity Financing, in each case, prior to the Closing. Parent shall, promptly upon request by the Company, reimburse the Company and its Affiliates for all fees, costs, expenses and liabilities incurred by any of them or their respective Representatives in connection with syndication fulfilling their respective obligations pursuant to this Section 6.05 (including reasonable attorneys’ fees) but excluding the fees, costs or expenses for financial statements included in the Required Information or any other materials that, in each case, would be prepared by the Company or its Affiliates in the ordinary course of business whether or not request would be made by Parent under this Section 6.05. Notwithstanding anything herein to the contrary, the parties hereto acknowledge and agree that the provisions contained in this Section 6.05 represent the sole obligations of the Financing will be Company and any of its Representatives with respect to cooperation in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance connection with the requirements arrangement of any financing (including the Financing) to be obtained by Parent or any of its Affiliates with respect to the transactions contemplated by this Agreement, and no other provision of this Agreement (including the Exhibits and Schedules hereto) shall be deemed to expand or modify such obligations. Parent shall indemnify, defend and hold harmless the Company, its Affiliates and their respective Representatives from and against any and all losses, damages, claims, costs or expenses actually suffered or incurred by them in connection with the provision of assistance pursuant to this Section 6.05 in connection with the Financing or any other financing by Parent or any of its Affiliates (including the arrangement thereof) and any information used in connection therewith except any such losses, damages, claims costs or expenses arising out of any willful misconduct, gross negligence, or bad faith, fraud or intentional misrepresentation by any of the Panel Company or its Subsidiaries and its or their respective Representatives. The reimbursement and indemnification obligations of Parent set forth in this Section 6.05(b) are referred to, collectively, as the Takeover Rules“Reimbursement Obligations.”
Appears in 2 contracts
Samples: Merger Agreement (McAfee Corp.), Merger Agreement (McAfee Corp.)
Financing Cooperation. (a) Until In the earlier period between the date hereof and the Closing Date, upon request of the Completion and Purchaser, the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan shall use its reasonable best effortsSeller shall, and shall cause each of its Subsidiaries to use its reasonable best effortssubsidiaries to, and shall use its reasonable best efforts to cause its affiliates and their respective officersrepresentatives to, employees reasonably cooperate with Purchaser in connection with the Financing and advisors and any other Representativesdebt or equity financing that the Purchaser may elect to obtain in full or partial substitution for the Financing or in addition to the Financing (collectively, “Other Financing”), including legal (i) preparation of all financial statements relating to the Companies and accounting advisorsthe Business that would be required to be included by the Purchaser in any Registration Statement under the Securities Act of 1933, as amended (the “Securities Act”) or that would be required to be included by the Purchaser in any Current Report on Form 8-K in connection with the consummation of the transactions contemplated hereby; (ii) the provision of financial information and projections relating to the Companies and the Business reasonably requested by the Purchaser to allow Purchaser to prepare any required pro forma financial information or to prepare customary bank information memoranda, lender presentations, offering memoranda, private placement memoranda (including under Rule 144A under the Securities Act, registration statements and prospectuses under the Securities Act), or otherwise satisfy conditions to obtaining the Financing or Other Financing; (iii) making senior management of the Business available for direct contact (including, upon reasonable notice, the appearance at one or more meetings in the United States) with Persons contemplating providing the Financing or Other Financing; (iv) causing its independent accountants to provide reasonable assistance and cooperation to Purchaser, including providing consent to Purchaser to use their audit reports relating to the Companies and the Business, reasonable best effortsassistance in facilitating the provision of customary “comfort” (including “negative assurance” comfort) by such independent accountants and causing appropriate personnel to be available to discuss such reports and other information, to provide to AbbVie in each case on customary terms and its Subsidiaries such assistance consistent with their customary practice; (v) executing and delivering legal opinions of the Seller’s counsel or the counsel of any of the Companies regarding customary corporate matters or documents as may be reasonably requested by AbbVie in writing that is customary in connection with the arranging, obtaining Purchaser and syndication of the Financing, including using reasonable best efforts with respect to:
(i) participating in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection with the Financing (collectively, “Marketing Material”) or Other Financing; and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters furnishing the Purchaser and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the any Debt Financing Sources relating promptly, and in any event at least twenty (20) days prior to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected therebyClosing Date, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing required by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection Governmental Authority with respect to the Financing that relates to or any Other Financing under applicable “know your customer” and anti-money laundering rules and regulations, including without limitationthe PATRIOT Act. The Purchaser shall promptly, the USA PATRIOT ACT. Notwithstanding anything to the contrary in this Section 7.9(a) or Section 7.9(b) below, (A) none of Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c))the Seller, (ii) execute reimburse the Seller for all documented out-of-pocket expenses incurred by the Seller, its affiliates or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, representatives in connection with such cooperation. The request of the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, Purchaser may not unduly interfere with the management of the Seller and/or the Business and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan the preparation for the Closing. The Seller or its Subsidiaries, as applicable, to deliver a customary opinion of counsel the Companies do not assume any responsibility and liability with regard to the trustee Financing. The Financing is the sole responsibility of the Purchaser. The Seller’s and the Companies’ obligations, under this article 8.19, are limited solely to the applicable Indenture that provision of certain information and data (which is available in IFRS). They are not responsible or liable for the Allergan Supplemental Indenture amends if preparation of financial statements and reports and for the compliance of such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict financial statements or reports with applicable Law laws, regulations and would be accurate in light accounting standards. The Purchaser shall fully indemnify and hold harmless the Seller for all claims of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained third parties in connection with syndication of the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance Sellers activities under this art. 8.19 with the requirements exception of the Panel willful misconduct and the Takeover Rulesfraud.
Appears in 1 contract
Financing Cooperation. (a) Until On and prior to the earlier of Closing, the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan shall use its reasonable best effortsCompany shall, and shall cause each of its Subsidiaries to use its reasonable best effortsto, and shall use its commercially reasonable best efforts to cause its and their respective directors, officers, employees employees, agents and advisors and other Representativesto, including legal and accounting advisors, use commercially reasonable efforts to use their reasonable best efforts, to provide to AbbVie and its Subsidiaries such assistance cooperate with Parent as may be reasonably requested by AbbVie in writing that is customary necessary in connection with the arranging, obtaining arrangement of Debt Financing as may be customary and syndication of the Financingreasonably requested by Parent in writing, including using commercially reasonable best efforts with respect to, upon such request of Parent:
(i) participating in and assisting with the due diligence, syndication make appropriate officers or other marketing members of the Financing, including using reasonable best efforts with respect to management team (A) the participation by members of management of Allergan with appropriate seniority and expertise) available for participation at reasonable times in a reasonable number of meetings, lender presentations, road showsconference calls, drafting sessions, due diligence sessions and sessions meetings with prospective lenders, investors lenders and rating ratings agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie (A) furnish to Parent the Required Information, (B) provide reasonable assistance in the preparation of any reasonable and its Financing Sources with historical financial and other customary bank information memoranda (collectively, the “Financing Information”) including using commercially reasonable efforts to obtain customary authorization letters with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements specific to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan Company or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of reasonably included in any such repayment has been timely delivered to bank information memoranda from a senior officer of the holders of such indebtednessCompany) or private placement memoranda, rating agency presentations, marketing and/or syndication materials and cooperate reasonably with the Debt Financing Sources’ due diligence, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents respect to the reasonable use Company and its Subsidiaries and to the extent customary and reasonable, and (C) assist Parent in the preparation by Parent of all of Allergan’s logos customary pro forma financial statements and projections necessary in connection with the Debt Financing, it being understood that Parent shall be solely responsible for any pro forma cost savings, synergies, capitalization, ownership or other post-Closing pro forma adjustments;
(iii) assist in the preparation and negotiation and execution and delivery as of the Closing of any definitive financing documents (including any schedules and exhibits thereto) as may be reasonably requested by Parent including, without limitation, customary certificates;
(iv) facilitate the pledging of, and granting of security interests in, the collateral in connection with the Debt Financing, including using commercially reasonable efforts to execute and deliver as of Closing any customary pledge and security documents or other definitive financing documents, in each case as may be reasonably requested by Parent;
(v) cause the taking of corporate and other actions by the Company and its Subsidiaries reasonably necessary to permit the consummation of the Debt Financing on the Closing Date;
(vi) provide at least three Business Days prior to the Closing Date (provided that Parent has made such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing request at least three (3nine days prior to the Closing Date) Business Days in advance of the Completion Date such all material documentation and other information about Allergan and its Subsidiaries the Company as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates Parent to satisfy applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Notwithstanding anything to Act;
(vii) request from the contrary Company’s existing lenders such customary documents in connection with refinancings of the Company’s existing debt as reasonably requested by Parent in connection with the Debt Financing and collateral arrangements, including customary payoff letters and related lien releases; and
(viii) comply with any obligations under the Convertible Debenture Indenture that arise as a result of the execution, delivery or performance by the Company of this Agreement and the consummation of the transactions contemplated hereby, including the delivery of any notices and certificates required in connection with the transactions contemplated hereby.
(b) Section 7.9(a5.16(a) notwithstanding:
(i) neither the Company or Section 7.9(b) below, (A) none of Allergan its Subsidiaries nor any Persons who are directors, officers or employees of the Company or its Subsidiaries shall be required to take (A) pass resolutions or permit consents (except those which are subject to the taking occurrence of the Closing passed by directors or officers continuing in their positions following the Closing) or (B) execute any action document or Contract or incur any liability that is effective prior to the occurrence of the Closing, in each case in connection the Debt Financing or the cooperation contemplated by this Section 5.16 (other than, in the case of this clause (b), (1) any customary authorization letter described in the parenthetical in Section 5.16(a)(ii)(B) and (2) any notices required to be delivered pursuant to Section 5.16(a)(viii) prior to the Closing Date);
(ii) no obligation of the Company or any of its Subsidiaries or any of their respective Representatives to a third party undertaken pursuant to the Debt Financing or the cooperation contemplated by this Section 7.9(a5.16 (other than in connection with any customary authorization letter described in Section 5.16(a)(ii) above) shall be effective until the Effective Time;
(iii) none of the Company or Section 7.9(bits Subsidiaries or any of their respective Representatives shall be required (A) below to (i) pay any commitment or other similar fee or (B) incur any liability (other than third-party costs and expenses cost or expense that are to be is not promptly fully reimbursed by AbbVie upon request Parent in connection with the Debt Financing or the cooperation contemplated by Allergan pursuant to this Section 7.9(c)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective 5.16 prior to the Completion Date Closing;
(iv) none of the Company or would its Subsidiaries or any of their respective Representatives shall be effective if required to disclose or provide any information in connection with the Completion does Debt Financing, the disclosure of which, in the reasonable judgment of the Company, is restricted by Contract or applicable Law, is subject to attorney-client privilege or could result in the disclosure of any trade secrets or the violation of any confidentiality obligation;
(v) none of the Company or its Subsidiaries or any of their respective Representatives shall be required to deliver any financial information with respect to a fiscal period that has not occur yet ended;
(except vi) none of the Company or its Subsidiaries or any of their respective Representatives shall be required to prepare any (xA) pro forma financial information or (B) projections (provided, that, for the avoidance of doubt, the Company shall assist Parent in Parent’s preparation of pro forma financial information or projections in accordance with Section 5.16(a)(ii)(C)); and
(vii) none of the Company or its Subsidiaries or any of their respective Representatives will be required to provide, or cause to be provided, any legal opinions in connection with the Debt Financing or the cooperation contemplated by this Section 5.16; provided, that the limitation in this clause (vii) shall not extend to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officersprovision of lawyers’ certificates relating responses provided to the execution thereof that would not conflict auditors in response to auditors’ requests for information regarding contingent liabilities in connection with applicable Law and would be accurate in light such auditors’ review or audit of the facts and circumstances at Company’s financial statements.
(c) In addition, nothing contained in this Section 5.16 or otherwise shall require the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan Company or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicableprior to the Closing, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to Debt Financing. Parent shall, promptly upon request by the CompletionCompany, (vi) commence any Allergan Note Offers reimburse the Company for all reasonable and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of documented out-of-pocket costs and expenses incurred by the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan Company or its Subsidiaries or their respective Representatives in connection with the Debt Financing or the cooperation contemplated by this Section 5.16 and shall indemnify and hold harmless the Company and its Subsidiaries and their respective Representatives from and against any applicable Lawand all losses suffered or incurred by them in connection with the Debt Financing, any action taken by them pursuant to this Section 5.16, and any information utilized in connection therewith (other than information including in any marketing materials concerning the Company or its Subsidiaries to the extent provided in writing thereby for inclusion in such materials). AbbVie The obligations of Parent pursuant to the immediately foregoing sentence shall cause all non-public survive termination of this Agreement.
(d) 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, or other confidential information provided by reasonably likely, to harm, disparage or on behalf of Allergan otherwise adversely affect the Company or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained in connection with syndication reputation or goodwill of the Financing will be in a form customary for use in the syndication any of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover Rulesthem.
Appears in 1 contract
Samples: Merger Agreement (Convergys Corp)
Financing Cooperation. (a) Until the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan The Company shall use its commercially reasonable best effortsefforts to provide, and shall cause each of its Subsidiaries to provide and use its commercially reasonable best efforts, and shall use its reasonable best efforts to cause its and their respective officers, employees employees, and advisors and other Representatives, including legal and accounting advisors, Representatives to use their commercially reasonable best effortsefforts to provide, at Purchaser’s sole cost and expense, to provide to AbbVie Parent and its Subsidiaries such assistance as may be Purchaser all cooperation reasonably requested by AbbVie in writing Parent and Purchaser and/or the Financing Sources that is necessary, proper or advisable in connection with the Financing or the High-Yield Financing to the extent customary in connection with the arranging, obtaining and syndication arrangement of financing similar to the Financing, including using reasonable best efforts with respect toincluding:
(i) participating in and assisting with the due diligence, syndication or other marketing senior management team of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority Company participating in a reasonable number of meetingsmeetings and presentations on reasonable advance notice and at reasonable locations, presentationsand reasonably cooperating with the marketing efforts of Parent, Purchaser and the Financing Sources, including participation in a reasonable number of road shows, drafting sessions, due diligence sessions shows and sessions meetings with prospective lenderslenders and investors, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, in each case in connection with the Financing;
(Bii) assisting with AbbVie’s the preparation of customary materials for registration statementsrating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectusesbusiness projections, rating agency lender and investor presentations and similar documents required in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting including information relating to the inclusion or incorporation business, financial condition, results of operations, legal affairs and regulatory regime applicable to the Company, as well as information relating to risks associated with operation of its business;
(iii) furnishing Parent, Purchaser (including for filing with the Securities and Exchange Commission, if and to the extent required, and to be included in any SEC filing offering memorandum related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”Financing) and (D) delivering customary authorization lettersthe Financing Sources with financial and other pertinent information regarding the Company and its Subsidiaries as may be reasonably requested by Parent or Purchaser to the extent customarily included in a bank information memorandum, management representation letters, confirmations, and undertakings private placement memorandum or lender presentations in connection with the Marketing Material (in each case, as applicable, subject arrangement of financing similar to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable typeFinancing, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (1) (A) the Financial Statements and, (B) unaudited consolidated balance sheets and related statements of operations and comprehensive income, stockholders’ equity and cash flows of the Company for each subsequent interim quarterly period (other than the final quarter of any fiscal year) ended at least forty-five (45) days prior to the Closing Date (and the corresponding period for the prior fiscal year), and all other financial statements, pro forma financial information, financial data, audit reports and other financial information of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if of 1933 (as amended, the Financing were incurred by AbbVie "Securities Act") for registered offerings of debt securities and registered on Form S-3 of the type and form customarily included in offering documents used in private placements pursuant to Rule 144A under the Securities ActAct (including, including audit reports of annual financial statements to the extent so applicable with respect to such financial statements, the report of the Company’s auditors thereon and related management’s discussion and analysis of financial condition and results of operations) to consummate the offering(s) of debt securities and/or syndication of credit facilities, as applicable, contemplated by the Financing Commitments (provided, that in no circumstance shall the Company be required (which audit reports shall not be subject to provide subsidiary financial statements or any “going concern” qualifications)other information of the type required by Rule 3-05, Rule 3-09, Rule 3-10 or Rule 3-16 of Regulation S-X, executive compensation disclosure required by Regulation S-K Item 402(b) or other information customarily excluded from a Rule 144A offering memorandum) or (B2) reasonably as otherwise necessary in order to permit AbbVie to prepare pro forma financial statements receive customary for Financings "comfort" (including "negative assurance" comfort) from independent accountants in connection with the offering(s) of debt securities contemplated by the applicable typeFinancing Commitments;
(iiiiv) providing using commercially reasonable efforts to AbbVie’s legal counsel obtain accountants’ comfort letters and consents to the use of accountants’ audit reports relating to the Company and its independent auditors such customary documents Subsidiaries;
(v) reasonably facilitating the pledge of collateral and other customary information relating matters ancillary to Allergan and its Subsidiaries the Financing as may be reasonably requested by Parent and Purchaser in connection with their delivery the Financing, including causing each of any customary negative assurance opinions the Company’s Subsidiaries that are licensed to operate in New York to approve the subsidiary guarantees and customary comfort letters relating other agreements ancillary to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan Financing as may be reasonably requested by Parent and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used Purchaser in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ providing customary comfort authorization letters and assistance with the accounting due diligence activities of to the Financing SourcesSources authorizing the distribution of information to prospective lenders (subject to reasonable confidentiality provisions) and, with respect to any public-side version of such information, confirming that such version does not contain information that is not material with respect to the Company or its securities for purposes of United States federal and state securities laws (the "Authorization Letters");
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, requested in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing writing at least three (3) Business Days in advance of prior to the Completion Date such documentation Closing Date, furnishing to Parent and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with Purchaser, for distribution to the Financing that relates to Sources, information reasonably required by any Financing Source for compliance with applicable “"know your customer” " and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Notwithstanding anything Act of 2001 and the "Beneficial Ownership Regulation";
(viii) cooperating reasonably with the due diligence of the Financing Sources or any underwriters of any other financing of Parent or Purchaser in connection with the Financing, to the contrary extent customary and reasonable and to the extent not unreasonably interfering with the ongoing operations of the Company, including providing information relating to and participating in due diligence sessions covering, the business, financial condition, results of operations, legal affairs and regulatory regime applicable to the Company, as well as information relating to risks associated with operation of its business;
(ix) if Xxxxx, Xxxxxx Xxxxxxx LLP shall have withdrawn its audit opinion with respect to any of the Audited Financial Statements, furnishing Parent, the Purchaser and the Financing Sources with new unqualified audit opinions with respect to such financial statements by Xxxxx Xxxxxx Xxxxxxx LLP or another nationally recognized independent public accounting firm;
(x) if (A) (1) any of the financial statements in the Audited Financial Statements shall have been restated or (2) the Company, any governing body of the Company or Xxxxx Xxxxxx Xxxxxxx LLP shall have determined that a restatement of any such financial statements is required and (B) the Company or Xxxxx Xxxxxx Xxxxxxx LLP, as applicable, has not subsequently determined and confirmed in writing to the Purchaser that no restatement shall be required in accordance with GAAP, furnishing the Purchaser and the Financing Sources with such restated financial statements;
(xi) cooperating with Parent and the Purchaser to obtain ratings for the Financing; and
(xii) cooperating with Parent and the Purchaser to satisfy the conditions precedent to the Financing to the extent within the control of the Company.
(b) Notwithstanding the foregoing or anything set forth in this Section 7.9(a) or Section 7.9(b) belowAgreement, (A) none nothing shall require such cooperation as described in Section 7.05(a) to the extent it would, in the Company’s good faith judgment, unreasonably interfere with the business or operations of Allergan the Company or its Subsidiaries and (B) neither the Company nor any of its Subsidiaries shall be required to, or be required to commit to, (1) take or permit the taking of any action pursuant to this Section 7.9(a) that is not contingent upon the Closing or Section 7.9(b) below to (i) pay enter into or execute any commitment agreement or other fee or incur any liability document (other than third-party costs and expenses that are to the Authorization Letters) unless the effectiveness thereof shall be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c))conditioned upon, or become operative after, the occurrence of the Closing, (ii2) execute or deliver take any definitive financing documents or corporate action (including any other agreementboard approvals) in connection with the Financing, certificate, document or instrument, or agree to (3) take any change to or modification of any existing agreement, certificate, document or instrument, in each case action that would be effective prior to the Completion Date result in any officer, director or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light other Representative of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan Company or any of its Subsidiaries reasonably determines would jeopardize incurring any attorney-client privilege of Allergan or personal liability with respect to any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts matters relating to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege)Financing, (iv4) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures)legal opinions or any certificate as to solvency or any other certificate necessary for the Financing, and (C5) neither Allergan nor waive or amend any terms of its Subsidiaries shall be required to this Agreement or take or permit the taking of any action that would otherwise cause any breach of this Agreement, (i6) interfere unreasonably take any action that would conflict with any applicable Law, the business or operations organizational documents of Allergan the Company or its Subsidiaries, (ii) cause any representation Subsidiaries or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material the contravention of, or would reasonably be expected to result in the violation or breach of, or a default under, any material Contract contract to which Allergan the Company or any of its Subsidiaries is a partyparty or (7) prepare, assist in the Organizational Documents preparation of, or otherwise provide any information that is not in the possession or control of Allergan or its Subsidiaries the Company or any applicable Lawother information to the extent such disclosure (x) would result in a waiver of attorney client privilege, work product doctrine or similar privilege or (y) would violate any confidentiality obligation of the Company. AbbVie shall cause all All non-public or other confidential information provided by or on behalf of Allergan the Company or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to 7.05 shall be kept confidential in accordance with the Confidentiality Non-Disclosure Agreement, except that Parent and Purchaser shall be permitted to disclose such information in accordance with the Financing Commitments. None of the Company or any of its Subsidiaries shall be required to bear any cost or expense, pay any commitment or other similar fee or make any other payment or incur any other liability prior to the Closing.
(c) Parent shall reimburse the Company for its reasonable out-of-pocket fees and expenses incurred pursuant to this Section 7.05 and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all losses incurred or suffered by them in connection with any actions taken pursuant to this Section 7.05; provided, that Allergan acknowledges Parent shall not have any obligation to indemnify and agrees hold harmless any such party or Person to the extent that any such damages suffered or incurred arose from historical financial information provided by the confidentiality undertakings Company that will be obtained is determined to have contained a material misstatement or omission.
(d) The Company hereby consents to the use of its and its Subsidiaries’ logos in connection with syndication the Financing; provided, that such logos shall be used in a manner that is not intended to or reasonably likely to harm, disparage or otherwise adversely affect the Company or any of its Subsidiaries.
(e) Notwithstanding anything to the contrary, the condition set forth in Section 3.01(d), as it applies to the Company’s obligations under this Section 7.05, shall be deemed satisfied unless the Financing has not been obtained primarily as a result of the Financing will be Company’s willful and material breach of its obligations under this Section 7.05. As used in this Section 7.05(e), "willful and material breach" means a form customary for use deliberate act or failure to act, which act or failure to act constitutes in and of itself a material breach of this Agreement, regardless of whether breaching this Agreement was the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements conscious object of the Panel and the Takeover Rulesact or failure to act.
Appears in 1 contract
Financing Cooperation. (a) Until Prior to the earlier of Closing, the Completion Company shall (and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan shall cause its Subsidiaries to) use its reasonable best effortsefforts to provide, and shall cause each at the sole expense of its Subsidiaries to use its reasonable best effortsParent, and shall use its reasonable best efforts to cause its Representatives to provide, the following cooperation as reasonably requested by Parent that is necessary, proper or customary in connection with the arrangement and their respective officersconsummation of the Debt Financing (or (x) any permitted replacement, employees and advisors and other Representativesamended, modified or alternative financing, including legal any Replacement Commitment Facility, and accounting advisors(y) the Opco Debt Financing), to use their including reasonable best effortsefforts to do the following:
(i) furnish to Parent, the Lender Related Parties or any other debt financing sources, as promptly as practicable following Parent’s request, with such pertinent and customary reasonably available information necessary to provide to AbbVie and its Subsidiaries such assistance syndicate or complete the underwriting or private placement of the Debt Financing as may be reasonably requested by AbbVie in writing that Parent, the Lender Related Parties or any other debt financing sources regarding the business, operations, financial projections and prospects of the Company and the Company Subsidiaries as is customary for investment grade public companies in connection with the arranging, obtaining and syndication arrangement or marketing of financings such as the Debt Financing, including using reasonable best efforts with respect to:;
(iii) participating furnish to Parent the most recent financial statements contained in and assisting with the due diligenceFiled Company SEC Documents;
(iii) upon reasonable advance notice, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority participate in a reasonable number of meetingsmeetings (including one-on-one meetings with the parties acting as lead arrangers, bookrunners, underwriters or agents for, and prospective lenders and purchasers of, the Debt Financing and senior management and Representatives, with appropriate seniority and expertise, of the Company and the Company Subsidiaries), presentations, road shows, drafting due diligence sessions, due diligence drafting sessions and sessions with prospective lenders, investors and rating agencies, agencies in connection with the Debt Financing at times and at locations dates reasonably acceptable to Allergan the Company and upon reasonable notice, the Company Subsidiaries;
(Biv) assisting reasonably assist with AbbVie’s the preparation of customary materials for registration statements, offering documents, private placement memorandacustomary marketing materials (including assistance in creating usual and customary “public versions” of the foregoing), bank including confidential information memoranda, prospectuses, offering memoranda and materials for rating agency presentations, lender and investor presentations, bank syndication materials, roadshow presentations and similar documents required in connection with the Debt Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting by providing information about the Company Business reasonably available to the inclusion Company and the Company Subsidiaries and, in each case, executing customary authorization and management representation letters in connection therewith; provided that such letters and confirmations provide that (A) Company, and each of its respective Representatives and Affiliates shall not have any liability of any kind or incorporation nature resulting from the use of information contained in any SEC filing related marketing material and (B) the recipient of such letters of authorizations agrees that it shall be entitled to rely only on the representations and warranties contained in the definitive documentation with respect to the Financing Debt Financing;
(A) provide assistance with the preparation of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included definitive financing documentation, including any credit or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization lettersloan agreements, management representation letterspurchase agreements, confirmationsindentures, and undertakings other related definitive financing documents, certificates or documents (including, in connection with each case, any schedules and exhibits thereto), contemplated by the Marketing Material (Debt Financing, or any other agreements, documents or certificates that facilitate the creation, perfection or enforcement, in each case, as applicableof the Closing, subject of Liens securing such Debt Financing as may be requested (B) facilitate in the provision of guarantees and collateral of the Company and the Company’s Subsidiaries, in each case, related to customary confidentiality provisions the Debt Financing and disclaimers);
to be effective no earlier than the borrowing under the Debt Financing on the Closing Date, and (iiC) timely furnishing AbbVie obtain such consents, acknowledgements, authorizations, approvals and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is instruments reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings the Parent to permit the consummation of the applicable typeDebt Financing, including all Historical Financial Statements releases, terminations, waivers, consents, estoppels and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries approvals as may be reasonably requested required in connection therewith (including releases and terminations with their delivery of respect to any customary negative assurance opinions and customary comfort letters relating to the Financing;
applicable guarantees or applicable Liens (iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financingother than Permitted Liens));
(vi) obtaining Allergan’s independent auditors’ customary comfort letters cooperate with, and assistance with taking all actions reasonably requested by, Parent in order to facilitate the accounting due diligence activities termination and payoff of the Credit Facility and the release of Liens thereunder, to be effective no earlier than the borrowing under the Debt Financing Sourceson the Closing Date;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating provide, no later than three Business Days prior to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms anticipated closing of the definitive documents governing such indebtedness (provided that Debt Financing, after any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of request therefor from Parent, all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan the Company and its the Company Subsidiaries as is reasonably requested in writing required by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to applicable beneficial ownership, “know your customer” and anti-money laundering rules and regulations, regulations including without limitation, the USA PATRIOT ACT. Act to the extent reasonably requested at least 10 Business Days prior to the anticipated closing of the Debt Financing; and
(viii) to the extent applicable, (A) provide customary financial information as reasonably requested by Buyer to enable Buyer to prepare pro forma financial statements; (B) assist in the preparation of offering documents and memoranda and “road show” presentations, including by providing records, data or other information reasonably necessary to support any statistical information or claims relating to the Company and the Company Subsidiaries appearing in the aforementioned materials, and assisting Parent in the preparation of pro forma financial statements (it being understood and agreed that such assistance shall not require the Company or the Company Subsidiaries to provide any information regarding any post-closing or pro forma cost savings, synergies, capitalization (including quantum and pricing of any indebtedness incurred in connection with the contemplated transactions), ownership or other post-closing pro forma adjustments); and (C) cause the independent accountants of the Company to provide assistance to Buyer including providing comfort letters (including customary negative assurance comfort), participating in accounting due diligence sessions and assistance in connection with providing customary review of interim financial statements.
(b) Notwithstanding anything to the contrary in Section 6.16(a), no action contemplated in Section 6.16(a) shall be required if any such action shall (i) unreasonably disrupt or interfere with the business or ongoing operations of the Company or the Company Subsidiaries; (ii)(A) cause any representation or warranty or covenant contained in this Section 7.9(aAgreement to be breached or (B) cause the Company or Section 7.9(b) below, (A) none of Allergan nor any of its Subsidiaries shall be required to take jeopardize any attorney-client privilege or permit beach any Contract, applicable Law or Organizational Document; (iii) involve the taking of entry into any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents Financing Agreement or any other agreement, certificate, document binding commitment by the Company or instrument, any of its Subsidiaries that is not contingent upon the Closing Date occurring or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur Closing Date; (except (xiv) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) other than in connection with customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to described above, require the clause (i)(D) above), (iii) provide access to or disclose information that Allergan Company or any of its Subsidiaries reasonably determines or any of their Representatives to provide (or to have provided on its behalf) any certificates that would jeopardize be effective prior to the Closing Date or any attorney-client privilege of Allergan legal opinions; (v) require the Company or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause pay any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver out-of-pocket fees or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing expenses prior to the Completion, Closing that are not promptly reimbursed by Parent as set forth in Section 6.16(e); (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan the Company or any of its Subsidiaries to incur any personal liability or liability; (ivvii) result in a material violation or breach of, or a default under, any material Contract to which Allergan require the Company or any of its Subsidiaries to execute and deliver any pledge or security documents or certificates, documents or instruments relating to the provision of guarantees and collateral in connection with the Financing that is a partynot contingent upon the Closing Date occurring or that would be effective prior to the Closing Date; (viii) except as necessary to give effect to the items expressly contemplated in this Section 6.16(b) and without limiting clauses (iii) and (vii) above, require the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan Company or any of its Subsidiaries to execute and deliver any documentation (including corporate resolutions) related to the Financing; or (ix) cause any condition to the Closing set forth in Article VII to fail to be satisfied. The Company hereby consents to the use of the Company’s and the Company Subsidiaries’ logos solely to the extent necessary in connection with the Financing and solely in a manner that is accurate and not intended or likely to harm or disparage the reputation or goodwill of the relevant party, or any of their respective Intellectual Property rights and will comply with the Company’s usage requirements and guidelines to the extent made available to Parent prior to such use.
(c) Parent acknowledges and agrees that (i) the Company and the Company Subsidiaries and their respective Representatives shall not be required to (A) pay any Commitment Fee Expenses or incur any other liability in connection with the Financing, or, if applicable, the Alternative Financing or (B) prepare or provide (1) any pro forma financial statements or pro forma financial information, including pro forma cost savings, synergies, capitalization or other pro forma adjustments desired to be incorporated into any pro forma financial statements or pro forma financial information, (2) any description of all or any component of the Financing, including any such description to be included in any liquidity or capital resources disclosure or any “description of notes”, (3) projections, risk factors or other forward-looking statements relating to all or any component of the Financing, (4) financial statements or any other information of the type required by Rule 3-09, Rule 3-10 or Rule 3-16 of Regulation S-X or (5) Compensation Disclosure and Analysis required by Item 402(b) of Regulation S-K, (ii) the effectiveness of any documentation executed by the Company and the Company Subsidiaries shall be subject to the consummation of the Closing and (iii) nothing shall obligate any individual other than an employee continuing to serve as a director of the Company or the Company Subsidiaries after the Closing to adopt or approve any corporate resolution or execute or deliver any other document in connection with the Financing, any Alternative Financing or the Financing Agreements. Notwithstanding anything to the contrary contained herein, the Company and the Company Subsidiaries shall not be required to deliver any financial statements or other financial information except as contemplated by clause (ii) of Section 6.16(a). In no event shall the Company or the Company Subsidiaries or any of their respective Affiliates be in breach of this Agreement because of the failure to deliver any financial or other information that is not currently readily available or is not otherwise prepared in the ordinary course of business of the Company and the Company Subsidiaries at the time requested by Parent. Notwithstanding anything to the contrary herein, (I) any breach (other than a willful and material breach) by the Company or the Company Subsidiaries of their obligations under Section 6.16 shall not constitute a breach of this Agreement for purposes of Section 8.1 or Section 8.3 or the condition precedent set forth in Section 7.3, and (II) no breach by the Company or the Company Subsidiaries of their obligations of Section 6.16 with respect to the Opco Debt Financing or Section 6.16(a)(viii) shall constitute a breach of this Agreement for purposes of Section 8.1 or Section 8.3 or the condition precedent set forth in Section 7.3.
(d) All confidential, proprietary or non-public information regarding the Company Business obtained by Parent or its Representatives pursuant to this Section 7.9 to 6.16 shall be kept confidential in accordance with the terms of the Confidentiality Agreement; provided. Any Lender Related Parties who receive confidential, that Allergan acknowledges and agrees that the confidentiality undertakings that proprietary or non-public information as provided in Section 6.7(b) or this Section 6.16 will be obtained deemed to be Representatives of Parent for purpose of the obligations in such sentence and under the terms of the Confidentiality Agreement.
(e) Parent shall (i) promptly upon request by the Company, reimburse the Company and the Company Subsidiaries for all reasonable and documented out-of-pocket costs and expenses (including attorneys’ fees) incurred by the Company or any of its Subsidiaries in connection with syndication the cooperation provided for in this Section 6.16, and (ii) promptly indemnify and hold harmless the Company and the Company Subsidiaries and their respective Representatives from and against any and all liabilities, claims, losses, damages, costs, expenses, interest, awards, judgments and penalties (including reasonable and documented attorneys’ fees) actually suffered or incurred by them in connection with the arrangement or consummation of the Financing will be in a form customary for use in Financing, except to the syndication extent any such liabilities, claims, losses, damages, costs, expenses, interest, awards, judgments or penalties arise out of acquisition-related debt during a takeover offer period in compliance with the requirements or result from fraud, willful misconduct or gross negligence by any of the Panel and the Takeover RulesCompany, its Subsidiaries or their respective Representatives, as determined by a final, non-appealable judgment of a court of competent jurisdiction.
Appears in 1 contract
Samples: Merger Agreement (Perspecta Inc.)
Financing Cooperation. (a) Until the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan Seller shall use its reasonable best efforts, and shall cause each of its Subsidiaries to use its commercially reasonable best effortsefforts to, and shall use its commercially reasonable best efforts to cause its and their respective officersRepresentatives to, employees and advisors and other Representatives, including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie and its Subsidiaries Buyer, at Buyer’s sole expense, such assistance cooperation in connection with the Financing as may be reasonably requested by AbbVie in writing Buyer that is customary in connection with the arranging, obtaining and syndication arrangement of the Financing, including using reasonable best efforts with respect todebt financings in acquisition transactions; including:
(i) participating assisting in preparation for and assisting with the due diligence, syndication or other marketing of the Financing, including using participation at reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority times and upon reasonable advance notice in a reasonable number of meetingsmeetings and calls, presentationsdrafting sessions, road shows, drafting sessions, rating agency presentations and due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie assisting Buyer and its the Financing Sources in the preparation of (A) bank information memoranda, and similar marketing documents for the Financing, authorizing the distribution of information to prospective lenders and identifying any portion of such information that constitutes material, nonpublic information and (B) customary materials for rating agency presentations;
(iii) as promptly as reasonably practicable and in any event prior to the Closing, furnishing Buyer and the Financing Sources and their respective Representatives with historical financial and other customary pertinent information (collectively, regarding the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries Business as may be reasonably requested in writing by Buyer, provided, however, that Seller shall not be required to provide historical financial information for any period earlier than those reflected in the Audited Financial Statements;
(iv) facilitating the obtaining of customary consents from the independent auditors who prepared the Audited Financial Statements consistent with the requirements of Applicable Law in connection with their delivery the use of the Audited Financial Statements in offering documents or current reports on Form 8-K and other documents to be filed with the SEC;
(v) assisting Buyer in connection with the preparation of pro forma financial information and financial statements to the extent required by Applicable Law, including the 1934 Act and the rules and regulations thereunder or necessary or reasonably required by the Financing Sources to be included in any bank information memorandum or other similar marketing documents; provided, however, that Seller shall not be required to assist Buyer with the preparation of pro forma financial statements reflecting any period earlier than those reflected in the Audited Financial Statements; provided, further, Buyer shall be responsible for timely provision of any post-Closing pro forma cost savings, synergies, capitalization, ownership or other pro forma adjustments desired to be incorporated into any pro forma financial information requested by Buyer to be delivered by the Business (excluding any information that would customarily be prepared with the cooperation of the Business);
(vi) taking customary negative assurance opinions and customary comfort letters relating corporate actions, subject to the occurrence of the Closing, reasonably requested by Buyer that are necessary to permit the consummation of the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of prior to the Completion Closing Date such all documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing the Business required by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to applicable “know your customer” and anti-money laundering rules and regulations, regulations including without limitation, the USA PATRIOT ACTAct to the extent reasonably requested at least ten (10) Business Days prior to the anticipated Closing Date. Notwithstanding anything in this Agreement to the contrary in this Section 7.9(acontrary, (x) or Section 7.9(b) below, (A) none of Allergan neither Seller nor any of its Subsidiaries shall be required to commit to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to that (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie is not contingent upon request by Allergan pursuant to Section 7.9(c))the Closing, (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above)Closing, (iii) provide access would encumber any assets of the Business prior to the Closing or disclose information that Allergan (iv) would encumber any assets of Seller or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light other than assets of the facts Business, at any time; and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan Seller nor any of its Subsidiaries shall be required to (1) take or permit the taking of any action that would result in a breach of any contract, violate any Applicable Law or subject it to actual or potential Liability, (i2) bear (or enter into any binding agreement with respect to) any cost or expense (other than as provided in this Agreement), or (3) pay (or enter into any binding agreement with respect to) any commitment or other fee or make any other payment or incur any other Liability or provide or agree to provide any indemnity; and; (y) neither Seller nor any of its Subsidiaries or Representatives shall be required to take any action under this Section 7.14 that would unreasonably interfere unreasonably with the business or operations of Allergan Seller or its Subsidiaries, ; and (iiz) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan or neither Seller nor any of its Subsidiaries or Representatives pursuant shall be required to this Section 7.9 take any action that will conflict with or violate their respective organizational documents.
(i) Seller shall deliver or cause to be kept confidential delivered to Buyer an unaudited balance sheet of the Business as of December 31, 2014, and the related unaudited statements of earnings, cash flows and changes in stockholders equity of the Business for the period commencing on October 1, 2014 and ending on December 31, 2014 (the “Business Q1 Interim Financial Statements”) together with the corresponding period for the immediately preceding fiscal year of the Business. The Business Q1 Interim Financial Statements shall be delivered if the Closing occurs on or after February 10, 2015 and shall be delivered as soon as available and in no event later than two (2) days before the Closing Date unless the Closing Date is after February 26, 2015 in which case they shall be delivered no later than seven (7) days before the Closing Date.
(ii) Seller shall deliver or cause to be delivered to Buyer an unaudited balance sheet of the Business as of March 31, 2015, and the related unaudited statements of earnings, cash flows and changes in stockholders equity of the Business for the period commencing on October 1, 2014 and ending on March 31, 2015 (the “Business Q2 Interim Financial Statements”) together with the corresponding period for the immediately preceding fiscal year of the Business. The Business Q2 Interim Financial Statements shall be delivered if the Closing occurs on or after May 13, 2015 and shall be delivered as soon as available and in no event later than two (2) days before the Closing Date.
(iii) The Business Q1 Interim Financial Statements and Business Q2 Interim Financial Statements shall be prepared in accordance with the Confidentiality Agreementapplicable SEC rules and regulations (including Regulation S-X) and GAAP, and shall be reviewed by Seller’s independent registered public accountants in accordance with applicable SEC rules and regulations (including Regulation S-X) and GAAP applicable to interim financial statements; provided, that Allergan acknowledges and agrees provided that the confidentiality undertakings that will Business Q1 Interim Financial Statements do not need to be obtained so reviewed if the Closing occurs on or after May 13, 2015.
(c) Unless previously delivered pursuant to Section 7.14(b)(i), Seller shall deliver or cause to be delivered to Buyer (i) as soon as available and no later than seven (7) days before the Closing Date, the unaudited statements of earnings of the Business for the period commencing on October 1, 2013 and ending December 31, 2013, and (ii) if the Closing has not already occurred, as soon as available and no later than March 16, 2015, an unaudited balance sheet of the Business as of December 31, 2014 and the related unaudited statements of earnings for the period commencing on October 1, 2014 and ending on December 31, 2014, in each case, prepared in accordance with applicable SEC rules and regulations (including Regulation S-X) and GAAP, but not subject to any review by Seller’s independent registered public accountants.
(d) Buyer shall indemnify and hold harmless Seller, its Subsidiaries and their respective Representatives from and against any and all Damages suffered or incurred by them in connection with syndication the arrangement of the Financing will be (including any action taken in a form customary accordance with this Section 7.14) and any information utilized in connection therewith (other than information provided in writing specifically for use in the syndication of acquisition-related debt during a takeover offer period in compliance connection with the requirements Financing by or on behalf of Seller or its Subsidiaries). In addition, Buyer shall, promptly upon request by Seller, reimburse Seller for all reasonable and documented out-of-pocket costs incurred by Seller or its Subsidiaries in connection with the Panel and the Takeover Rulescooperation contemplated by this Section 7.14.
Appears in 1 contract
Samples: Asset and Stock Purchase Agreement (Regal Beloit Corp)
Financing Cooperation. (a) Until Prior to the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9Closing, Allergan Seller shall use its commercially reasonable best efforts, and shall cause each of its Subsidiaries to use its reasonable best efforts, Subsidiary and shall use its reasonable best efforts to cause its and their respective officers, employees and advisors and other Representatives, including legal and accounting advisors, Representatives to use their commercially reasonable best efforts, to provide to AbbVie and its Subsidiaries such assistance as may be Purchaser with all cooperation reasonably requested by AbbVie Purchaser to assist it in writing that causing the conditions in the Debt Commitment Letter and the Mezzanine Commitment Letter to be satisfied or as is customary otherwise necessary or reasonably requested by Purchaser in connection with the arranging, obtaining Debt Financing and syndication of the Mezzanine Financing, including using reasonable best efforts with respect toincluding:
(i) participating in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority officers in a reasonable number of meetingsmeetings (including one-on-one), presentations, road shows, drafting due diligence sessions, due diligence drafting sessions and sessions with rating agencies and prospective lenders, lenders or investors and rating agenciesobtaining assistance from its accountants, at times including participating in a reasonable number of drafting and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection with the Financing (collectively, “Marketing Material”) and accounting due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers)sessions;
(ii) timely furnishing AbbVie assisting Purchaser, the Debt Financing Sources and its the Mezzanine Financing Sources with historical financial the timely preparation of customary rating agency presentations, marketing materials and other information memoranda (including the delivery of one or more customary information (collectively, the “Financing Information”representation and authorization letters) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used required in connection with the Financing;
(iii) facilitate the pledging and mortgaging of collateral, including assisting with the preparation of security documents, other definitive financing documents, and other certificates or documents and back-up therefor as may be reasonably requested by Purchaser or the Debt Financing Sources, and otherwise reasonably facilitating the pledging of collateral and the granting of security interests in respect of the Debt Financing provided that no obligation of Seller or any Subsidiaries of Seller under any agreement, document or pledge related to any of the Debt Financing shall be operative until the Closing;
(iv) furnishing Purchaser, the Debt Financing Sources and the Mezzanine Financing Sources, as promptly as practicable, with financial and other pertinent information (provided that Purchaser shall be responsible for the preparation, with the assistance of Seller and its independent accountants, of pro forma financial statements) relating to Seller and its Subsidiaries in respect of the Business as may be reasonably requested by Purchaser, including, without limitation, the Interim Financial Statements in accordance with Section 7.17;
(v) cooperating with Purchaser to obtain customary and reasonable corporate and facilities ratings, consents, approvals, authorizations, non-invasive environmental assessments, landlord consents, legal opinions, surveys and title insurance (including such owner’s affidavits, survey certifications, certificates of good standing and due authorization, articles of incorporation, non-imputation endorsements and any other documentation reasonably required by the title company to remove the standard exceptions from each title policy or add any endorsements to such title policies as reasonably required by the title company issuing title insurance for the Leased Business Real Property) as reasonably requested by Purchaser;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities assisting in negotiation of the Financing Sourcesdefinitive documents as may be reasonably requested by Purchaser;
(vii) causing reasonably facilitating the pledging or the reaffirmation of the pledge of collateral (including obtaining and delivering any pay-off letters and other cooperation in connection with the repayment or other retirement of existing indebtedness and the release and termination of any and all related liens) on or prior to the Closing Date, as well as cooperating to permit prospective lenders involved in the Financing to benefit from evaluate and assess the existing lender relationships assets of Allergan Seller and its SubsidiariesSubsidiaries for purposes of establishing collateral arrangements;
(viii) providing documents reasonably requested delivering notices of prepayment within the time periods required by AbbVie or the relevant agreements governing indebtedness and obtaining customary payoff letters, lien terminations and instruments of discharge to be delivered at the Closing, and giving any other necessary notices, to allow for the payoff, discharge and termination in full at the Closing of all indebtedness; and
(ix) promptly and in any event at least five (5) Business Days prior to the Closing Date, furnishing Purchaser, the Debt Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters Mezzanine Financing Sources with all documentation and other information (to the extent required) evidence that notice of any such repayment has been timely delivered to reasonably requested by the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Debt Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries Sources or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie Mezzanine Financing Sources at least ten (10) Business Days in advance of prior to the Completion Date in connection with the Financing Closing Date) that relates is required by regulatory authorities pursuant to applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Notwithstanding anything to the contrary Patriot Act.
(b) Nothing in this Section 7.9(a) or Section 7.9(b) below, (A) none of Allergan nor any of its Subsidiaries 7.19 shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan require Seller or any of its Subsidiaries to incur (i) waive or amend any personal liability terms of this Agreement or agree to pay any fees or reimburse any expenses prior to the Closing for which it has not received prior reimbursement or is not otherwise indemnified by or on behalf of Purchaser, or to give any indemnities that are effective prior to the Closing; or (ivii) result take any action that would unreasonably interfere with the ongoing operations of Seller and its Subsidiaries.
(c) Seller hereby consents to the use of Seller’s and its Subsidiaries’ names, trademarks and logos in connection with the Financing; provided, however, that such names, trademarks and logos are used solely in a material violation manner that is not intended or breach of, reasonably likely to harm or a default under, any material Contract to which Allergan disparage Seller or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all Subsidiaries.
(d) All non-public or other confidential information provided by or on behalf of Allergan Seller or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to Agreement shall be kept confidential in accordance with the Confidentiality Agreement; provided, however that Allergan acknowledges Purchaser shall be permitted to disclose such information to any financing sources or prospective financing sources and agrees other financial institutions and investors that are or may become parties to the confidentiality undertakings that will be obtained Debt Financing or the Mezzanine Financing and to any underwriters, initial purchasers or placement agents in connection with syndication of the Debt Financing will or the Mezzanine Financing (and, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as if parties thereto; or (ii) are subject to other customary confidentiality undertakings reasonably satisfactory to Seller (it being acknowledged and agreed that the notices and undertakings in a form customary customarily used in confidential information memoranda for use senior credit facilities or mezzanine facilities are reasonably satisfactory to Seller).
(e) Promptly upon request by Seller, Purchaser shall reimburse Seller (or pay in the syndication of acquisitionadvance) for any reasonable and documented out-related debt during a takeover offer period of-pocket costs and expenses (including outside attorneys’ fees) incurred by Seller in compliance connection with the requirements cooperation of Seller contemplated by this Section 7.19.
(f) Seller, its Subsidiaries and their respective Representatives shall be indemnified and held harmless by Purchaser (whether or not the Closing occurs) from and against any and all liabilities, losses, damages, claims, costs, expenses (including attorneys’ fees), interest, awards, judgments, penalties and amounts paid in settlement suffered or incurred by them in connection with their cooperation in arranging the Financing pursuant to this Agreement or the provision of information utilized in connection therewith, except to the extent resulting from, or by reason of information provided by or at the direction of Seller, any of its Subsidiaries or their respective Representatives, or to the extent that such liabilities, losses, damages, claims, costs or expenses, directly or indirectly, resulted from or arose out of the Panel and the Takeover Ruleswillful misconduct, bad faith or gross negligence of Seller, any of its Subsidiaries or their respective Representatives.
Appears in 1 contract
Financing Cooperation. (a) Until Prior to the earlier of Effective Time, the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan shall use its reasonable best effortsCompany shall, and shall cause each of its Subsidiaries to use its reasonable best effortsto, and shall use its reasonable best efforts to cause its and their respective the officers, employees employees, representatives and advisors of the Company and other Representativeseach of its Subsidiaries to, including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie Parent the following cooperation and its Subsidiaries such assistance cooperation as may be is reasonably requested by AbbVie in writing that is customary Parent in connection with the arranging, obtaining Debt Financing and syndication of the Financing, including using reasonable best efforts with respect toDebt Payoff to assist Parent in causing the conditions in the Debt Financing Letters to be satisfied:
(i) participating in participate in, and assisting with the due diligencehaving their senior officers participate in, syndication or other marketing of the Financingupon reasonable prior notice by Parent, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting due diligence sessions, due diligence drafting sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, ;
(Bii) assisting assist with AbbVie’s the preparation of customary materials for registration statementsrating agency presentations, bank information memoranda, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations memoranda and similar documents required in connection with the Financing including the syndication thereof (collectivelyincluding requesting any consents of accountants for use of their reports in any materials relating to the Financing and the delivery of one or more customary representation letters);
(iii) execute and deliver any pledge and security documents and intercreditor agreements, “Marketing Material”guarantees, indentures, currency or interest hedging arrangements, other definitive financing documents, a certificate of the chief financial officer of the Company with respect to solvency of the Company and its Subsidiaries on a consolidated basis to the extent reasonably required in connection with the Financing, and other certificates or documents and legal opinions as may be reasonably requested by Parent (including consents of accountants for use of their reports in any materials relating to the Debt Financing) and due diligence sessions otherwise reasonably facilitating the pledging of collateral (provided that such documents will not take effect until the Effective Time);
(iv) furnish Parent and its Financing sources as promptly as practicable with (A) audited (which audit shall be unqualified) consolidated balance sheets and related theretostatements of income and cash flows of the Company for the its 2010 fiscal year, (B) within 30 days of each fiscal month ended after close of its most recent fiscal quarter, unaudited consolidated balance sheets and related statements of income and cash flows of the Company for each such fiscal month, as prepared in the ordinary course of business and consistent with past practice, (C) delivering all financial statements, pro forma financial information, financial data, audit reports and consenting other information (other than information for which the Company is dependent upon information to be provided by Parent to the inclusion or incorporation Company in any SEC filing related order to the Financing of the historical audited consolidated prepare such financial statements and unaudited consolidated interim financial statements projections, unless such information is provided to the Company by Parent within five (5) Business Days of Allergan included or incorporated receipt of notice by reference into Parent from the Allergan SEC Documents (Company that such information is required) regarding the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan Company and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K promulgated under the Securities Act if for a registered public offering of non-convertible debt securities of the Financing were incurred by AbbVie Company (including for Parent’s preparation of pro forma financial statements), to the extent the same is of the type and registered on Form S-3 form customarily included in an offering memorandum for private placements of non-convertible high-yield notes under Rule 144A promulgated under the Securities ActAct (which, including audit reports for the avoidance of annual doubt, shall not include any financial statements required by Rule 3-10 or 3-16 of Regulation S-X or any Compensation, Discussion and Analysis required by Regulation S-K Item 402(b)) or otherwise necessary to receive from the Company’s independent accountants customary “comfort” (including “negative assurance” comfort) with respect to the extent so required (which audit reports shall not financial information to be subject included in such offering memorandum and which, with respect to any “going concern” qualificationsinterim financial statements, shall have been reviewed by the Company’s independent accountants as provided in SAS 100, (D) a detailed business plan or projections of the Company for the Company’s fiscal years 2011 through 2018 and for the four quarters beginning with the first fiscal quarter of the Company’s fiscal year 2011, in each case in form and substance satisfactory to Parent (it being understood and agreed that, (i) on or prior to the date hereof, the Parent has provided the Commitment Parties (as defined in the Debt Commitment Letter) with copies of such projections through 2015 and such projections, through 2015, are in form and substance reasonably satisfactory to the Commitment Parties, and (ii) the Company’s obligations under this clause (D) are satisfied, subject only to the requirement to supplement such projections through 2018 if and as required under the Agreement), or and (BE) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort authorization letters relating to the Financing;
financing sources authorizing the distribution of information to prospective lenders and containing customary representations (all such information in this clause (iv) causing Allergan’s independent auditors to provide customary cooperation with ), the Financing“Required Information”);
(v) obtaining use reasonable best efforts to cooperate with Parent and Parent’s efforts to obtain customary and reasonable accountants’ comfort letters (drafts of which are delivered no later than the consents first day of Allerganthe Marketing Period which such accountants are prepared to deliver upon completion of customary procedures), corporate and facilities ratings, consents, landlord waivers and estoppels, non-disturbance agreements, non-invasive environmental assessments, legal opinions, surveys, and title insurance as reasonably requested by Parent;
(vi) take all actions reasonably necessary to establish bank and other accounts and blocked account agreements and lock box arrangements in connection with the foregoing;
(vii) enter into one or more credit or other agreements or indentures on terms satisfactory to Parent in connection with the Debt Financing immediately prior to the Effective Time to the extent direct borrowings or debt incurrences by the Company or any Company Subsidiary are contemplated by the Debt Commitment Letter;
(viii) at the Company’s independent auditors option, take or appoint a representative of Parent to use their audit reports take all corporate actions, subject to the concurrent occurrence of the Closing, reasonably requested by Parent to permit the consummation of the Debt Financing; and
(ix) request customary payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the audited Historical Financial Statements Closing Date of Allergan all indebtedness and Liens under the Credit Facilities and any other Funded Indebtedness to references be extinguished on the Closing Date (the “Debt Payoff”); provided that (v) nothing herein shall require such cooperation to the extent it would require the Company to waive or amend any terms of this Agreement or agree to pay any fees or reimburse any expenses prior to the Effective Time for which it has not received prior reimbursement by or on behalf of Parent, or give any indemnities that are effective prior to the Effective Time, (w) nothing herein shall require such independent auditors cooperation from the Company or its Subsidiaries to the extent it would unreasonably interfere with the ongoing business or operations of the Company and its Subsidiaries, (x) no action, liability or obligation of the Company or any of its Subsidiaries or any of their respective Representatives under any certificate, agreement, arrangement, document or instrument relating to the Debt Financing shall be effective until the Effective Time, (y) the Company shall not be deemed in breach of its obligations pursuant to clause (iii) of this Section 5.11(a) for failure to deliver the certificate with respect to solvency referred to in such clause (iii) solely to the extent that (A) the failure to deliver such certificate resulted from (I) any actual or anticipated principal amount of indebtedness in respect of the Debt Financing in excess of any amount contemplated by, the Debt Commitment Letter and the Fee Letter (including any flex provisions described therein, in each case in effect on the date hereof), (II) any actual or anticipated amount of original issue discount or upfront fees in lieu thereof applied to the Debt Financing being in excess of the maximum amount of original issue discount or upfront fees in lieu thereof that may be imposed pursuant to the terms of the Debt Commitment Letter and Fee Letter (including any flex provisions described therein, in each case in effect on the date hereof), in each case as experts in effect on the date hereof, (III) any actual or anticipated aggregate fees payable in respect of the Debt Financing being in excess of the maximum aggregate fees payable in respect of the Debt Financing pursuant to the Debt Commitment Letter and Fee Letter (including any flex provisions described therein, in each case in effect on the date hereof), in each case as in effect on the date hereof, (IV) any actual or anticipated weighted-average cost applicable to the Debt Financing being in excess of the maximum weighted-average costs applicable to the Debt Financing pursuant to the Debt Commitment Letter and Fee Letter (including any flex provisions described therein, in each case in effect on the date hereof), in each case as in effect on the date hereof, or (V) the amount and timing of debt service payments in respect of the Debt Financing (including, as applicable, any senior notes) and any other indebtedness first incurred by the Company or any of its Subsidiaries on the Closing Date at the written direction of Parent or Merger Sub or as a result of the Merger, or at any time after the Effective Time, or able to be incurred under facilities or other financing arrangements first entered into (including through assumption or guarantee) by the Company or any of its Subsidiaries on the Closing Date at the written direction of Parent or Merger Sub or as a result of the Merger, or at any time after the Effective Time, being materially less favorable to the Company and its Subsidiaries than those applicable to the Debt Financing as set forth in the Debt Commitment Letter and Fee Letter (including any flex provisions thereunder), in each case as in effect on the date hereof, and (B) any of the foregoing described in clauses (A)(I) — (A)(IV) resulted from an amendment to or modification, waiver or replacement of the Debt Commitment Letter or Fee Letter (in each case as in effect on the date hereof) (with it being understood and agreed, for the avoidance of doubt, that no exercise of any or all flex terms contained in the Debt Commitment Letter or Fee Letter (in each case as in effect on the date hereof) shall be considered an amendment, modification, waiver or replacement for purposes of this clause (y)) and (z) any bank information memoranda and high-yield offering prospectuses or memoranda required in relation to the Debt Financing (1) need not be issued by the Company or any of its Subsidiaries and (2) shall contain disclosure and pro forma financial statements reflecting the Surviving Entity and/or its Subsidiaries as the obligor.
(b) The Company, its Affiliates and their respective officers, advisors and representatives shall be indemnified and held harmless by Parent for and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred by them in connection with the arrangement of the Debt Financing, the Debt Payoff, and/or the provision of information utilized in connection therewith (other than information provided in writing specifically for such use by or on behalf the Company or any of its Affiliates) to the fullest extent permitted by applicable law, except to the extent such liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties were caused by the gross negligence or willful misconduct of the Company, its Affiliates or their respective officers, advisors and representatives.
(c) The Company hereby (i) agrees to deliver to Parent prior to the commencement of the Marketing Material Period electronic versions of the trademarks, service marks and registration statements corporate logos of the Group Companies for use in marketing materials for purposes of facilitating the syndication of the Debt Financing and related government filings filed or used (ii) consents to the use of its and its Subsidiaries’ trademarks, service marks and corporate logos in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Financing (; provided that such trademarks, service marks and corporate logos are used solely in a manner that is not intended to and is not or reasonably likely to harm or disparage Allergan the Company or any of its Subsidiaries or the reputation or goodwill of Allergan the Company or any of its Subsidiaries); and.
(xd) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Notwithstanding anything to the contrary in this Section 7.9(a) or Section 7.9(b) below, (A) none of Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all All non-public or other confidential information provided by or on behalf of Allergan the Company or any of its Subsidiaries officers, employees, representatives or Representatives advisors pursuant to this Section 7.9 to Agreement shall be kept confidential in accordance with the Confidentiality Agreement; providedprovided that, that Allergan acknowledges notwithstanding anything to the contrary in this Agreement or the Confidentiality Agreement, Parent and agrees that the confidentiality undertakings that will Merger Sub shall be obtained permitted to disclose such information to potential sources of capital, rating agencies, prospective lenders and investors and their respective officers, employees, representatives and advisors in connection with syndication the Financing so long as such Persons agree to be bound by the Confidentiality Agreement or other customary confidentiality undertaking reasonably satisfactory to the Company and of which the Company shall be a beneficiary.
(e) It is acknowledged and agreed that the Debt Financing may include senior notes (which may be secured) in lieu of a senior bridge facility and, as applicable, such senior notes shall be deemed part of the Debt Financing will be in a form customary and Financing for use in the syndication all purposes of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover Rulesthis Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Logan's Roadhouse of Kansas, Inc.)
Financing Cooperation. (a) Until . Prior to the earlier of First Effective Time, the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan shall use its reasonable best effortsCompany shall, and shall cause each of its the Company Subsidiaries to to, use its and their reasonable best effortsefforts to, and shall use its reasonable best efforts to cause its and their respective officersRepresentatives to, employees provide customary cooperation and advisors and other Representativescustomary financial information, including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie and its Subsidiaries such assistance as may be in each case that is reasonably requested by AbbVie in writing that is customary Parent in connection with any financing (the arranging“Financing”) obtained or to be obtained by Parent for the purpose of financing the Transactions or any transaction undertaken in connection therewith (it being understood that the receipt of any such financing is not a condition to the Mergers), obtaining including by (i) furnishing, or causing to be furnished, to Parent (x) audited consolidated balance sheets and syndication related consolidated statements of operations, comprehensive loss, stockholders’ equity and cash flows for the Company for each of the Financingthree most recently completed fiscal years of the Company ended at least ninety (90) days prior to the Closing Date prepared in accordance with GAAP applied on a basis consistent with that of the most recent fiscal year and (y) unaudited consolidated balance sheets and related consolidated statements of operations, including comprehensive loss, stockholders’ equity and cash flows (in each case, subject to normal year-end adjustments and absence of footnotes) for each subsequent fiscal quarter ended on a date that is at least forty-five (45) days before the Closing Date, and (ii) using reasonable best efforts to cause the Company’s and the Company Subsidiaries’ independent accountants, as requested by Parent, to consent to the use of their audit reports on the financial statements of the Company and the Company Subsidiaries in any materials relating to the Financing or in connection with respect to:
(i) participating in and assisting any filings made with the due diligence, syndication SEC or other marketing of pursuant to the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required Securities Act or Exchange Act in connection with the Financing and to provide any “comfort letters” (collectively, “Marketing Material”) including drafts thereof which such accountants are prepared to issue at the time of pricing and due diligence sessions related thereto, (C) delivering and consenting to the inclusion at closing of any offering or incorporation in any SEC filing related to the Financing placement of the historical audited consolidated financial statements Financing) necessary and unaudited consolidated interim financial statements of Allergan included or incorporated reasonably requested by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings Parent in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings any debt capital markets transaction comprising a part of the applicable typeFinancing and to participate in customary due diligence sessions; provided, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries however, that (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors no such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Notwithstanding anything to the contrary in this Section 7.9(a) or Section 7.9(b) below, (A) none of Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to extent it would (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c))unreasonably disrupt the conduct of the Company’s business, (ii) execute require the Company or deliver the Company Subsidiaries to incur any definitive financing documents fees, expenses or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective liability prior to the Completion Date First Effective Time for which it is not promptly reimbursed or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above)simultaneously indemnified, (iii) provide access be reasonably expected to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan the Company or any of its Subsidiaries Company Subsidiary to incur any material personal liability or liability, (iv) require the Company to waive or amend any terms of this Agreement or (v) require the Company to provide any information that is prohibited or restricted by applicable Law or is legally privileged (provided, however, that the Company shall use its commercially reasonable efforts to make appropriate substitute arrangements to permit reasonable disclosure not in violation of Law or to allow for such access or disclosure to the maximum extent that does not result in a material violation loss of such legal privilege); and (B) the Company and the Company Subsidiaries shall not be required to execute any credit or breach of, or a default under, any material Contract to which Allergan security documentation or any other definitive agreement (other than customary authorization letters) or provide any indemnity, in each case of its Subsidiaries is a partythis clause (B), prior to the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to be kept confidential in accordance with the Confidentiality AgreementFirst Effective Time; provided, further, that Allergan acknowledges in no event shall the Company’s breach of any obligations in this Section 6.14(a) be considered in determining the satisfaction of the condition set forth in Section 7.2(b) unless (i) the Company shall not have attempted in good faith to comply with such obligation in this Section 6.14(a) and agrees that (ii) such breach is the confidentiality undertakings that will be obtained in connection with syndication primary cause of Parent being unable to obtain the proceeds of the Financing will be in a form customary for use in at the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover RulesFirst Effective Time.
Appears in 1 contract
Financing Cooperation. (a) Until the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan shall use its reasonable best effortsThe Company shall, and shall cause each of its Subsidiaries to to, provide and use its reasonable best efforts, and shall use its reasonable best efforts to cause its and their its Subsidiaries’ respective officers, employees and advisors and other Representatives, including its or their legal and accounting advisors, to use their reasonable best effortsprovide, to provide to AbbVie and its Subsidiaries such assistance as may be at the sole expense of Parent, all cooperation reasonably requested by AbbVie in writing that is customary Parent in connection with any debt financing or debt facilities to be obtained, arranged or committed to on or prior to the arrangingClosing Date that is to be made available to the Company from and after the Closing Date, obtaining and syndication of if any (any such debt financing or debt facility, the “Debt Financing”), including using reasonable best efforts with in respect toof the following:
(i) participating assisting in preparation for and assisting with the due diligence, syndication or other participation in marketing of the Financingefforts, including using reasonable best efforts with respect participating at locations and times to (A) the participation by members of management of Allergan with appropriate seniority be mutually agreed in a reasonable number of meetings, presentations, road showslender meetings and calls, drafting sessions, rating agency presentations, road shows and due diligence sessions (including accounting due diligence sessions) and sessions with prospective lenders, investors and rating agencies, at times ratings agencies and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required Parent in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers)obtaining ratings;
(ii) timely furnishing AbbVie assisting Parent and its the Debt Financing Sources with historical financial and other customary information (collectively, sources in the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings preparation of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of bank information memorandum and similar marketing documents for the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities ActDebt Financing, including audit reports the execution and delivery of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or customary representation letters in connection with bank information memoranda; and (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary materials for Financings of the applicable typerating agency presentations;
(iii) providing to AbbVie’s legal counsel as promptly as reasonably practicable furnishing Parent and its independent auditors such customary documents the Debt Financing sources and their respective Representatives with all financial and other customary information relating to Allergan and regarding the Company or any of its Subsidiaries of the type and form customarily included in marketing documents used to syndicate credit facilities of the type to be included in the Debt Financing, or as may be reasonably requested in connection with their delivery by Parent, to consummate the syndication of any customary negative assurance opinions and customary comfort letters relating to credit facilities contemplated by the Debt Financing;
(iv) causing Allergan’s independent auditors using reasonable best efforts to provide customary cooperation financial information regarding the Company and its Subsidiaries to assist Parent in connection with the Financingpreparation of pro forma financial information and financial statements reasonably requested by Parent or required by the Debt Financing sources to be included in any offering documents; provided that neither the Company nor any of its Subsidiaries or Representatives shall be responsible in any manner for information relating to the proposed debt and equity capitalization that is required for such pro forma financial information;
(v) obtaining executing and delivering as of (but not before) the consents Closing any pledge and security documents, other definitive financing documents, or other certificates, customary legal opinions from local counsel or documents as may be reasonably requested by Parent (including a certificate of Allergan’s independent auditors the chief financial officer of the Company with respect to use their audit reports the solvency of the Company and its Subsidiaries on a consolidated basis (without giving effect to the audited Historical Financial Statements identity of Allergan Parent and to references to such independent auditors as experts in any Marketing Material Merger Sub)) and registration statements and related government filings filed or used otherwise facilitating the pledging of collateral (including (x) cooperation in connection with the Financingpay-off of existing indebtedness to the extent contemplated by this Agreement and the release of related Liens and termination of security interest and (y) cooperation in connection with Parent’s efforts to obtain environmental assessments and title insurance);
(vi) obtaining Allergan’s independent auditors’ customary comfort letters assisting Parent to obtain waivers, consents, estoppels and assistance with approvals from other parties to material leases, encumbrances and contracts relating to the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan Company and its Subsidiaries;
(viiivii) providing documents reasonably requested by AbbVie or taking all reasonable actions necessary to (A) permit the Debt Financing Sources sources to evaluate the Company and its Subsidiaries’ current assets, cash management and accounting systems, policies and procedures relating thereto for the purposes of establishing collateral arrangements as of the Closing and to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date assist with other collateral audits and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters due diligence examinations and (B) establish bank and other accounts and blocked account agreements and lock box arrangements to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos necessary in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries)Debt Financing; and
(xviii) providing at least three (3) Business Days in advance of the Completion Date such all documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing required by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to applicable “know your customer” and anti-money laundering rules and regulations, regulations including without limitation, the USA PATRIOT ACT. Notwithstanding anything Act to the contrary in this Section 7.9(aextent reasonably requested by Parent or the Debt Financing sources; provided, that, (i) none of the Company or Section 7.9(b) below, its Subsidiaries nor any of their respective Representatives shall be required to (A) none pay any commitment or other similar fee or make any other payment in connection with the Debt Financing prior to the Closing that is not simultaneously reimbursed by Parent or (B) take any action that will conflict with or violate the Company’s or any of Allergan its Subsidiaries’ organizational documents; (ii) nothing herein shall require such cooperation to the extent it would, in the good faith determination of the Company, interfere unreasonably with the business or operations of the Company or its Subsidiaries; (iii) neither the Company nor any of its Subsidiaries shall be required to commit to take or permit the taking of any action in connection with the Debt Financing that is not contingent upon the Closing (including the entry into any agreement) other than the authorization letters referred to in clause (a)(ii) above; and (iv) neither the Company nor any of its Subsidiaries nor any of their respective officers, directors or managing members shall be required to take any action or provide any approval in respect of the Debt Financing prior to the Closing (other than those actions contemplated to be taken prior to the Closing pursuant to this Section 7.9(a) 6.13). Nothing contained in this Section 6.13 or Section 7.9(b) below otherwise shall require the Company or any of its Subsidiaries, prior to (i) pay any commitment the Closing, to be an issuer or other fee obligor with respect to the Debt Financing. Parent shall, promptly upon request by the Company, reimburse the Company for all reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred by the Company or incur its Subsidiaries or their respective Representatives in connection with the cooperation contemplated by this Section 6.13 and shall indemnify and hold harmless the Company and its Subsidiaries and their respective Representatives from and against any liability and all losses, liabilities, damages, claims, costs, expenses (including reasonable attorneys’ fees), interest, awards, judgments and penalties suffered or incurred by them in connection with the arrangement of the Debt Financing, any action taken by them at the request of Parent pursuant to this Section 6.13 and any information utilized in connection therewith (other than third-party costs and expenses that are to be promptly reimbursed information provided in writing by AbbVie upon request by Allergan pursuant to Section 7.9(cthe Company or its Subsidiaries in connection with the Debt Financing)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (case, except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light suffered or incurred as a result of the facts and circumstances at bad faith, gross negligence or willful misconduct by the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan Company or any of its Subsidiaries or, in each case, their respective Representatives.
(b) The Company hereby consents to the reasonable use of its and its Subsidiaries’ logos in connection with the Debt Financing; provided that such logos are used solely in a manner that does not violate any contractual obligation of the Company and is not intended or reasonably determines would jeopardize any attorney-client privilege of Allergan likely to harm, disparage or otherwise adversely affect the Company or any of its Subsidiaries.
(c) Parent may reasonably request the cooperation of the Company and its Subsidiaries under this Section 6.13 at any time, and from time to time and on multiple occasions, between the date hereof and the Closing to effect the Debt Financing. The Company shall (provided that Allergan i) timely file all reports on Form 10-K, Form 10-Q and Form 8-K, to the extent required to include financial information pursuant to Item 9.01 thereof, and (ii) use reasonable best efforts to timely file all other Forms 8-K, in each case, required by the SEC in accordance with law.
(d) The Company shall provide to Parent (x) within forty-five (45) days of the end of each of the first three fiscal quarters of the fiscal year, quarterly unaudited financial statements, and (y) within ninety (90) days of the end of each fiscal year, audited financial statements for such fiscal year.
(e) Prior to the Closing, the Company shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information their independent auditors to be disclosed in a manner that would not result provide, consistent with customary practice, (A) reasonable assistance in the loss preparation of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, statements by Parent and (B) none reasonable assistance and cooperation to Parent, including attending accounting due diligence sessions.
(f) Parent 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 Allergan Boardavailability of any Debt Financing, officers of Allergan, subject to the satisfaction or directors and officers waiver of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated conditions set forth in Article VII.
(except the execution and delivery of any applicable Allergan Supplemental Indentures), and (Cg) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all All non-public or other otherwise confidential information provided by regarding the Company or on behalf of Allergan or any of its Subsidiaries obtained by Parent or its Representatives pursuant to this Section 7.9 to 6.13 shall be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained in connection with syndication of the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover Rules.
Appears in 1 contract
Financing Cooperation. (a) Until the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan The Company shall use its commercially reasonable best efforts, and shall cause each of its Subsidiaries to use its reasonable best efforts, and shall use its reasonable best efforts to actively assist (and to cause its the Subsidiaries of the Company to actively assist) Parent, Merger Sub and their respective officersthe Lenders in completing a syndication with respect to the Debt Financing, employees and advisors and other Representatives, including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie and its Subsidiaries as such assistance as may be reasonably requested by AbbVie in writing Parent from time to time, including: (i) using commercially reasonable efforts to ensure that is customary the syndication efforts benefit from the Company’s and its Subsidiaries’ existing banking relationships; (ii) facilitating direct contact, following reasonable advance notice and during normal business hours, between senior management of the Company and the proposed Lenders; (iii) using commercially reasonable efforts to prepare and provide to the Lenders all reasonable information with respect to the Company and its Subsidiaries, including all financial information, projections and other forward-looking information (such projections and other forward-looking information, the “Projections”), as the Commitment Parties may reasonably request in connection with the arranging, obtaining Debt Financing and arrangement and syndication of the Financing, including using reasonable best efforts with respect to:
thereof; (iiv) participating in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each caseassisting, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as assistance may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating by Parent from time to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation time, with the Financing;
(v) obtaining the consents preparation of Allergan’s independent auditors one or more confidential information memoranda and other marketing materials to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or be used in connection with the syndication associated with the Debt Financing;
; (v) facilitating the participation, following reasonable advance notice and during normal business hours, by the Company’s officers in meetings with prospective Lenders; (vi) obtaining Allergan’s independent auditors’ customary comfort letters furnishing, upon reasonable request and assistance with for no fee (other than the accounting due diligence activities reimbursement of any out-of-pocket expenses), to the Commitment Parties electronic versions of the trademarks, service marks and corporate logos of the Company and its Subsidiaries solely for the purpose of facilitating the syndication of the Debt Financing Sources;
(with no right of assignment or transfer); (vii) causing delivering to the administrative agent under the Debt Financing a secretary’s certificate of the Company and each Subsidiary of the Company that becomes a guarantor under the Debt Financing attaching the organizational documents, resolutions or other action approving the Debt Financing, and good standing and incumbency certificates with respect to benefit from the existing lender relationships of Allergan Company; and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating using commercially reasonable efforts to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of provide all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan with respect to the Company and its Subsidiaries as is that shall have been reasonably requested in writing by AbbVie such administrative agent at least ten (10) Business Days in advance seven days prior to the Closing Date that such administrative agent reasonably determines, based on the advice of the Completion Date in connection with the Financing that relates to legal counsel, is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the requirements of the USA PATRIOT ACTAct, Title III of Pub. Notwithstanding anything L. 107-56 (signed into law on October 26, 2001). No breach by the Company of this covenant shall be deemed material for purposes of this Agreement, nor shall any such breach give rise to any liability or obligation on the part of the Company or any rights on the part of Parent or Merger Sub, in each case, unless such breach is a material breach and is the primary cause of the Debt Financing not being funded under the Debt Commitment Letter. Parent shall indemnify and hold harmless the Company, its Subsidiaries and the Representatives for any liability, cost or expense (including all travel and administrative expenses and all reasonable fees of counsel, accountants and other financial advisors to the contrary Company) arising out of their compliance with the foregoing covenants. All Lenders and Commitment Parties shall be deemed to be “Representatives” (as defined in this Section 7.9(athe Confidentiality Agreement) or Section 7.9(b) belowof Parent, (A) none of Allergan nor and all information obtained by Parent, any of its Subsidiaries representatives, any Lender or any Commitment Party shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior subject to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light provisions of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant Confidentiality Agreement. Any failure by any Lender or Commitment Party to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to be kept confidential in accordance comply with the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained in connection with syndication or any act or omission by any Lender or Commitment Party that, if committed by Parent, would constitute a breach of the Financing will Confidentiality Agreement, shall be in deemed to be a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements breach of the Panel and the Takeover RulesConfidentiality Agreement by Parent for which Parent shall be responsible.
(b) For purposes of this Agreement:
Appears in 1 contract
Financing Cooperation. (a) Until Prior to the earlier Closing, the Company shall provide to Parent all cooperation reasonably requested by Parent to facilitate a Debt Financing of the Completion and Merger Consideration, including, but not limited to, the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan shall use its following:
(i) using commercially reasonable best efforts, and shall cause each of its Subsidiaries to use its reasonable best efforts, and shall use its reasonable best efforts to cause the senior officers of each of the Company to participate in a reasonable number of requested meetings, presentations, due diligence sessions and drafting sessions in connection with any Debt Financing, including direct contact between senior management of the Company with any actual and potential Debt Financing Sources;
(ii) reasonably assist with the preparation of materials for bank information memoranda and similar documents reasonably required in connection with any Debt Financing;
(iii) request its independent accountants to provide reasonable assistance to Parent consistent with their customary practice (including to provide consent to Parent to prepare and use their respective officersaudit reports relating to the Company and issue any necessary “comfort letters,” in each case, employees on customary terms and advisors consistent with their customary practice in connection with any Debt Financing);
(iv) execute and deliver any credit agreements, notes, guarantee and collateral documents, hedging arrangements, pay-off letters, other definitive financing documents, a certificate of the chief financial officer or treasurer (or other comparable officer) of the Company that will be effective at the Closing certifying the solvency, after giving effect to the Closing, of the Company on a consolidated basis and other Representatives, including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie and its Subsidiaries such assistance customary certificates or documents as may be reasonably requested by AbbVie in writing that is customary in connection with Parent or any Debt Financing Source and otherwise reasonably facilitating the arranging, obtaining and syndication pledging of the Financing, including using reasonable best efforts with respect to:
(i) participating in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers)collateral;
(iiv) timely furnishing AbbVie provide customary authorization letters to any Debt Financing Source of any Debt Financing authorizing the distribution of information to prospective lenders (including customary 10b-5 and its Financing Sources with historical financial and other customary material non-public information representations) (collectively, the “Financing InformationAuthorization Letters”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with take such other actions as reasonably requested by Parent to facilitate the accounting due diligence activities satisfaction on a timely basis of all the Financing Sources;conditions precedent to the Debt Financing; and
(vii) causing within the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) time period required by any Debt Financing, providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing required by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitationincluding, the USA PATRIOT ACT. Notwithstanding anything to the contrary in this Section 7.9(a) or Section 7.9(b) belowAct as, (A) none of Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than third-party costs when and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b)any Debt Financing, applicable Allergan Supplemental Indenturesas determined by Parent in good faith.
(b) In no event shall Company be required to (1) bear any cost or expense, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above)pay any fee, (iii) provide access to or disclose information that Allergan incur any other actual or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, potential Liability in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Debt Financing prior to the CompletionClosing, (vi2) commence take any Allergan Note Offers and Consent Solicitations actions to the extent such actions would unreasonably interfere with its respective ongoing business or (vii) prepare any pro forma financial information or projectionsoperations, (B3) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business reasonably be expected to conflict with, or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material any violation or breach of, or a default under(with or without notice or lapse of time, or both) under any of their respective organizational and governing documents, any material Contract to which Allergan applicable Laws or the documents governing the Indebtedness or (4) execute or deliver, or take any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public corporate or other confidential information provided by action to adopt or on behalf of Allergan approve, any document, agreement, certificate or any of its Subsidiaries or Representatives pursuant instrument with respect to this Section 7.9 to be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that the confidentiality undertakings Debt Financing that will be obtained effective before the Closing Date (in connection with syndication of each case, other than the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover RulesAuthorization Letters).
Appears in 1 contract
Financing Cooperation. (a) Until Prior to the earlier of Effective Time, the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan shall use its reasonable best effortsCompany shall, and shall cause each of its Subsidiaries to use its reasonable best effortsto, and shall use its reasonable best efforts to cause its and their respective officersRepresentatives to, employees and advisors and other Representatives, including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie and its Subsidiaries such assistance as may be Parent with all cooperation reasonably requested by AbbVie Parent to assist it in writing that causing the conditions in the Debt Commitment Letters to be satisfied or as is customary otherwise reasonably requested by Parent in connection with the arranging, obtaining and syndication of the Debt Financing, including using reasonable best efforts with respect to:including;
(i) participating in and assisting with the due diligencecausing its management team, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority and expertise, including its senior executive officers, to assist in preparation for and to participate in a reasonable and limited number of meetings, presentations, road shows, drafting due diligence sessions, due diligence drafting sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, ;
(Bii) assisting with AbbVie’s the timely preparation of customary materials for registration statements, offering documents, private placement memorandarating agency presentations, bank information memoranda, road show materials and high-yield offering prospectuses, rating agency presentations and similar documents memoranda or other customary marketing materials required in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable typeDebt Financing;
(iii) providing to AbbVie’s legal counsel assisting Parent in connection with the preparation and its independent auditors such customary documents registration of (but not executing) any pledge and security documents, supplemental indentures, currency or interest hedging arrangements and other customary information relating to Allergan and its Subsidiaries definitive financing documents as may be reasonably requested by Parent or the Financing Sources (including using reasonable best efforts to obtain consents of accountants for use of their reports in connection with their delivery of any customary negative assurance opinions and customary comfort letters materials relating to the Debt Financing and accountants’ comfort letters, in each case as requested by Parent), and otherwise reasonably facilitating the pledging of collateral and the granting of security interests in respect of the Debt Financing, it being understood that such documents will not take effect until the Effective Time;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used extent required in connection with the Debt Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters , furnishing Parent and assistance with the accounting due diligence activities of the Financing Sources;
, as promptly as practicable, with (vii1) causing audited consolidated balance sheets and related statements of income and cash flows of the Financing to benefit from Company and its Subsidiaries for the existing lender relationships three most recently completed fiscal years ended at least ninety (90) days before the Closing Date, (2) unaudited consolidated balance sheets and related unaudited statements of Allergan income and cash flows of the Company and its Subsidiaries;
, for each subsequent fiscal quarter (viiiother than the fourth fiscal quarter) providing documents reasonably requested by AbbVie or ended at least forty-five (45) days before the Financing Sources relating to Closing Date, (3) the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of financial information regarding the Company and its Subsidiaries necessary for Parent to prepare any pro forma financial statements for historical periods required by Section 7 of Exhibit C of the Debt Commitment Letters (provided that it is understood that the pro forma adjustments and any assumptions underlying the pro forma adjustments to be repaid or refinanced on made are the Completion Date and the release responsibility of related liens and/or guarantees (if any) effected therebyParent), including customary payoff letters and (to 4) such other financial information and other pertinent information customarily required in connection with a confidential information memorandum or bank presentation in respect of the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtednessDebt Financing, in each case in accordance with customarily used for the terms syndication of the definitive Debt Financing (all such information and documents governing in this Section 6.17(a)(iv), the “Required Financial Information”). If the Company in good faith reasonably believes that it has provided the Required Financial Information, it may deliver to Parent a written notice stating when it believes that it completed such indebtedness (provided that any such notice or payoff letter delivery, in which case the Company will be deemed to have complied with this Section 6.17(a)(iv) and the Marketing Period shall be expressly conditioned on the Completion);
(ix) procuring consents deemed to the reasonable use have commenced as of all of Allergan’s logos in connection with such date unless Parent or the Financing (provided Source in good faith reasonably believe that such logos are used solely in a manner that is the Company has not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or completed delivery of the reputation or goodwill of Allergan or any of its Subsidiaries); Required Financial Information and
(x) providing at least , within three (3) Business Days after the delivery of such notice by the Company, deliver a written notice to the Company to that effect, stating in advance good faith the specific items of Required Financial Information the Company has not delivered, in which case such Required Financial Information shall be deemed to have been delivered and the Marketing Period to have commenced when such specific items have been delivered by the Company;
(v) reasonably facilitating the pledging of collateral on the Closing Date as may be reasonably necessary to permit the consummation of the Completion Date such Debt Financing, delivering notices of prepayment and notices of redemption within the time periods required by the relevant agreements governing indebtedness and obtaining customary payoff letters, Lien terminations and instruments of discharge to be delivered at the Closing, and giving any other necessary notices, to allow for the payoff, discharge and termination in full at the Closing of all indebtedness of the Company or its Subsidiaries required by the Debt Commitment Letters to be paid;
(vi) so long as requested at least ten days prior to the Closing Date, furnishing Parent or any of its Subsidiaries and the Financing Sources with all documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing required by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates regulatory authorities pursuant to applicable “know your customer” and anti-money laundering rules and regulationsregulations at least three Business Days prior to the Closing Date;
(vii) delivery of customary authorization letters that authorize the distribution of the confidential information memorandum to prospective lenders, which letters shall contain customary representations by the Company with respect to the Company and its Subsidiaries, including without limitation(a) a customary “10b-5” representation and (b) a customary representation that the public-side version does not include material non-public information about the Company and its Subsidiaries or their securities; and
(viii) taking all corporate and other actions, the USA PATRIOT ACT. Notwithstanding anything subject to the contrary occurrence of the Closing, reasonably requested by Parent to permit the consummation of the Debt Financing.
(b) Notwithstanding the provisions of Section 6.17(a) or any other provision of this Agreement, nothing in this Section 7.9(a) Agreement will require the Company or Section 7.9(b) below, any of its Subsidiaries to (A) none waive or amend any terms of Allergan this Agreement or agree to pay any fees or reimburse any expenses prior to the Effective Time for which it has not received prior reimbursement or is not otherwise indemnified by or on behalf of Parent or any of its Subsidiaries, (B) enter into any definitive agreement the effectiveness of which is not conditioned on the Effective Time (other than, for the avoidance of doubt, the customary authorization letters described in Section 6.17(a)(vii)) that is effective prior to the Effective Time, (C) give any indemnities that are effective prior to the Effective Time, (D) take any action that, in the good faith determination of the Company, would unreasonably interfere with the conduct of the business of the Company and its Subsidiaries or create an unreasonable risk of damage or destruction to any property or assets of the Company or any of its Subsidiaries, (E) provide any information the disclosure of which is prohibited or restricted under Applicable Law or is legally privileged, or (F) take any action that will conflict with or violate its organizational documents or any Applicable Laws or would result in a violation or breach of, or default under, any agreement to which the Company or any of its Subsidiaries is a party. In addition, no action, liability or obligation of the Company, any of its Subsidiaries or any of their respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument (other than any “authorization letters” referred to above) relating to the Debt Financing will be effective until the Effective Time, and neither the Company nor any of its Subsidiaries shall will be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c))certificate, (ii) execute or deliver any definitive financing documents or any other agreement, certificatearrangement, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur instrument (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be including being an issuer or other obligor with respect to the Financing Debt Financing) that is not contingent on the occurrence of the Closing or that must be effective prior to the Completion, Effective Time. Nothing in this Section 6.17 will require (vi1) commence any Allergan Note Offers and Consent Solicitations officer or (vii) prepare any pro forma financial information or projections, (B) none Representative of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan Company or any of its Subsidiaries to incur deliver any certificate or opinion or take any other action pursuant to Section 6.17 or any other provision of this Agreement that could reasonably be expected to result in personal liability to such officer or Representative, or (iv2) result the members of the Company Board as of immediately prior to the Effective Time to approve any financing or Contracts related thereto.
(c) The Company consents to the use of all of its and its Subsidiaries’ logos in connection with the Debt Financing; provided that such logos are used solely (i) in a material violation manner that is not intended to, and is not likely to harm or breach of, or a default under, any material Contract to which Allergan disparage the Company or any of its Subsidiaries is a partyor the reputation or goodwill of the Company, the Organizational Documents of Allergan or its Subsidiaries and its or any applicable Law. AbbVie shall cause all their respective marks, products, services, offerings or intellectual property rights and (ii) in connection with a description of the Company, its businesses and products or the transactions contemplated by this Agreement.
(d) All non-public or other confidential information provided by or on behalf of Allergan the Company or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to Agreement will be kept confidential in accordance with the Confidentiality Agreement; provided, except that Allergan acknowledges and agrees that the confidentiality undertakings that Parent will be obtained permitted to disclose such information to any Financing Sources or prospective financing sources, ratings agencies and other financial institutions and investors that are or may become parties to the Debt Financing and to any underwriters, initial purchasers or placement agents in connection with syndication the Debt Financing (and, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as if parties thereto and (ii) are subject to other confidentiality undertakings customary for financings of the Financing will be same type as the Debt Financing.
(e) Parent agrees to (i) indemnify, defend and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any loss, damages, claim, cost, liability, obligation or expense (including legal fees and expenses) suffered or incurred in a form customary connection with providing the cooperation and support contemplated by Section 6.17(a) and any information provided in connection therewith except (A) information furnished in writing by or on behalf of the Company and its Subsidiaries for use in therein and (B) to the syndication of acquisition-related debt during a takeover offer period in compliance with extent arising from the requirements willful misconduct, gross negligence, fraud or intentional misrepresentation of the Panel Company or its Subsidiaries and (ii) promptly, upon request of the Takeover RulesCompany, reimburse the Company and its Subsidiaries for all reasonable out-of-pocket costs incurred by the Company or its Subsidiaries in connection with providing the cooperation and support contemplated by Section 6.17(a). The provisions of this Section 6.17(e) shall survive termination of this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Oclaro, Inc.)
Financing Cooperation. (a) Until Prior to the earlier of Effective Time, the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan shall use its reasonable best effortsCompany shall, and shall cause each of its Subsidiaries to use its reasonable best effortsto, and shall use its reasonable best efforts to cause its and their respective officersRepresentatives to, employees furnish Parent and advisors its sources of debt financing (the “Financing Sources”) with all information reasonably necessary for Parent to obtain debt financing on customary terms, and other Representatives, including legal and accounting advisors, to use their reasonable best efforts, to otherwise provide to AbbVie and its Subsidiaries such assistance as may be Parent all cooperation reasonably requested by AbbVie Parent in writing that is customary connection with obtaining debt financing, including by using reasonable best efforts to:
(i) to the extent required in connection with the arrangingdebt financing, obtaining furnish Parent and syndication the Financing Sources with all financial information reasonably necessary for Parent to obtain debt financing on customary terms and update any such information so that it shall remain suitable for such purpose;
(ii) assist Parent with Parent’s preparation of the Financingany marketing materials reasonably necessary to syndicate such debt financing, including using reasonable best efforts with respect to:to obtain consents of accountants for use of their reports in any materials relating to such debt financing and accountants’ comfort letters;
(iiii) participating in and assisting with cause the due diligence, syndication or other marketing management of the FinancingCompany, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan in each case, with appropriate seniority and expertise, to participate, upon reasonable advance notice, in a reasonable and limited number of meetings, presentations, customary one-on-one sessions and road showsshows with prospective sources of debt financing and in rating agency presentations, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related theretosessions, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization lettersas applicable, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financingsuch debt financing;
(iv) causing Allergan’s independent auditors cooperate to provide customary cooperation facilitate the granting of guarantees and security interests in and obtaining perfection of any liens on collateral owned by the Company and its Subsidiaries in connection with such debt financing, including entering into the Financingapplicable definitive agreements with respect thereto so long as such guarantees, security interests and agreements will not take effect until the Effective Time;
(v) obtaining the consents of Allergan’s independent auditors provide to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of prior to the Completion Date such Closing Date, all documentation and other information about Allergan with respect to the Company and its Subsidiaries as is reasonably that are requested in writing by AbbVie at least ten (10) Business Days in advance of prior to the Completion Closing Date in connection with by the Financing that relates to Sources under the applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Notwithstanding anything Act of 2001;
(vi) deliver customary authorization letters that authorize the distribution of any confidential information memorandum to prospective lenders, which letters shall contain customary representations by the Company with respect to the contrary in this Section 7.9(aCompany and its Subsidiaries (including that the public side versions of the applicable documents do not contain material non-public information about the Company or its Subsidiaries (or their respective securities) or Section 7.9(b) belowand containing a “10b-5 representation” by the Company (with respect to information about the Company and its Subsidiaries, and their respective securities, only); provided that such letters of authorization provide that (A) none Company, and each of Allergan its respective Representatives and Affiliates shall not have any liability of any kind or nature resulting from the use of information contained in any marketing material and (B) the recipient of such letters of authorization agrees that it shall be entitled to rely only on the representations and warranties contained in the definitive documentation with respect to the debt financing); and
(vii) review of any disclosure schedule for definitive documents relating to such debt financing related to the Company and its Subsidiaries for completeness and accuracy.
(b) Notwithstanding any provision of this Agreement, nothing in this Agreement will require the Company or any of its Subsidiaries to (i) waive or amend any terms of this Agreement or agree to pay any fees or reimburse any expenses prior to the Effective Time for which it has not received prior reimbursement or is not otherwise indemnified by or on behalf of Parent, (ii) enter into any agreement with respect to such debt financing the effectiveness of which is not conditioned on the Effective Time (other than, for the avoidance of doubt, customary authorization letters) or notices of prepayment and redemption (which notices may be conditional on the consummation of the Merger) that are effective prior to the Effective Time, (iii) give any indemnities that are effective prior to the Effective Time, (iv) take any action that, in the good faith determination of the Company, would unreasonably interfere with the conduct of the business of the Company and its Subsidiaries or create an unreasonable risk of damage or destruction to any property or assets of the Company or any of its Subsidiaries, (v) provide any information the disclosure of which is prohibited or restricted under any applicable law or is legally privileged or (vi) take any action that will conflict with or violate its organizational documents or any applicable law or would result in a violation or breach of, or default under, any agreement to which the Company or any of its Subsidiaries is a party. In addition, no action, liability or obligation of the Company, any of its Subsidiaries or any of their respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument (other than any “authorization letters” referred to above or any notice of prepayment or redemption (which notices may be conditional on the consummation of the Merger)) relating to the debt financing will be effective until the Effective Time, and neither the Company nor any of its Subsidiaries shall will be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c))certificate, (ii) execute or deliver any definitive financing documents or any other agreement, certificatearrangement, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur instrument (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be including being an issuer or other obligor with respect to such debt financing) that is not contingent on the Financing occurrence of the Closing or that must be effective prior to the Completion, Effective Time. Nothing in this Section 5.15 will require (viA) commence any Allergan Note Offers and Consent Solicitations officer or (vii) prepare any pro forma financial information or projections, (B) none Representative of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan Company or any of its Subsidiaries to incur deliver any personal liability certificate or (iv) result in a material violation opinion or breach of, or a default under, take any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan or any of its Subsidiaries or Representatives action pursuant to this Section 7.9 5.15 or any other provision of this 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 Effective Time to approve any financing or Contracts related thereto. Parent acknowledges and agrees that the Company and its Subsidiaries shall not be required to prepare or provide (but, at the request of Parent, shall provide reasonable assistance to Parent and its Representatives so that Parent can cause to be prepared or provided) (1) any pro forma financial statements or pro forma financial information, including pro forma cost savings, synergies, capitalization or other pro forma adjustments desired to be incorporated into any pro forma financial statements or pro forma financial information, (2) any description of all or any component of the debt financing, including any such description to be included in any liquidity or capital resources disclosure, (3) projections, risk factors or other forward-looking statements relating to all or any component of the debt financing, (4) financial statements or any other information of the type required by Rule 3-09, Rule 3-10 or Rule 3-16 of Regulation S-X or (5) Compensation Disclosure and Analysis required by Item 402(b) of Regulation S-K. In no event shall the Company or its Subsidiaries be in breach of this Agreement because of the failure to deliver any financial or other information that is not currently readily available or is not otherwise prepared in the ordinary course of business of the Company and its Subsidiaries at the time requested by Parent.
(c) All confidential, proprietary or non-public information regarding the Company and its Subsidiaries obtained by Parent, its Representatives or the Financing Sources pursuant to this Section 5.15 shall be kept confidential in accordance with the terms of the Confidentiality Agreement; provided, that Allergan acknowledges subject to Section 5.2(b).
(d) Parent shall (i) promptly upon request by the Company, reimburse the Company and agrees that its Subsidiaries for all reasonable and documented out-of-pocket costs and expenses (including attorneys’ fees) incurred by the confidentiality undertakings that will be obtained Company or any of its Subsidiaries in connection with syndication the cooperation provided for in this Section 5.15, and (ii) promptly indemnify and hold harmless the Company and its Subsidiaries and their respective Representatives from and against any and all liabilities, claims, losses, damages, costs, expenses, interest, awards, judgments and penalties (including reasonable and documented attorneys’ fees) actually suffered or incurred by them in connection with the arrangement or consummation of the Financing will be debt financing, except to the extent any such liabilities, claims, losses, damages, costs, expenses, interest, awards, judgments or penalties arise out of or result from fraud, willful misconduct or gross negligence by any of the Company, its Subsidiaries or their respective Representatives, as determined by a final, non-appealable judgment of a court of competent jurisdiction.
(e) Parent and Merger Sub expressly acknowledge and agree that, notwithstanding anything in a form customary for use this Agreement to the contrary, their obligations hereunder, including their obligations to consummate the Merger, are not subject to, or conditioned on, receipt of any financing.
(f) Notwithstanding anything to the contrary in this Agreement, it is expressly understood and agreed by the parties hereto that, except in the syndication case of acquisition-related debt during a takeover offer period Willful and Material Breach that continues after written notice and a reasonable opportunity to cure, the Company and its Subsidiaries’ obligations under this Section 5.15 shall be disregarded for purposes of determining whether the conditions set forth in compliance with the requirements Article VI have been satisfied (including for purposes of the Panel and the Takeover Rulesdetermining any termination rights in Article VII).
Appears in 1 contract
Financing Cooperation. (a) Until Prior to the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9Closing Date, Allergan shall use its reasonable best efforts, and Innkeepers REIT shall cause each of its Subsidiaries to use its reasonable best effortsthe Innkeepers Subsidiaries, and shall use its commercially reasonable best efforts to cause its and their respective officers, employees and advisors and other Representatives, including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie and its Subsidiaries such assistance as may be the Purchaser Parties all cooperation reasonably requested by AbbVie in writing the Purchaser Parties that is customary necessary, proper or advisable in connection with the arrangingDebt Financing and the transactions contemplated by this Agreement, obtaining and syndication of the Financingincluding, including using reasonable best efforts with respect to:
as applicable, (i) participating in meetings, drafting sessions and due diligence sessions, (ii) assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memorandarating agency presentations, bank information memoranda, prospectuses, rating agency presentations memoranda and similar documents required in connection with the Financing (collectivelyDebt Financing, “Marketing Material”) including execution and due diligence sessions related thereto, (C) delivering delivery of customary representation letters reasonably satisfactory in form and consenting substance to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings Innkeepers REIT in connection with bank information memoranda, (iii) as promptly as practical, furnishing the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions Purchaser Parties and disclaimers);
(ii) timely furnishing AbbVie and its their Debt Financing Sources sources with historical financial and other customary information (collectively, regarding Innkeepers REIT and the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Innkeepers Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions by the Purchaser Parties, (iv) using reasonable best efforts to obtain accountants' comfort letters, appraisals, surveys, engineering reports, title insurance and customary comfort letters other documentation and items relating to the Financing;
(iv) causing Allergan’s independent auditors Debt Financing as reasonably requested by the Purchaser Parties and, if requested by the Purchaser Parties, to provide customary cooperation cooperate with and assist the Financing;
Purchaser Parties in obtaining such documentation and items, (v) obtaining using its reasonable best efforts to provide monthly financial statements (excluding footnotes) within the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan time frame, and to references the extent, that Innkeepers REIT customarily prepares such financial statements, (vi) executing and delivering, as of the Merger Effective Time (subject to such independent auditors the Closing occurring), any pledge and security documents or other certificates or documents as experts in any Marketing Material may be reasonably requested by the Purchaser Parties and registration statements and related government filings filed or used otherwise reasonably facilitating the pledging of collateral (including cooperation in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities pay-off of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date Indebtedness and the release of related liens and/or guarantees Liens), (if anyvii) effected therebycooperating in connection with the repayment or defeasance of any Indebtedness of any of the Innkeepers Parties or any of the Innkeepers Subsidiaries as of the Merger Effective Time, including customary payoff letters delivering such pay-off, defeasance or similar notices under any existing mortgage or mezzanine loans of any of the Innkeepers Parties or any of the Innkeepers Subsidiaries as reasonably requested by the Purchaser Parties, (viii) taking all actions reasonably necessary to (A) permit the prospective lenders involved in the Financing to evaluate Innkeepers REIT's current assets, cash management and accounting systems, policies and procedures relating thereto for the purposes of establishing collateral arrangements and (B) establish bank and other accounts and blocked account agreements and lock box arrangements in connection with the foregoing, (ix) using reasonable best efforts to obtain waivers, Consents, estoppels and approvals from other parties to material leases, Encumbrances, Material Contracts (including Franchise Agreement and Management Agreement Documents) and other contracts to which any Innkeepers Party or any Innkeepers Subsidiary is a party and to arrange discussions among the Purchaser Parties and their financing sources with other parties to material leases, Encumbrances, Material Contracts and other contracts; provided, however, no Innkeepers Party shall be required to expend money, assume any liability, commence an litigation or offer or grant any accommodation (financial or otherwise) to any third party to obtain any such waiver, Consent, estoppel or approval, (x) forming new direct or indirect Subsidiaries and causing their Subsidiaries to form, on or prior to the extent requiredClosing, new direct or indirect Subsidiaries and (xi) evidence that notice transferring of any such repayment has been timely delivered certain assets among the Innkeepers Subsidiaries as may be required to accommodate the holders of such indebtednessfinancing structure (provided, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice transfer shall not be effective until the Closing). Purchaser shall, promptly upon request by Innkeepers REIT, reimburse Innkeepers REIT, the Innkeepers Subsidiaries and their Representatives for all reasonable costs incurred by any Innkeepers Party, including fees and expenses of employees and Representatives, in connection with the foregoing cooperation and shall indemnify and hold harmless the Innkeepers Parties and their Affiliates and Representatives for and against any and all losses suffered or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos incurred by them in connection with the Financing Commitments or actions taken in accordance with this Section 5.9(a) and any information utilized in connection therewith (other than information provided by the Innkeepers Parties).
(b) The Purchaser Parties shall use their reasonable best efforts to take, or cause to be taken, all actions necessary or advisable to obtain the Financing on the terms and conditions described in the Financing Commitments (provided, that the Purchaser Parties may replace or amend the Debt Financing Commitments to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Debt Financing Commitments as of the date of this Agreement, or otherwise so long as the terms are not materially less favorable to Purchaser Acquisition Entity, with respect to conditionality or amount, than those in the Debt Financing Commitments as in effect on the date of this Agreement, such logos are used solely in a manner that is not intended to replacement financing, the "Alternative Financing") and is so long as any such replacement or amendment would not reasonably likely be expected to harm delay or disparage Allergan or its Subsidiaries or prevent the reputation or goodwill of Allergan or any of its SubsidiariesClosing); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Notwithstanding anything to the contrary in this Section 7.9(a) or Section 7.9(b) below, (A) none of Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below using reasonable best efforts to (i) pay any commitment maintain in effect the Debt Financing Commitments, negotiate and enter into definitive agreements with respect thereto on the terms and conditions contained therein (including the flex provisions) or on other fee or incur any liability (other than third-party costs terms acceptable to the Purchaser Parties and expenses that are not materially less favorable to be promptly reimbursed by AbbVie upon request by Allergan pursuant to the Purchaser Parties and not in violation of this Section 7.9(c))5.9, (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior satisfy on a timely basis all conditions applicable to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof Purchaser Parties in such definitive agreements that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above)are within its control, (iii) provide access to or disclose information that Allergan or consummate the Debt Financing on the Closing Date substantially concurrently with the Merger Effective Time and (iv) enforce its rights under the Debt Commitment Letters. In the event any portion of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shallthe Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Financing Commitments, and the Purchaser Parties shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information arrange to be disclosed obtain Alternative Financing from alternative sources in an amount sufficient to consummate the transactions contemplated by this Agreement. Notwithstanding the foregoing, it is expressly understood and agreed that Purchaser Parties' obligations to consummate the transactions contemplated hereby are not subject to a manner that would not result in financing condition or contingent upon the loss results of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best Purchaser Parties' efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to obtain the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light full amount of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving effect the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty Closing. Nothing contained in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, shall prohibit the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or Purchaser Parties from adding other confidential information provided by or on behalf of Allergan or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to be kept confidential in accordance with the Confidentiality Agreementequity providers; provided, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained in connection with syndication aggregate amount of the Financing will Equity Commitments shall not be reduced in a form customary for use in any way or be subject to any further conditions and shall be on terms that would not be reasonably likely to delay or prevent the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover RulesClosing.
Appears in 1 contract
Financing Cooperation. (a) Until Prior to the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9Closing Date, Allergan Forest shall use its reasonable best effortsefforts to provide to the Sabine Parties, and shall cause each of its Subsidiaries to use its reasonable best effortsefforts to provide, and shall use its reasonable best efforts to cause its and their respective officers, employees and advisors and other Representatives, including legal legal, accounting and accounting advisorsreserve engineers, to use their reasonable best effortsprovide, to provide to AbbVie and its Subsidiaries such assistance as may be in each case at the Sabine Parties’ sole expense, all cooperation reasonably requested by AbbVie in writing Sabine Holdings that is customary in connection with the arranging, obtaining and syndication of the FinancingRefinancing (including any Debt Offer), including using reasonable best efforts with respect to:
to (i) participating in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) furnish the participation Sabine Parties and their Representatives and Financing Sources, as promptly as reasonably practicable following Sabine Holdings’ request, with such pertinent and customary information (other than financial information, which is covered by members clause (ii) below), regarding the Forest Entities and their assets as may be reasonably requested in writing by Sabine Holdings to consummate any customary offerings of management debt securities, contemplated by the Sabine Parties or any of Allergan with appropriate seniority its Affiliates, including customary information to be used in a reasonable number the preparation of meetingsany offering memorandum, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting furnish the Sabine Parties, their Representatives and the Financing Sources, as promptly as reasonably practicable following Sabine Holdings’ request, with AbbVie’s information (other than financial information, which is covered by clause (ii) below) regarding the Forest Entities and their assets (including information to be used in the preparation of one or more information packages regarding the business, operations, financial projections and prospects of the Forest Entities and its assets) pertinent and customary for the arrangement of loans contemplated by the Sabine Parties or any of their Subsidiaries (the “Bank Financing”), including reserve reports and lease operating statements, to the extent reasonably requested in writing by Sabine Holdings to assist in preparation of customary materials for registration statements, offering documents, private placement memoranda, bank or information memoranda, prospectuses, documents or rating agency or lender presentations relating to such arrangement of loans, (ii) furnish all financial statements (including audited and similar documents required interim financial statements), pro forma financial statements and other financial data and financial information of the Forest Entities that is reasonable and customary in connection with the Financing (collectivelyRefinancing and assisting, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements extent necessary, reasonable and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material Refinancing, in the preparation of pro forma financial statements (the information, financial statements, pro forma financial statements, business and other financial data, reserve reports, lease operating statements and financial information referred to in each case, as applicable, subject to customary confidentiality provisions clauses (i) and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, above shall be referred to herein as the “Financing Requested Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) it being understood that Requested Information shall be of the type that would be and in the form required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to unless otherwise specified by the extent so required Sabine Parties (which audit reports shall not be but subject to any “going concern” qualificationsexceptions customary for Rule 144A offerings), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such participate in a reasonable number of meetings (including customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation one-on-one meetings with the Financing;
(v) obtaining parties acting as lead arrangers, bookrunners or agents for, and prospective lenders and purchasers of, the consents Refinancing and senior management and Representatives, with appropriate seniority and expertise, of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan Forest), presentations, road shows, due diligence sessions, drafting sessions and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used sessions with rating agencies in connection with the Financing;
Refinancing, (viiv) obtaining Allergan’s independent auditors’ customary comfort letters and assistance assist with the accounting due diligence activities preparation of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan materials for rating agency presentations, offering documents, bank information memoranda, and its Subsidiaries;
(viii) providing similar documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos required in connection with the Financing Refinancing, (provided that such logos are used solely v) cause its accountants to provide customary “comfort letters” reasonably requested by Sabine Holdings, (vi) seek to obtain the consent of accountants and any reserve engineers to the use of their reports in a manner that is not intended any material relating to the Refinancing, (vii) take all corporate actions, subject to the occurrence of the Effective Time, reasonably requested by Sabine Holdings to permit the consummation of the Refinancing and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or permit the reputation or goodwill of Allergan proceeds thereof to be made available to the Sabine Parties or any of their Affiliates immediately after the Effective Time, (viii) assist in the amendment or novation of any of Forest’s or its Subsidiaries’ Derivative Transactions, in each case, on terms that are reasonably requested by the Sabine Parties in connection with the Refinancing; provided that no obligation of any Forest Entity under any such amendments or novations shall be effective until the Effective Time, (ix) facilitate the pledging of collateral in support of the Refinancing and provide customary title information and title opinions, in each case, at the sole cost and expense of the Sabine Parties (it being understood that Forest shall provide title information and title opinions in its possession through reasonable means which minimize the costs and expenses); and
, (x) providing at least three (3) Business Days in advance of the Completion Date such provide all documentation and other information about Allergan and its Subsidiaries Forest Entities as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates Sources relating to applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Notwithstanding anything Act and anti-bribery and anti-corruption rules and regulations, (xi) in connection with any Bank Financing or any bridge or loan financing, provide customary authorization letters to the contrary in this Section 7.9(a) Financing Sources authorizing the distribution of information to prospective lenders and containing a customary representation to the Financing Sources that such information does not contain a material misstatement or Section 7.9(b) belowomission and 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 any Forest Entity or their securities, (Axii) none cooperate with the Financing Sources in their efforts to benefit from the existing lending relationships of Allergan nor the Forest Entities, (xiii) cooperate reasonably with the Financing Sources’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of Forest and (xiv) seek to obtain customary payoff letters, lien terminations and releases and instruments of discharge to be delivered at Closing providing for the payoff, discharge and termination on the Closing Date of all indebtedness and release of liens contemplated by the Refinancing to be paid off, discharged and terminated on the Closing Date, including the Existing Forest Credit Agreement; provided, however, that, no obligation of any Forest Entity under any agreement, certificate, document or instrument (other than the authorization letters referred to above) shall be effective until the Effective Time and, no Forest Entity or any of its Subsidiaries their Representatives shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee (except to the extent such Forest Entity or Representative is promptly reimbursed) or incur any other liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective connection with the Refinancing prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b)Effective Time; provided, applicable Allergan Supplemental Indentureshowever, (y) customary officers’ certificates relating to the execution thereof further, that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan no Forest entity or any of its Subsidiaries reasonably determines would jeopardize their respective directors or officers or other personnel shall be required by this Section 6.17 to take any attorney-client privilege action or provide any assistance that unreasonably interferes with the ongoing operations of Allergan the Forest Parties or any of their Subsidiaries. Forest hereby consents to the use of its Subsidiaries (and its Subsidiaries’ logos in connection with the Refinancing; provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed logos are used solely in a manner that would is not result in intended to or reasonably likely to harm or disparage any Forest Entity or the loss reputation or goodwill of any such privilege)Forest Entity. The Sabine Parties shall promptly, upon request by Forest, reimburse Forest for all reasonable out-of-pocket costs and expenses (ivincluding reasonable attorneys’ fees) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, incurred by the Forest Entities in connection with the entry into an Allergan Supplemental Indenture required cooperation of the Forest Entities contemplated by this Section 7.9(b), Allergan shall, 6.17 and shall cause indemnify and hold harmless Forest, its Subsidiaries to, use and their respective reasonable best efforts to cause counsel to Allergan Representatives from and against any and all losses, damages, claims, costs or its Subsidiaries, as applicable, to deliver a customary opinion expenses suffered or incurred by any of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan them in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light the arrangement of the facts Refinancing and circumstances at the time delivered))any information used in connection therewith, (v) be an issuer or other obligor except with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare information provided by any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable LawForest Entities. AbbVie shall cause all All non-public or other otherwise confidential information provided regarding the Forest Entities obtained by or on behalf of Allergan the Sabine Parties or any of its Subsidiaries or their Representatives pursuant to this Section 7.9 to 6.17 shall be kept confidential in accordance with the Confidentiality Agreement; provided that the Sabine Parties shall be permitted to disclose confidential information to potential debt Financing Sources and hedging providers and, in each case, their Representatives without the prior written consent of Forest if such Persons who receive such information are subject to a customary confidentiality agreement with respect thereto. Any action taken by any Forest Party at the specific request of the Sabine Parties in accordance with this Section 6.17(a) shall not be deemed to be a breach of or result in any representation, warranty or covenant set forth in this Agreement.
(b) The Sabine Parties shall use their commercially reasonable efforts to obtain, or cause to be obtained, the proceeds of the Debt Financing on the terms and conditions described in the Commitment Letter and shall comply with their obligations, and enforce their rights, under the Commitment Letter in a timely and diligent manner. In the event that any portion of the Debt Financing becomes unavailable, regardless of the reason therefor, the Sabine Parties will use their commercially reasonable efforts to amend, modify, supplement, alter, restate, substitute or replace the Debt Financing as promptly as practicable following the occurrence of such event, and in any event prior to the End Date, with alternative debt financing (in an amount sufficient, when taken together with remaining portion of the Debt Financing (if any) and with any equity commitment or cash on hand, to consummate the Refinancing) on terms materially no less favorable to the Sabine Parties and the Forest Parties taken as a whole than those set forth in the Commitment Letter with respect to conditions precedent or contingencies to funding. The Sabine Parties shall have the right from time to time to amend, modify, supplement, alter, restate, substitute or replace or waive any of its rights under the Commitment Letter or any associated definitive documentation with respect to the Debt Financing or substitute other debt or equity financing for all or any portion of the Debt Financing from the same or alternative financing sources; provided, that Allergan acknowledges and agrees that (i) the confidentiality undertakings that will amount thereof shall be obtained in connection sufficient, when taken together with syndication remaining portion of the Debt Financing will be in a form customary for use (if any), any other debt, any equity commitment and cash on hand, to consummate the Refinancing and (ii) any such amendment, modification, supplement, alteration, restatement, substitution or replacement or waiver of any rights under the Commitment Letter or any associated definitive documentation shall not expand upon the conditions precedent or contingencies to the funding of the Debt Financing as set forth in the syndication applicable Commitment Letter or associated definitive documentation. For the purposes of acquisition-related debt during this Agreement, the terms “Commitment Letter” and “Financing Commitments” shall be deemed to include any commitment letter (or similar agreement) or commitment with respect to any alternative financing arranged in compliance herewith (and any Commitment Letter and Financing Commitment remaining in effect at the time in question).
(c) The Sabine Parties shall provide the Forest Parties with prompt oral and written notice of (1) any material breach or default by any party to any Commitment Letter or definitive documentation with respect to the Debt Financing (if executed prior to the Closing Date) of which the Sabine Parties becomes aware, (2) the receipt of any written notice or other written communication from any Financing Source with respect to any breach, default, termination or repudiation by any party to any Commitment Letter or definitive documentation with respect to the Debt Financing (if executed prior to the Closing Date) of any provision thereof and (3) any amendment or modification to the Commitment Letter that would reasonably be expected to prevent or materially impede or delay the consummation of the Refinancing or otherwise materially adversely affect the ability or likelihood of the Sabine Parties to timely consummate the Refinancing. The Sabine Parties shall keep the Forest Parties reasonably informed on a takeover offer period reasonably current basis and in reasonable detail of the status of their efforts to consummate the Debt Financing or any alternative financing.
(d) Notwithstanding the foregoing, in no event shall the receipt or availability of any funds or financing (including the Debt Financing) by the Sabine Parties or any Affiliate be a condition to any of the Sabine Parties’ obligations hereunder.
(e) Without limiting any obligation to provide Requested Information (including if previously provided Requested Information has gone stale), if Forest at any time in good faith reasonably believes that it has delivered the Requested Information in compliance with Section 6.17(a) to New Sabine Holdings, it may deliver to the requirements Sabine Parties a written notice to such effect, in which case Forest shall be deemed to have delivered the then applicable Requested Information at the time of delivery of such notice unless the Panel and Sabine Parties shall provide to Forest within five (5) days after the Takeover Rulesdelivery of such notice a written notice that describes with reasonable specificity the information that constitutes Requested Information that the Sabine Parties in good faith reasonably believe Forest has not delivered.
Appears in 1 contract
Samples: Merger Agreement (Forest Oil Corp)
Financing Cooperation. (a) Until During the earlier of period from the Completion and the valid termination date of this Agreement pursuant to the Effective Time, the Company and in accordance with Article 9, Allergan shall use its reasonable best effortsSubsidiaries shall, and shall cause each of its Subsidiaries to use its reasonable best efforts, and the Company shall use its reasonable best efforts to cause its and its Subsidiaries' respective Representatives to, provide to Parent and Merger Sub all cooperation that is reasonably requested by Parent in connection with the arrangement of debt and equity financings (including without limitation, any portion of the contemplated Financing) the proceeds of which shall be used to consummate the Transactions; provided, however, that no such requested cooperation may unreasonably interfere with the ongoing operations of the Company and its Subsidiaries. Such cooperation shall include, without limitation, (i) furnishing Parent, Merger Sub and their respective officers, employees and advisors Financing sources promptly with financial and other Representatives, including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie pertinent information regarding the Company and its Subsidiaries such assistance as may be reasonably requested by AbbVie Parent and identifying any portion of such information that constitutes material non-public information, (ii) in writing that is customary each case, upon reasonable notice and in connection with the arrangingreasonably convenient locations, obtaining making employees and syndication other representatives of the Financing, including using reasonable best efforts with respect to:
Company (i) participating in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority and expertise) available to participate in a reasonable number of meetings, presentations, road showsdue diligence sessions, drafting sessions, due diligence sessions and sessions with prospective lendersfinancing sources, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable noticeagencies in connection with the Financing, (Biii) assisting with AbbVie’s the preparation of customary materials for registration statementsrating agency presentations (and assisting in the obtaining of corporate, offering documents, private placement memorandacredit and facility ratings from ratings agencies), bank information memoranda, prospectuses, rating agency presentations prospectuses and similar documents required all other material to be used in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering including customary authorization letters, and management representation letters, confirmations, ) and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date required in connection with the Financing that relates to applicable “"know your customer” " and anti-money laundering rules and regulations, including U.S.A. Patriot Act of 2001, (iv) using reasonable best efforts to obtain accountant's comfort letters as reasonably requested by Parent, (v) taking all corporate actions, including filing for any required consents or approvals, subject to and only effective upon the occurrence of the Effective Time, required to permit the consummation of the Financing and to permit the proceeds thereof to be made available to the Surviving Corporation immediately after the Effective Time, (vi) providing, as soon as prepared and made available to the Company management team, unaudited consolidated monthly financial statements of the Company (excluding footnotes) consisting of a balance sheet, income statement and statement of cash flows, (vii) filing a Quarterly Report on Form 10-Q within forty-five (45) calendar days after the end of each fiscal quarter end, which shall comply in all material respects with the applicable requirements of the Exchange Act and shall contain the Company's unaudited financial statements, (viii) permitting officers of the Company who will be officers of the Surviving Corporation after the Effective Time to execute and deliver any credit, pledge and security documents, other definitive financing documents, closing documents, including officer's certificates, secretary's certificates, legal opinions, corporate documents or evidence of authorization (but in each case, not effective prior to the Effective Time) as may be reasonably requested by Parent (including delivery of borrowing base certificates and a certificate of the chief financial officer of the Company with respect to solvency matters and using reasonable best efforts to obtain consents of accountants to use their reports in any materials relating to the Debt Financing) and otherwise reasonably facilitating the pledging of collateral, including without limitation, by taking all necessary action to facilitate the USA PATRIOT ACT. Notwithstanding anything elimination of any Lien on any of the properties or assets of the Company or any of its Subsidiaries, other than Permitted Exceptions, (ix) using commercially reasonable efforts to assist in delivery of inventory appraisals and field audits and obtaining of surveys and title insurance, all as reasonably requested by Parent and customary for financings similar to the contrary Debt Financing, and otherwise cooperating reasonably with the Debt Financing sources' due diligence, (x) providing customary authorization letters to the Debt Financing sources authorizing the distribution of information to prospective lenders and containing customary representations to the Debt Financing sources that such information does not contain a material misstatement or omission and that the public side versions of such information, if any, do not include material non-public information about the Company or its Subsidiaries or their securities, and (xi) otherwise taking reasonable actions within its control to cooperate in this Section 7.9(a) satisfying the conditions precedent set forth in the Debt Commitment Letter or Section 7.9(b) belowany definitive document related to the Financing; provided, however, that (A) no obligation of the Company or any of its Subsidiaries under any certificate, agreement, notice or other document or instrument shall be effective until the Effective Time, and none of Allergan nor the Company or any of its Subsidiaries shall be required to take pay or permit the taking of incur any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay liability for any commitment or other fee similar fee, pay or incur any liability for any expense (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (iias provided in this Agreement) execute or deliver any definitive financing documents or incur any other agreement, certificate, document obligation or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, liability in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers Effective Time unless promptly reimbursed by Parent and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of neither the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan Company nor any of its Subsidiaries Subsidiaries, nor any of their respective directors or officers, shall be required to take or permit the taking of any action that would to authorize or approve the Financing (i) interfere unreasonably or any Alternative Debt Financing), except at or contemporaneously with the business or operations Effective Time.
(b) The Company hereby consents to the use of Allergan or its and its Subsidiaries' trademarks, (ii) cause any representation service marks or warranty logos in this Agreement to be breached by Allergan connection with the Debt Financing; provided that such trademarks, service marks or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result logos are used in a material violation manner that is not intended to or breach of, reasonably likely to harm or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, disparage the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan Company or any of its Subsidiaries or the reputation or goodwill of the Company or any of its Subsidiaries or any of their respective Intellectual Property Rights, and provided that the Company shall be permitted to review the use of such logos prior to usage in connection with the Debt Financing.
(c) If the Closing does not occur and this Agreement is terminated pursuant to Article VI, Parent shall promptly upon written request by the Company (and in any event no later than five (5) Business Days following written request by the Company) reimburse the Company for all of its documented reasonable out-of-pocket costs and expenses (including reasonable attorneys' fees) incurred by the Company, its Subsidiaries and their respective Representatives in connection with any cooperation expressly required by or requested in accordance with this Section 4.14. Parent and Merger Sub shall indemnify and hold harmless the Company, its Affiliates and their respective Representatives for and against any and all liabilities, losses, damages, claims, reasonable costs and expenses, interest, awards, judgments and penalties suffered or incurred by them in connection with the arrangement of the Financing (other than arising from (x) fraud, gross negligence, willful misconduct or intentional misrepresentation by the Company or any Company Subsidiary or (y) misstatements or omissions in written historical information of the type prepared by the Company and its Subsidiaries in the ordinary course of business that is provided by the Company or any of its Subsidiary specifically for use in connection with the Debt Financing) to the fullest extent permitted by applicable Law. Notwithstanding anything herein to the contrary, (A) the maximum aggregate liability of Parent and Merger Sub pursuant to this Section 7.9 to 4.14(c) shall be kept confidential in accordance with $2,500,000, (B) the Confidentiality Agreement; provided, that Allergan acknowledges and agrees Company shall notify Parent reasonably promptly if it appears that the confidentiality undertakings aggregate liability of Parent and Merger Sub pursuant to this Section 4.14(c) is approaching such maximum amount, and (C) the Company shall have no obligation pursuant to Section 4.14 to incur any out-of-pocket costs and expenses or take any action that will be obtained in connection with syndication of the Financing will be in a form customary for use would result in the syndication incurrence of acquisitionsuch out-related debt during a takeover offer period of-pocket costs and expenses in compliance with the requirements excess of the Panel and the Takeover Rulessuch maximum amount.
Appears in 1 contract
Financing Cooperation. (a) Until the earlier of the Completion and the valid termination For purposes of this Agreement pursuant Section 6.18, the term “Financing” shall include any Permanent Financing (as defined in the Financing Letter), whether for debt, equity or otherwise. Prior to and in accordance with Article 9the Closing, Allergan shall use its reasonable best effortsSeller shall, and shall cause each of its Subsidiaries to use its reasonable best effortsthe Company to, and the Company shall use its reasonable best efforts to cause its and their respective officers, employees directors accountants, attorneys, agents and advisors and other representatives (collectively, the “Representatives”) to, including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie and its Subsidiaries Purchaser such assistance as may be cooperation reasonably requested by AbbVie in writing that is customary Purchaser in connection with the arranging, obtaining and syndication of Financing or the Alternate Financing, including using reasonable best efforts with respect to:(to the extent reasonably requested and reasonably required):
(i) participating in a customary and assisting reasonable number of meetings (including customary one-on-one meetings or conference calls with the due diligenceparties acting as lead arrangers, syndication underwriters, initial purchasers or other marketing of agents for, and prospective lenders and purchasers of, the FinancingFinancing and senior management and representatives, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number and expertise, of meetingsthe Company), presentations, road showsdue diligence sessions, drafting sessions, due diligence sessions road shows and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, ;
(Bii) assisting with AbbVie’s the preparation of customary materials for registration statementsrating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectuseslender and investor presentations, rating agency presentations registration statements, prospectuses (registered or otherwise) and similar documents required and materials for the Financing, including execution and delivery of customary representation letters in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing an audit of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization lettersCompany, management representation letters, confirmationsauditors comfort letter, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers)bank information memoranda;
(iiiii) timely furnishing AbbVie Purchaser and its Financing Sources with historical financial and other customary information (collectively, regarding the “Financing Information”) with respect to Allergan and its Subsidiaries Company as is may be reasonably requested by AbbVie or its Financing Sources and customarily required Purchaser (including in Marketing Material for Financings connection with Purchaser’s preparation of the applicable typepro forma financial statements), including all Historical Financial Statements including, without limitation, unaudited interim financial statements, financial data, projections, audit reports and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie for a registered public offering, and registered on Form S-3 of type and form customarily included in private placements under Rule 144A under the Securities Act, to consummate the offering(s) of debt or equity securities contemplated by the Financing, or as otherwise reasonably required in connection with the Financing, or as otherwise necessary in order to assist in receiving customary “comfort” (including audit reports “negative assurance” comfort) from independent accountants in connection with the offering(s) of annual financial statements debt or equity securities contemplated by the Financing, and reasonable and customary authorization letters to the extent so required Financing Sources authorizing the distribution of information to prospective lenders and investors and containing customary information (which audit reports shall not be subject to any “going concern” qualificationsall such information in this clause (iii), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type“Required Information”);
(iiiiv) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan the Company that is reasonably available to it to assist Purchaser in the preparation of, and its Subsidiaries executing and delivering, any credit agreement, indentures, underwriting agreements, purchase agreements, currency or interest hedging arrangements, other definitive financing documents, officer’s certificates, customary closing documents, or other certificates or documents with respect to the Financing contemplated by the Financing as may be reasonably requested by Purchaser (including customary consents of accountants for use of their reports in connection with their delivery of any customary negative assurance opinions and customary comfort letters materials relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing);
(v) obtaining the consents of Allergan’s independent auditors furnishing Purchaser and its Financing Sources as promptly as practicable all financial information required to use their audit reports on the audited Historical Financial Statements of Allergan and be delivered pursuant to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing Letter and monthly financial statements for the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and Company (to the extent required) evidence that notice prepared in the ordinary course of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiariesbusiness); and
(xvi) providing at least three (3) Business Days in advance taking all corporate actions, contingent upon the occurrence of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is Closing, reasonably requested in writing by AbbVie at least ten (10) Business Days in advance Purchaser that are necessary or customary to permit the consummation of the Completion Date Financing; provided, that (A) nothing herein shall require such cooperation to the extent it would require Seller or any of its affiliates to waive or amend any terms of this Agreement, incur any liabilities, pay any fees, reimburse any expenses, in connection each case, with respect to the Financing, prior to the Closing for which it has not received prior reimbursement by or on behalf of Purchaser, or would cause Seller or any of its affiliates (including the Company) to breach this Agreement or become unable to satisfy a condition to the Closing, (B) nothing herein shall require such cooperation from Seller or its affiliates to the extent it would unreasonably interfere with the Financing that relates ongoing operations of Seller or its affiliates and (C) there shall be no action, liability or obligation of Seller or its affiliates (including the Company, except for any actions, liabilities or obligations required or effective only after the Closing which do not require obtaining prior to applicable “know your customer” and anti-money laundering rules and regulationsClosing approvals by any Regulatory Entity) under any certificate, including without limitationagreement, arrangement, document or instrument relating to the USA PATRIOT ACTFinancing. Notwithstanding anything to the contrary in this Section 7.9(a) or Section 7.9(b) below6.18, (A) none of Allergan neither Seller nor any of its Subsidiaries affiliates (including the Company) shall be required in breach of the covenant set forth in this Section 6.18 if it has acted in good faith to take or permit comply with the taking cooperation and assistance set forth herein.
(b) Purchaser shall indemnify each of the Seller’s Indemnified Persons from, against and in respect of any action pursuant to this Section 7.9(a) Losses imposed on, sustained, incurred or Section 7.9(b) below to (i) pay suffered by, or asserted against, any commitment of them, directly or other fee indirectly relating to, arising out of or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c))resulting from the arrangement of the Financing, (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification financing and/or the provision of any existing agreement, certificate, document or instrument, information utilized in each case that would be effective prior connection therewith to the Completion Date or would be effective if fullest extent permitted by applicable Law, which obligation shall continue after the Completion does not occur (Closing Date, except (x) to the extent required such Losses arise from circumstances in which such Seller’s Indemnified Person is finally determined by a court of competent jurisdiction to willingly and knowingly have committed fraud with specific intent to deceive.
(c) Seller will use its reasonable best efforts to update Required Information provided to Purchaser pursuant to clauses (iii) and (iv) of Section 7.9(b)6.18(a) as may be necessary such that the Required Information does not contain any untrue statement of material fact or omit to state any material fact necessary in order to make the statements contained therein, applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above)under which they were made, (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained in connection with syndication of the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover Rulesmisleading.
Appears in 1 contract
Financing Cooperation. (a) Until Subject to Section 6.11(a), prior to the earlier Acceptance Time with respect to the financing of the Completion Offer, and the valid termination Effective Time with respect to the financing of this Agreement pursuant to and in accordance with Article 9the Merger, Allergan shall use its reasonable best effortsthe Company shall, and shall cause each of its Subsidiaries to use its reasonable best effortssubsidiaries to, and shall use its reasonable best efforts to cause its and their respective officersRepresentatives to, employees and advisors and other Representativesin each case at Parent’s sole expense, including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie Parent and its Subsidiaries such assistance as may be reasonably Acquisition Sub all cooperation requested by AbbVie in writing Parent that is customary reasonably necessary, proper or advisable in connection with the arrangingFinancing (for purposes of this Section 6.12, obtaining and syndication to include the issuance of senior notes contemplated by the Debt Commitment Letters) or any permitted amended or modified or replacement financing (collectively with the Financing, the “Available Financing”) and the transactions contemplated by this Agreement (provided that such requested cooperation does not interfere unreasonably with the business or operations of the Company and its subsidiaries), including using reasonable best efforts with respect to:
(i) participating in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions), drafting sessions and sessions with meetings with, and presentations to, prospective lenders, lenders and investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, ; (Bii) assisting with AbbVie’s the preparation of customary materials for registration statementsrating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations prospectuses and similar documents required in connection with the Financing (collectivelyAvailable Financing, “Marketing Material”) including execution and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing delivery of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings letters in connection with the Marketing Material therewith; (in each caseiii) as promptly as practical after Parent’s request, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie Parent and its Available Financing Sources sources with historical financial and other customary information (collectively, regarding the “Financing Information”) with respect to Allergan Company and its Subsidiaries subsidiaries as is may be reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable typeParent, including all Historical Financial Statements financial statements, pro forma financial information, financial data, audit reports and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered to be included in a registration statement on Form S-3 S-1 (or any applicable successor form) under the Securities ActAct for a public offering or offerings of debt securities or as otherwise contemplated by the Debt Commitment Letters and any other Available Financing, assuming that such offering(s) were consummated at the same time during the Company’s fiscal year as the offering(s) of debt securities contemplated by the Debt Commitment Letters, or as otherwise required in connection with the Available Financing and the transactions contemplated by this Agreement, or as otherwise necessary in order to receive customary “comfort” (including audit reports “negative assurance” comfort) from independent accountants in connection with the offering(s) of annual financial statements debt securities contemplated by the Debt Commitment Letters and any other Available Financing (all such information in this clause (iii), the “Required Information”); (iv) using reasonable best efforts to obtain accountants’ comfort letters, legal opinions, appraisals, surveys, engineering reports, title insurance and other documentation and items relating to the extent so required Available Financing as reasonably requested by Parent or Acquisition Sub and, if requested by Parent or Acquisition Sub, to cooperate with and assist Parent or Acquisition Sub in obtaining such documentation and items; (which audit reports shall not be subject to v) executing and delivering, as of the Effective Time, any “going concern” qualifications)pledge and security documents, other definitive financing documents, or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary other certificates, mortgages, documents and other customary information instruments relating to Allergan and its Subsidiaries guarantees, or documents as may be reasonably requested by Parent (including a certificate of the Chief Financial Officer of the Company or any subsidiary with respect to solvency matters and consents of accountants for use of their reports in connection with their delivery of any customary negative assurance opinions and customary comfort letters materials relating to the Available Financing;
) and otherwise facilitating the pledging of collateral and providing of guarantees contemplated by the Debt Commitment Letters and any other Available Financing (iv) causing Allergan’s independent auditors to provide customary including cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities pay-off of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees Liens); (if anyvi) effected therebytaking all actions necessary to (A) permit the prospective persons involved in the Available Financing to evaluate the Company, including customary payoff letters the Company’s current assets, cash management and accounting systems, policies and procedures relating thereto for the purposes of establishing collateral arrangements and (B) establish bank and other accounts, blocked account agreements and lock box arrangements in connection with the foregoing; (vii) using reasonable best efforts to obtain waivers, consents, estoppels and approvals from other parties to material leases, encumbrances and contracts to which any subsidiary of the Company is a party and to arrange discussions among Parent, Acquisition Sub and their financing sources with other parties to material leases, encumbrances and contracts; and (viii) facilitating the consummation of the Available Financing and to permit the proceeds thereof, together with the cash at the Company and its subsidiaries, to be made available to the Company to consummate the Offer and the Merger; provided, however, that notwithstanding the foregoing, no obligations of the Company, its subsidiaries or their Representatives under any such agreement, certificate, document or instrument shall be effective until the Effective Time; provided further, that nothing herein shall require such cooperation to the extent required) evidence it would interfere unreasonably with the business or operations of the Company or its subsidiaries; and provided further, that notice neither the Company nor any of its subsidiaries shall be required to pay any commitment fee or other fee or payment to obtain consent or to incur any liability with respect to the Debt Financing prior to the Effective Time. The Company will update any such repayment has been timely delivered Required Information in order to ensure that such Required Information does not contain any untrue statement of material fact or omit to state any material fact necessary in order to make the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring statements contained therein not misleading. The Company hereby consents to the reasonable use of all of Allergan’s its and its subsidiaries’ logos in connection with the Financing (Available Financing; provided that such logos are used solely in a manner that is not intended to and is not nor reasonably likely to harm or disparage Allergan the Company or its Subsidiaries subsidiaries or the reputation or goodwill of Allergan the Company or its subsidiaries. Parent shall reimburse the Company for any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation out-of-pocket costs and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date expenses incurred in connection with the Financing that relates to applicable “know your customer” and anti-money laundering rules and regulationsCompany’s, including without limitation, the USA PATRIOT ACT. Notwithstanding anything to the contrary in this Section 7.9(a) or Section 7.9(b) below, (A) none of Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officerssubsidiaries’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee Representatives’ obligations under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained in connection with syndication of the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover Rules6.12.
Appears in 1 contract
Financing Cooperation. (a) Until Prior to the earlier of Closing or the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 97, Allergan the Equityholders shall use its reasonable best effortscause the Acquired Companies, and the Acquired Companies shall cause each of its the Subsidiaries to use its reasonable best effortsto, at the Buyer’s sole cost and shall use its reasonable best efforts to cause its and their respective officersexpense, employees and advisors and other Representatives, including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie the Buyer such cooperation reasonably requested (including with respect to timeliness) by the Buyer in connection with any existing or future financing sought by the Buyer in connection with the Buyer’s acquisition of the Units (such financing, whether debt or equity, “Financing”), including: (i) executing and its Subsidiaries such assistance delivering into escrow any credit agreement, joinder, pledge and security documents, currency or interest hedging arrangements, other definitive financing documents, other certificates or documents with respect to the Financing as may be reasonably requested by AbbVie in writing that is customary in connection with the arrangingBuyer, obtaining and syndication (ii) reasonably facilitating the pledging of the Financingcollateral, including using commercially reasonable best efforts with respect to:
(i) participating in to cause directors, officers, employees, counsel, auditors and assisting with the due diligence, syndication or other marketing representatives of the Financing, including using reasonable best efforts with respect Company Group to (A) the participation by members of management of Allergan with appropriate seniority participate in a reasonable number of meetings, presentations, road shows, drafting sessions, presentations and due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable noticesessions, (B) assisting furnish the Buyer and the potential Financing Parties with AbbViecustomary financial information of the Company Group and any other customary pertinent information regarding the Company Group, in each case, to the extent in the possession of the Equityholders or the Company Group, as may be reasonably requested by the Buyer to consummate such Financing, (C) reasonably assist the Buyer and the Financing Parties in Buyer’s preparation of business projections, pro forma financial information, bank and investor information, memoranda and other customary materials for registration statementsany portion of the Financing, offering documents(D) agree to pledge, private placement memorandagrant security interests in, bank information memorandaand otherwise grant Liens on, prospectuses, rating agency presentations and similar documents required the Company Group’s assets pursuant to such agreements as may be reasonably requested (including cooperation in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing payoff of existing Indebtedness of the historical audited consolidated financial statements Company Group and unaudited consolidated interim financial statements the release of Allergan included or incorporated by reference into related Liens, obtaining landlord waivers, facilitating deposit account control agreements and assisting with disclosure schedules) to facilitate the Allergan SEC Documents satisfaction on a timely basis of all conditions to obtaining the Financing; (the “Historical Financial Statements”E) and (D) delivering provide all customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial documentation and other customary information (collectively, about the “Financing Information”) with respect to Allergan and its Subsidiaries Company Group as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings the Buyer on behalf of the applicable type, including all Historical Financial Statements and other customary information sources of Financing with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, and (F) provide all such other reasonable and customary assistance as necessary to satisfy the USA PATRIOT ACT. Notwithstanding anything conditions to the contrary in Financing; provided, however, that (i) nothing herein shall require such cooperation to the extent it would require the Equityholders or any member of the Company Group to waive or amend any material terms of this Section 7.9(aAgreement or to agree to pay any fees, reimburse any expenses or give any indemnities prior to the Closing for which it has not received prior reimbursement by or on behalf of the Buyer, or to give any indemnities or incur any Liabilities other than reimbursements and Liabilities of the Company Group that are effective only after the Closing; (ii) no action, Liability or Section 7.9(bobligation of the members of the Company Group under any certificate, agreement, arrangement, document or instrument relating to the Financing shall be effective until after the Closing; and (iii) below, (A) none of Allergan neither the Acquired Companies nor any of its the Subsidiaries shall be required to take or permit issue any offering documents, private placement memoranda, bank information memoranda, prospectuses and similar documents required in relation to the taking Financing, but such documents may contain disclosure and financial statements reflecting the Acquired Companies as obligors following the Closing.
(b) The Buyer shall indemnify the Acquired Companies, the Sellers and each of their respective Affiliates and their respective directors, officers, members, partners, members and employees and their heirs, successors and permitted assigns, each in their capacity as such, from, against and in respect of any action Damages imposed on, sustained, incurred or suffered by, or asserted against, any of them, whether in respect of third-party claims, direct claims or otherwise, directly or indirectly relating to, arising out of or resulting from the arrangement of the Financing, any other financing or the provision of information utilized in connection therewith to the fullest extent permitted by Applicable Law, and the foregoing obligations shall survive termination of this Agreement; provided, that, the Buyer shall have no indemnification obligation pursuant to this Section 7.9(a5.8(c) for any Damages caused by or incurred as a result of any misstatement or omission by the Acquired Companies, the Sellers or any of their respective Affiliates or their respective directors, officers, members, partners, members or employees.
(c) In no event shall the Equityholders, the Company Group or any of their Affiliates be in breach of this Section 7.9(b) below 5.8 because of the failure by the Acquired Companies or any Subsidiary to (i) pay deliver any commitment financial or other fee or incur any liability (other than third-party costs and expenses information that are is not currently readily available to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents the Acquired Companies or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to Subsidiary on the Completion Effective Date or would be effective if is not otherwise prepared in the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light ordinary course of the facts and circumstances its business at the time delivered and (z) requested by the authorization letter and management representation letters delivered pursuant Buyer or for failure to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or obtain any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss review of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer financial or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of by its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained in connection with syndication of the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover Rulesaccountants.
Appears in 1 contract
Samples: Securities Purchase Agreement (Hydrofarm Holdings Group, Inc.)
Financing Cooperation. (a) Until the earlier to occur of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article Section 9, Allergan the Company shall use its reasonable best efforts, and shall cause each of its Subsidiaries to use its reasonable best efforts, and shall use its reasonable best efforts to cause its and their respective officers, employees and advisors and other Representatives, including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie Parent and its Subsidiaries such assistance as may be reasonably requested by AbbVie Parent in writing that is customary in connection with the offering, arranging, obtaining and syndication obtaining, syndication, consummation, issuance or sale of the Financing, including using reasonable best efforts with respect to:
(i) participating in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan the Company with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan the Company and upon reasonable notice, (B) assisting with AbbVieParent’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations presentations, syndication documents and other syndication materials, including information memoranda, lender and investor presentations, bank books and other marketing documents and similar documents required in connection with any portion of the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan the Company included or incorporated by reference into the Allergan Company SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie Parent and its Financing Sources with existing historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan the Company and its Subsidiaries as is reasonably requested by AbbVie Parent or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan the Company and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie Parent and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications)required, or (B) reasonably necessary to permit AbbVie Parent to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVieParent’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan the Company and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing AllerganFinancing and use reasonable best efforts to cause the Company’s independent auditors to provide customary cooperation with the respect to the Financing, including by using reasonable best efforts to cause the Company’s independent auditors to provide customary comfort letters (including “negative assurance” comfort, if customary and appropriate) in connection with any capital markets transaction comprising a part of the Financing or contemplated as part of any refinancing of the Financing, including at the time of pricing and closing, to the applicable Financing Sources, and by providing customary representation letters to the extent required by such independent auditor in connection with the foregoing;
(viv) obtaining the consents of Allerganthe Company’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan the Company and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(viv) obtaining Allerganthe Company’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources, including by participating in a reasonable number of diligence sessions;
(vi) provide customary authorization letters authorizing the distribution of information related to the Company and its Subsidiaries to prospective lenders in connection with a syndicated bank financing;
(vii) causing assist the Financing to benefit from Parent Parties in obtaining or updating the existing lender relationships of Allergan Parent Parties’ corporate and its Subsidiariesfacility credit ratings;
(viii) assist the Parent Parties in the negotiation of and co-operate with the Parent Parties’ preparation of any credit agreement, indenture, note, purchase agreement, underwriting agreement, and such other customary closing certificates and schedules as may be reasonably requested by Xxxxxx, in each case as contemplated in connection with the Financing;
(ix) cooperate with internal and external counsel of Parent in connection with providing customary back-up certificates and factual information regarding any legal opinion that such counsel may be required to deliver in connection with the Financing;
(x) providing documents reasonably requested by AbbVie Parent or the Financing Sources relating to the repayment or refinancing of any indebtedness Indebtedness for borrowed money of Allergan the Company or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtednessIndebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness Indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ixxi) procuring consents to the reasonable use of all of Allerganthe Company’s and its Subsidiaries’ logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan the Company or its Subsidiaries or the reputation or goodwill of Allergan the Company or any of its Subsidiaries); and
(xxii) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan the Company and its Subsidiaries as is reasonably requested in writing by AbbVie Parent at least ten (10) 10 Business Days in advance of the Completion Date in connection with the Financing that relates to applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT, and, to the extent required by any Financing Source, a beneficial ownership certificate (substantially similar in form and substance to the form of Certification Regarding Beneficial Owners of Legal Entity Customers published jointly, in May 2018, by the Loan Syndications and Trading Association and Securities Industry and Financial Markets Association) in respect of any of the Company or any of its Subsidiaries that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation (31 C.F.R. § 1010.230). In addition, in connection with any marketing efforts of the Parent Parties’ Financing, the Parent may reasonably request 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 any member of the Company Group, which Parent, in consultation with the Financing Sources and upon the advice of outside counsel, reasonably determines is necessary to include in a registration statement, customary offering memorandum or other offering document for the Financing (each an “Offering Document”) in order to (i) correct any untrue statement of a material fact or an omission of a material fact necessary in order to make the statements therein not misleading or (ii) to cause such Offering Document to comply with the requirements of the Securities Act. The Company shall consider such request promptly, and if the Company approves of such request (such approval not be unreasonably withheld), then the Company shall promptly file such Current Report on Form 8-K in a form reasonably satisfactory to the Company. Notwithstanding anything to the contrary in this Section 7.9(a) 7.8, the Company shall not be obligated to effect any such filing of a Current Report on Form 8-K pursuant to this this Section 7.8 if in the good faith judgment of the Company Board it would be detrimental to the Company and its shareholders for such Current Report on Form 8-K to be filed at such time or Section 7.9(b) belowin the near future, in which case the Company shall not be obligated to file such Current Report on Form 8-K. Notwithstanding anything to the contrary herein, (A) none no member of Allergan nor any of its Subsidiaries the Company Group shall be required to take or to permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below 7.8 to (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie Parent upon request by Allergan the Company pursuant to Section 7.9(c7.8(c)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b7.8(b), applicable Allergan Company Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan the Company or any of its Subsidiaries reasonably determines would jeopardize result in a loss of any attorney-client privilege of Allergan the Company or any of its Subsidiaries (provided that Allergan the Company shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered))opinions, (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Company Note Offers and Consent Solicitations that are not conditional on Completion occurring or (vii) prepare any pro forma financial statements information or projections(other than the Financing Information) that are not available to it and prepared in the ordinary course of its financial reporting practice, (B) none of the Allergan Company Board, officers of Allerganthe Company, or directors and officers of the Subsidiaries of Allergan the Company shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan the Company Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures)consummated, and (C) neither Allergan the Company nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan the Company or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan the Company or any of its Subsidiaries (unless waived by AbbVieParent), (iii) cause any director, officer or employee or shareholder of Allergan the Company or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan the Company or any of its Subsidiaries is a party, the Organizational Documents of Allergan the Company or its Subsidiaries or any material applicable Law. AbbVie Parent shall cause all non-public or other confidential information provided by or on behalf of Allergan the Company or any of its Subsidiaries or Representatives pursuant to this Section 7.9 7.8 to be kept confidential in accordance with the Confidentiality Agreement; provided, provided that Allergan the Company acknowledges and agrees that the confidentiality undertakings that will be obtained in connection with syndication of the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Irish Takeover Panel and the Takeover Rules.
Appears in 1 contract
Samples: Transaction Agreement (Amgen Inc)
Financing Cooperation. (a) Until Prior to the earlier Effective Time, each of the Completion Company and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan shall use its reasonable best effortsParent shall, and shall cause each of its Subsidiaries to use its reasonable best effortsto, and shall use its reasonable best efforts to cause its and their respective officersRepresentatives to, employees and advisors and on a timely basis, upon the reasonable request of the other Representativesparty, including legal and accounting advisors, to use their provide reasonable best efforts, to provide to AbbVie and its Subsidiaries such assistance as may be reasonably requested by AbbVie in writing cooperation that is customary in connection with the arrangingarrangement, obtaining marketing, syndication and syndication consummation of the Financing or any other financing that Parent or any of its Subsidiaries or the Company or any of its Subsidiaries may pursue to the extent permitted by this Agreement (the Financing or any such financing, a “Permitted Financing”), including using reasonable best efforts with respect tothe following:
(i) participating furnishing, or causing to be furnished, audited and unaudited financial statements, delivering customary information included in and assisting offering memoranda or prospectuses in connection with the due diligence, syndication or any Permitted Financing (other marketing than portions customarily provided by financing sources) that is customary for an offering of securities of the type that may be offered in any Permitted Financing, including ;
(ii) providing reasonable assistance for the preparation of pro forma financial information and projections required to consummate any Permitted Financing or to comply with applicable Law;
(iii) using reasonable best efforts to secure the consent of the independent accountants related to the financial statements described in this Section 5.19;
(iv) requesting that the Company’s or Parent’s independent accountants, as applicable, reasonably participate in drafting sessions and accounting due diligence sessions in connection with any Permitted Financing, including requesting that they provide customary comfort letters (including “negative assurance” comfort) with respect to financial information related thereto, to the extent required in connection with the marketing and syndication of any such Permitted Financing or as are customarily required in an underwritten offering of securities;
(Av) providing reasonable assistance in the participation by members preparation of customary rating agency presentations, road show materials, customary bank or co-investor information memoranda, prospectuses, bank syndication materials, offering memoranda, private placement memoranda, definitive financing documents (as well as customary certificates) and similar or related documents customarily prepared in connection with any Permitted Financing;
(vi) reasonably cooperating with customary marketing efforts for any Permitted Financing and any syndication, including causing its management of Allergan team, with appropriate seniority and expertise, and external auditors and advisors, to assist in preparation for and to participate in a reasonable number of meetings, presentations, road shows, due diligence sessions, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions upon reasonable notice and disclaimers);
(ii) timely furnishing AbbVie at mutually agreeable dates and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sourcestimes;
(vii) causing the Financing using reasonable best efforts to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating deliver to the repayment or refinancing of other party any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date materials and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to required under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Notwithstanding anything laws;
(viii) to the contrary extent Parent or the Company will become a party to any definitive agreement in this Section 7.9(arespect of any Permitted Financing, providing (including using reasonable best efforts to obtain such documents from its advisors) customary certificates, corporate authorizations and other customary closing documents and definitive agreements as may be reasonably requested;
(ix) informing the other party that if previously issued financial statements included or Section 7.9(bintended to be used in connection with any Permitted Financing should no longer be relied upon or that a restatement is required or reasonably likely; and
(x) below, reasonably cooperating with the other party in connection with (A) none efforts to obtain customary corporate ratings; (B) assisting in obtaining opinions of Allergan counsel; (C) providing customary authorization letters to the financing sources; (D) providing customary authorizations for the use of trademarks, service marks and logos; (E) providing access to documents and other information reasonably requested in connection with continuing due diligence investigations; and (F) if reasonably requested, the payoff of existing indebtedness, whether in the form of a tender offer, change of control offer, redemption, satisfaction and discharge, consent solicitation, or otherwise; provided that (1) neither the Company nor Parent shall be required to pay the other party’s commitment or other similar fee in connection with any Permitted Financing, (2) the effectiveness of any documentation executed by the Company or Parent, with respect thereto, the attachment of any Lien to any assets of the Company or any of its Subsidiaries or Parent or any of its Subsidiaries, as applicable, or any payoff of existing indebtedness shall be subject to the consummation of the Merger, and (3) no director or officer of the Company or Parent shall be required to take or permit the taking of execute any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree instrument with respect to any change to or modification of any existing agreement, certificate, document or instrument, in each case Permitted Financing that would be effective prior to the Completion Date or would be effective if the Completion does not occur Closing (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light other than certifications of the facts and circumstances at the time delivered and financial statements).
(zb) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all All non-public or other confidential information provided by or on behalf of Allergan or any of its Subsidiaries or Representatives shared pursuant to this Section 7.9 to 5.19 shall be kept confidential in accordance with the Confidentiality Agreement; provided that such information may be shared (i) on a confidential basis with prospective lenders and investors during syndication and marketing of any Permitted Financing in connection therewith and participants in such Permitted Financing, in each case that enter into confidentiality arrangements customary for financing transactions of the same type as such Permitted Financing (including with respect to investors, customary “click-through” confidentiality undertakings), and (ii) on a confidential basis with rating agencies; provided, that Allergan acknowledges and agrees further, that the confidentiality undertakings that will be obtained foregoing shall not prohibit such information from being included in bank or co-investor information memoranda, prospectuses, bank syndication materials, offering memoranda and private placement memoranda (including under Rule 144A or a registered offering under the Securities Act). The Company hereby consents to the reasonable use of the Company’s and any of its Subsidiary’s trademarks, service marks and logos solely in connection with syndication of the any Permitted Financing will be contemplated hereby; provided that such trademarks, service marks and logos are used in a form manner that is not intended to or reasonably likely to harm or disparage such party’s reputation or goodwill, and on such other customary for use in terms and conditions as shall be mutually agreed by the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel Company and the Takeover RulesParent.
Appears in 1 contract
Samples: Merger Agreement (Sezzle Inc.)
Financing Cooperation. (a) Until the earlier of the Completion Seller and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan shall use its reasonable best efforts, and shall cause each of its Subsidiaries to use its reasonable best effortsPurchased Entity provide, and shall use its their reasonable best efforts to cause its and their respective officersRepresentatives to provide, employees and advisors and other Representatives, including legal and accounting advisorscustomary cooperation, to use their reasonable best efforts, to provide to AbbVie and its Subsidiaries such assistance as may be the extent reasonably requested by AbbVie Xxxxxxxxx and Debt Merger Subs in writing writing, necessary for the arrangement of the Debt Financing (provided, that is customary in connection such requested cooperation does not unreasonably interfere with the arranging, obtaining and syndication ongoing operations of the FinancingSeller Entities or any of their Affiliates), including using reasonable best efforts with respect to:
(i) participating in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority participate in a reasonable number of meetings, presentations, road shows, drafting due diligence sessions, due diligence drafting sessions and sessions with prospective lenders, investors and rating agencies, at reasonable times and at locations reasonably acceptable to Allergan and upon with reasonable advance notice, (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers)case which may be virtual;
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications)by the Debt Financing, or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings facilitate the pledging of collateral of NewCo Guarantor, NewCo Borrower and their Subsidiaries, effective no earlier than the closing of the applicable typeDebt Merger;
(iii) providing furnish to AbbVie’s legal counsel Purchaser and its independent auditors Debt Merger Subs the Financing Information and such customary other information (including other financial information) regarding the Business as is reasonably available to Seller at such time, customarily included in offering documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery the execution of any customary negative assurance opinions and customary comfort letters relating financings of a type similar to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan Debt Financing and to references to such independent auditors as experts in any Marketing Material reasonably requested by Purchaser and registration statements and related government filings filed or used Debt Merger Subs in connection with the Financing;
(iv) assist Purchaser and Debt Merger Subs with Purchaser’s and Debt Merger Subs’ preparation of pro forma financial information and pro forma financial statements, and with Purchaser’s and Debt Merger Subs’ preparation of projections, in each case, solely with respect to information regarding the Business, it being agreed that Purchaser and Debt Merger Subs shall provide (A) the proposed aggregate amount of Debt Financing, together with assumed interest rates and fees and expenses relating to the incurrence of such Debt Financing and (B) any post-Closing or pro forma cost savings, synergies, capitalization, ownership or other pro forma adjustments in each case arising from the transactions contemplated by this Agreement;
(v) provide reasonable and customary assistance to Purchaser, Debt Merger Subs and the Lenders in the preparation of customary offering documents, lender presentations, private placement memoranda, syndication memoranda, ratings agency presentations, roadshow presentations, bank books, confidential information memoranda and other marketing material for the Debt Financing;
(vi) obtaining Allergan’s independent auditors’ execute and deliver (A) customary comfort authorization letters to the Financing Entities authorizing the distribution of information regarding the Business to prospective lenders or investors in connection with the Debt Financing and containing a customary representation that the public side versions of such documents do not include material non-public information about the Business, the Purchased Entity or its Subsidiaries or their securities, and a customary representation as to the accuracy of the written information contained in the disclosure and marketing materials regarding the Business and to the extent provided by Seller or any of its Subsidiaries, subject to customary exceptions and qualifications (“Financing Authorization Letters”) and (B) customary management representation letters and assistance CFO certificates with respect to the accounting due diligence activities financial information of the Financing SourcesBusiness included in the marketing materials for any debt offerings; provided, however, that, in each case, Seller or any of its applicable Subsidiaries shall only be obligated to deliver such financial statements and information to the extent they do not contain Excluded Information;
(vii) causing cause their independent auditors to (A) provide drafts and executed versions of customary auditor comfort letters (including “negative assurance” comfort and change period comfort) with respect to historical financial information and “negative assurance” comfort with respect to the pro formas customary and consistent with the accounting policies and procedures of the auditors of the Business, in each case, relating to the Business as reasonably requested by Purchaser and Debt Merger Subs or as necessary or customary for financings similar to the Debt Financing (including any offering or private placement of debt securities pursuant to benefit from the existing lender relationships Rule 144A) and (B) attend a reasonable number of Allergan accounting due diligence sessions and its Subsidiariesdrafting sessions at reasonable times and places;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees provide no later than four (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (34) Business Days in advance of the Completion Date such prior to Closing all documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing required by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to bank regulatory authorities under applicable “know your know-your-customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Notwithstanding anything Act and 31 C.F.R. §1010.230, relating to NewCo Guarantor, NewCo Borrower, the Purchased Entity and their Subsidiaries, in each case as reasonably requested by Purchaser at least ten (10) Business Days prior to the contrary Closing Date;
(ix) cooperate with Purchaser to obtain customary corporate and facilities credit ratings;
(x) cooperate with the Lenders’ due diligence, to the extent customary and reasonable; and
(xi) assist in this Section 7.9(athe preparation, and in the execution and delivery by NewCo Guarantor, NewCo Borrower and their Subsidiaries substantially concurrently with consummation of the Debt Mergers, of Definitive Agreements (including completing any schedules or other customary informational requirements relating to NewCo Guarantor, NewCo Borrower and their Subsidiaries with respect to, any credit agreements, purchase agreements, indentures, guarantees, pledge and security documents and other definitive financing documents), customary evidence of authority, customary officer’s certificates and customary solvency certificates.
(b) or Section 7.9(b) belowThe foregoing notwithstanding, (A) none of Allergan neither Seller nor any of its Subsidiaries Affiliates shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to 5.8 that could: (i) pay require Seller or its Subsidiaries or any commitment of their respective Affiliates or other fee any persons who are officers or incur any liability (other than third-party costs and expenses that are directors of such entities to be promptly reimbursed by AbbVie upon request by Allergan pursuant pass resolutions or consents to Section 7.9(c))approve or authorize the execution of the Debt Financing or enter into, (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document document, instrument or instrument, agreement or agree to any change to or modification of any existing agreement, certificate, document document, instrument or instrumentagreement (provided that Seller will, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent otherwise required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries tohereby, use their respective reasonable best efforts to (A) cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver persons who will continue as officers or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiariesdirectors, as applicable, of NewCo Borrower after the occurrence of the Closing, and who will not be removed or replaced in connection therewith, to deliver a customary opinion pass resolutions and to execute documents in each case which are subject to and conditioned upon, and do not become effective until, the occurrence of counsel to the trustee under closing of the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projectionsDebt Merger, (B) none of the Allergan Board, officers of Allergan, or directors execute and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which deliver the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), Authorization Letters and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would execute management representations letters and CFO certificates as set forth in clause (i) interfere unreasonably with the business or operations of Allergan or its Subsidiariesvi)(B)), (ii) cause any representation or warranty in this Agreement to be breached by Allergan Seller or any of its Subsidiaries (unless waived by AbbVie)Affiliates, (iii) require Seller or any of its Affiliates to pay any commitment or other similar fee or incur any other expense, liability or obligation in connection with the Debt Financing or otherwise incur any obligation under any agreement, certificate, document or instrument, (iv) reasonably be expected to cause any director, officer or officer, employee or shareholder of Allergan Seller or any of its Subsidiaries Affiliates to incur any personal liability liability, (v) reasonably be expected to conflict with the organizational documents of Seller or any of its Affiliates or any Laws, (ivvi) reasonably be expected to result in a material violation or breach of, or a default (with or without notice, lapse of time, or both) under, any material Contract to which Allergan Seller or any of its Subsidiaries Affiliates is a party, the Organizational Documents of Allergan (vii) provide access to or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential disclose information provided by or on behalf of Allergan that Seller or any of its Subsidiaries Affiliates determines would jeopardize any attorney-client privilege or other applicable privilege or protection of Seller or any of its Affiliates, (viii) require the delivery of any opinion of counsel, (ix) require Seller to prepare any financial statements or information that are not available to it and prepared in the ordinary course of its financial reporting practice, (x) require Seller or any of its Affiliates to prepare or deliver any Excluded Information or (xi) result in any adverse and material Tax consequences to Seller or its Affiliates, including as to the Intended Tax Treatment. Nothing contained in this Section 5.8 or otherwise in this Agreement shall require (A) Seller or any of its Affiliates (other than NewCo Guarantor, NewCo Borrower and their Subsidiaries) to be an issuer or other obligor with respect to the Debt Financing, (B) any Subsidiary of the Purchased Entity, prior to the closing of the Debt Mergers and pursuant to Section 2.2 and Section 2.3, to be an issuer or other obligor with respect to the Debt Financing or (C) NewCo Borrower, other than in accordance with Section 2.2 and Section 2.3, to be an issuer or borrower with respect to the Debt Financing. Purchaser and Debt Merger Subs shall, promptly on request by Xxxxxx, reimburse Seller and each of its Affiliates for all reasonable and documented out-of-pocket costs incurred by them or their respective Representatives in connection with such cooperation and shall reimburse, indemnify and hold harmless Seller and its Affiliates and their respective Representatives from and against any and all losses suffered or incurred by them in connection with the arrangement of the Debt Financing, any action taken by them at the request of Purchaser or its Representatives pursuant to this Section 7.9 5.8 and any information used in connection therewith (other than, in each case, any costs incurred in connection with the preparation, review and audit of historical financial information).
(c) The parties hereto acknowledge and agree that the provisions contained in this Section 5.8 represent the sole obligation of Seller and its Affiliates with respect to cooperation in connection with the arrangement of any financing (including the Financing) to be obtained by Purchaser and Debt Merger Subs with respect to the transactions contemplated by this Agreement and the Commitment Letters, and no other provision of this Agreement (including the Exhibits and Schedules hereto) or the Commitment Letters shall be deemed to expand or modify such obligations. In no event shall the receipt or availability of any funds or financing (including the Financing) by Purchaser or any of its Affiliates or any other financing or other transactions be a condition to any of Purchaser’s, Bank Debt Merger Sub’s or Bond Debt Merger Sub’s obligations under this Agreement.
(d) Subject to Section 11.12, the parties hereto acknowledge and agree that all amounts, fees and expenses paid or payable by Purchaser, Bank Debt Merger Sub, Bond Debt Merger Sub or their respective Affiliates in connection with the Debt Financing or Alternative Financing, as applicable, and/or the arrangement thereof or required to be paid prior to or at the Closing pursuant to the terms of the Debt Commitment Letter and any fee letters related thereto and/or the Definitive Agreements (including, for the avoidance of doubt, any original issue discount) shall be borne by Purchaser.
(e) All non-public or otherwise confidential information regarding Seller or any of its Affiliates obtained by Purchaser or its Representatives pursuant to this Section 5.8 shall be kept confidential in accordance with the Confidentiality Agreement.
(f) Seller hereby consents, and shall cause the Purchased Entity to consent, to the use of the Purchased Entity’s trademarks and logos in connection with the Debt Financing; provided, that Allergan acknowledges such trademarks and agrees logos (i) are used solely in a manner that is not intended to or reasonably likely to harm or disparage the confidentiality undertakings that will be obtained Purchased Entity or any of its Subsidiaries or Seller or the reputation or goodwill of the Purchased Entity or any of its Subsidiaries or Seller and (ii) are used solely in connection with syndication a description of the Financing will be Purchased Entity and its Subsidiaries, the Business or the Transaction in a form customary for use in connection with any marketing materials related to the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover RulesDebt Financing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Fidelity National Information Services, Inc.)
Financing Cooperation. (a) Until From the date of this Agreement until the Closing (or the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9Article 12), Allergan shall use its reasonable best effortsthe Company shall, and shall cause each of its Subsidiaries to to, use its commercially reasonable best efforts, and shall use its reasonable best efforts to cause its and their respective officers, employees and advisors and other Representatives, including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie and its Subsidiaries such assistance customary cooperation as may be is reasonably requested by AbbVie Parent and Merger Subsidiary in writing connection with Parent’s and Merger Subsidiary’s arrangement of debt financing pursuant to that is customary certain commitment letter dated as of the date hereof from the Debt Financing Sources party thereto (including all related exhibits, schedules, annexes, supplements and term sheets thereto, and as amended, supplemented, replaced or otherwise modified from time to time, the “Debt Commitment Letter”) in connection with the arrangingtransactions contemplated hereby in the amount set forth therein (any such debt financing, obtaining and syndication of the “Parent Debt Financing”). Subject to the limitations in paragraph (b) below, including using reasonable best efforts with respect to:
such cooperation shall include (i) furnishing Parent and Merger Subsidiary with the Required Information, all of which shall be provided by the Company as promptly as practicable after the date hereof, and updating any such Required Information as may be necessary for such Required Information to be remain Compliant, (ii) upon reasonable notice, participating in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by cause appropriate members of senior management of Allergan with appropriate seniority to participate in a reasonable number of lender presentations, meetings, presentations, road shows, drafting sessionscalls, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required agencies in connection with the Parent Debt Financing (collectivelyat reasonable times and locations to be mutually agreed, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing reasonable assistance to AbbVie’s legal counsel and Parent in its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery preparation of any customary negative assurance opinions and bank information memoranda (including the delivery of customary comfort executed authorization letters relating with respect to the Financing;
bank information memoranda executed by a senior officer of the Company), (iv) causing Allergan’s independent auditors reasonably cooperating with, and taking all actions reasonably required by, Parent in order to provide customary cooperation with facilitate the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan termination and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities payoff of the Financing Sources;
(vii) causing commitments under the Financing to benefit from the Company’s existing lender relationships of Allergan credit facilities and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any other indebtedness for borrowed money of Allergan or any the Company required by the terms of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected therebythis Agreement, including customary payoff letters letters, lien releases, instruments of termination or discharge in order to allow for the payoff, discharge and termination in full on the Closing of such existing debt, and using commercially reasonable efforts to facilitate the obtaining of Company guarantees of Parent Debt Financing and pledging of Company collateral in connection therewith as of Closing, (v) reasonably assisting Parent in the execution and delivery of customary definitive documents and certificates related to the Parent Debt Financing, (vi) providing customary information about the Company and its Subsidiaries as the Company may have, upon reasonable request of Parent, in connection with Parent’s efforts to obtain ratings from rating agencies contemplated by the Debt Commitment Letter, (vii) furnishing, at least three Business Days prior to the Closing, such documentation and information as is reasonably requested in writing by Parent at least ten Business Days prior to the Closing to the extent requiredrequired for lenders under the Parent Debt Financing under applicable “know your customer” and anti-money laundering rules and regulations including the USA PATRIOT Act and a certificate regarding beneficial ownership required by 31 C.F.R. § 1010.230 and (viii) evidence that notice taking corporate actions reasonably required to permit the consummation of any such repayment has been timely delivered the Parent Debt Financing and to permit the proceeds thereof to be made available to the holders of such indebtedness, in each case in accordance with Surviving Company at the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring Effective Time. The Company hereby consents to the customary and reasonable use of all of Allergan’s its and its Subsidiaries’ logos in connection with the Financing (such Parent Debt Financing; provided that such logos are used solely in a manner that is not intended to and is not intended, or reasonably likely likely, to harm or disparage Allergan the Company or any of its Subsidiaries or the reputation or goodwill of Allergan any of them.
(b) Notwithstanding Section 6.08(a) or anything else in this Agreement, (i) in no event will the Company or any of its Subsidiaries be required to pay any commitment fee or other fee or payment to obtain consent, or to incur any liability or expense (other than with respect to any authorization letter contemplated above) with respect to, or cause or permit any Lien to be placed on any of their respective assets in connection with, the Parent Debt Financing prior to the Effective Time, (ii) nothing in this Section 6.08 shall require any action that would conflict with or violate the Company’s or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Notwithstanding anything to the contrary in this Section 7.9(a) or Section 7.9(b) below, (A) none of Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing ’ organizational documents or any other agreement, certificate, document Applicable Laws or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergancontravention of, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement reasonably be expected to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract contract to which Allergan the Company or any of its Subsidiaries is a partyparty and (iii) nothing herein will require cooperation or any action to the extent (A) it could reasonably be expected to materially or unreasonably interfere, with the Organizational Documents business or operations of Allergan the Company or its Subsidiaries, (B) it could reasonably be expected to be in violation of Applicable Law or conflict with any obligation or undertaking of the Company or its Subsidiaries, (C) it provides access to, or disclosure of, any information that the Company or its Subsidiaries reasonably determines could reasonably be expected to jeopardize any attorney-client privilege of the Company or its Subsidiaries, (D) it would require or cause the Company or any applicable Law. AbbVie shall cause all non-public Subsidiary to enter into any agreement that would be effective prior to the Effective Time, (E) it would alter any term or other condition of this Agreement or (F) it would require disclosure of confidential information provided by or on behalf of Allergan or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that the without reasonably appropriate confidentiality undertakings that will be obtained and liability limitation provisions in favor of Company and its Subsidiaries, in form and substance reasonably satisfactory to them. Parent shall, promptly upon termination of this Agreement (if any), reimburse the Company, or after the Closing shall make payment to the Holder Representative Expense Fund, for all reasonable, documented out-of-pocket expenses and costs incurred in connection with syndication the performance of the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover RulesCompany’s or its Affiliates’ obligations under this Section 6.08.
Appears in 1 contract
Financing Cooperation. (a) Until Prior to the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9Closing Date, Allergan Broadcom shall use its reasonable best effortsprovide, and shall cause each of its Subsidiaries to use its reasonable best effortsprovide, and shall use its reasonable best efforts to cause its and their respective officers, employees and advisors and other Representatives, including legal and accounting advisors, to use their reasonable best efforts, Representatives to provide to AbbVie Avago all cooperation reasonably requested by Avago in connection with the Debt Financing or any replacement, amended, modified or alternative financing permitted by this Agreement (collectively with the Debt Financing, the “Available Financing”), including (i) furnishing Avago the Required Financial Information by the times required by the Debt Commitment Letter and such other Financing Information and other financial and other pertinent information and disclosures regarding Broadcom and its Subsidiaries such assistance as may be reasonably requested by AbbVie in writing that is customary in connection with Avago and necessary to permit the arranging, obtaining and syndication consummation of the Available Financing, including using reasonable best efforts with respect to:
(iii) participating in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetingsmeetings (including one-on-one meetings or conference calls with parties acting as agents or arrangers for, and prospective lenders of, the Available Financing for the transactions contemplated by this Agreement), presentations, road shows, drafting due diligence sessions, due diligence drafting sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan cooperating with the marketing or solicitation efforts of Avago and upon reasonable noticeits Financing Sources, in each case as reasonably requested by Avago and reasonably required in connection with the Available Financing, (Biii) as reasonably requested by Avago, assisting with AbbVie’s the preparation of Marketing Materials, including customary materials for registration statementsrating agency presentations, offering memoranda and bank information memoranda (including with respect to presence of absence of material non-public information relating to Broadcom and its Subsidiaries and the accuracy of the information relating to Broadcom and its Subsidiaries contained therein), lender presentations, offering documents, authorization letters, confirmations and undertakings in connection with the Financing Information, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations prospectuses and similar documents required in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related theretoAvailable Financing, (Civ) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated if reasonably requested by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings Avago in connection with the Marketing Material (in each caseAvailable Financing, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries providing (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice notices of any such repayment has been timely delivered or repurchase (subject to and conditioned upon the Closing) with respect to the holders of such indebtedness, in each case in accordance with Broadcom Notes and the terms of the definitive documents governing such indebtedness Broadcom Credit Agreement and (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ixB) procuring consents to the reasonable use of all of Allergan’s logos documentation and other information required in connection with the Available Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to bank regulatory authorities under applicable “know your know-your-customer” and anti-money laundering rules and regulations, including without limitationthe Patriot Act (provided, that, such documentation and information is reasonably requested in writing by Avago at least five (5) days prior to the USA PATRIOT ACTClosing), (v) assisting in the preparation of any customary credit agreements (or amendments thereto), pledge and security documents, guarantees, indentures, purchase agreements, and other customary definitive documentation, customary closing certificates, and related deliverables relating to the Available Financing and reasonably facilitating the granting of a security interest (and perfection thereof) in collateral, guarantees, mortgages and other definitive financing documents (including title insurance) (including assisting with the execution, preparation and delivery of original stock certificates (or local equivalents) and other certificated securities that are pledged under the Available Financing and original stock powers executed in blank (or local equivalents) to the parties to the Available Financing (including, but not limited to, providing copies thereof prior to the Closing Date) and taking reasonable steps necessary to permit the Financing Sources to evaluate the assets of Broadcom and cash management and accounting systems and policies and procedures relating thereto for purposes of examining collateral arrangements (including collateral field examinations and appraisals) as well as establishing bank and other accounts and blocked account agreements and lock box arrangements, provided that no pledge should be effective until the Closing and the delivery of any such original stock certificates and other certificated securities and original stock powers shall be delivered in escrow pending release at Closing); provided, however, that, no obligation of Broadcom under any agreement, certificate, document or instrument shall be effective until the Closing, and Broadcom shall not be required to pay any commitment or other fee or incur any other liability in connection with the Available Financing prior to the Closing (except to the extent that Avago promptly reimburses (in the case of ordinary course out-of-pocket costs and expenses) or provides the prior funding (in all other cases) to Broadcom therefor), (vi) upon the reasonable request of Avago, satisfying the conditions precedent set forth in the Debt Commitment Letter to the extent the satisfaction is within the control of Broadcom, (vii) cooperating with the Financing Sources’ due diligence investigation, to the extent customary and reasonable and not unreasonably interfering with the business of Broadcom and (viii) upon the reasonable request of Avago, assist Avago in obtaining accountant’s comfort letters and legal opinions customary for financings similar to the Debt Financing.
(b) Avago acknowledges and agrees that, other than ordinary course out-of-pocket costs and expense subject to reimbursement pursuant to this Section 6.16, neither Broadcom nor any of its Subsidiaries and Representatives shall have any responsibility for, or incur any liability to, any Person under, any Debt Financing that Avago may raise in connection with the transactions contemplated by this Agreement or any cooperation provided pursuant to this Section 6.16. Avago shall promptly, upon request by Broadcom, reimburse Broadcom and its Subsidiaries, as applicable, for all reasonable and documented out-of-pocket costs and expenses (including any attorneys’ fees and Out-of-Pocket Repatriation Taxes) incurred by Broadcom or its Subsidiaries, as applicable, in connection with the cooperation of Broadcom and its Subsidiaries, as applicable, contemplated by this Section 6.16. Avago shall indemnify and hold harmless Broadcom and its Subsidiaries (and its Representatives) from and against any and all losses, damages, claims, costs, Out-of-Pocket Repatriation Taxes or other expenses suffered or incurred by any of them in connection with the arrangement of the Debt Financing or Available Financing and any information used in connection therewith (other than historical information relating to Broadcom or its Subsidiaries provided by Broadcom in writing specifically for use in the Debt Financing offering documents), in each case except to the extent such losses, damages, claims, costs or expenses arise from Broadcom’s bad faith or willful misconduct, as finally determined by a court of competent jurisdiction. Notwithstanding anything to the contrary in this Section 7.9(a) 6.16, Avago shall have no obligation to reimburse or Section 7.9(b) below, (A) none of Allergan nor any of indemnify or hold harmless Broadcom or its Subsidiaries or Representatives for Out-of-Pocket Repatriation Taxes unless the Closing shall be required fail to take occur within fourteen (14) days of the repatriation of such funds. In the event of a termination of this Agreement, Broadcom shall use reasonable best efforts to mitigate any losses, damages, claims, costs, Out-of-Pocket Repatriation Taxes or permit the taking of any action other expenses subject to reimbursement pursuant to this Section 7.9(a) 6.16, including by rescinding any dividends or other distributions declared, paid or otherwise made. For purposes of this Section 7.9(b) below to 6.16, “Out-of-Pocket Repatriation Taxes” means out-of-pocket Taxes resulting from (i) pay any commitment funds repatriated at the direction of Avago, or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents or any other agreementlater event, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that such Taxes would not conflict with applicable Law and would be accurate in light have resulted but for a reduction, utilization or elimination of net operating losses, credits or other Tax attributes that may otherwise have reduced or eliminated such Taxes by reason of the facts and circumstances funds repatriated at the time delivered and direction of Avago.
(zc) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan Nothing in this Section 6.16 shall require Broadcom or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (iA) unreasonably interfere unreasonably with the business or ongoing operations of Allergan Broadcom or its Subsidiaries, (iiB) cause any covenant, representation or warranty in this Agreement to be breached by Allergan Broadcom or any of its Subsidiaries, (C) require Broadcom or any of its Subsidiaries (unless waived to pay any commitment or other similar fee or incur any other expense, liability or obligation in connection with the financings contemplated by AbbVie)the Debt Commitment Letter prior to the Closing, (iiiD) cause any director, officer or employee or shareholder of Allergan Broadcom or any of its Subsidiaries to incur any personal liability liability, or (ivE) result in a material violation or breach of, or a default under, authorize any material Contract to which Allergan corporate action of Broadcom or any of its Subsidiaries that would become effective and operative prior to the Closing. Broadcom hereby consents to the reasonable use of its and its Subsidiaries’ logos in connection with the Debt Financing; provided, that such logos shall be used solely in a manner that is a partynot intended or reasonably likely to harm, the Organizational Documents of Allergan disparage or its Subsidiaries otherwise adversely affect Broadcom or any applicable Law. AbbVie shall cause all of its Subsidiaries.
(d) All non-public or other otherwise confidential information provided by or on behalf of Allergan regarding Broadcom or any of its Subsidiaries obtained by Avago or its Representatives pursuant to this Section 7.9 to 6.16 shall be kept confidential in accordance with the Confidentiality Agreement.
(e) At the request of Holdco or Avago, subject to applicable Law and the Charter Documents of Broadcom and its Subsidiaries, Broadcom shall, and shall cause its Subsidiaries to, do all things necessary, proper or advisable (including by reasonably cooperating with the Avago Parties and the Financing Sources) to make available (by way of a dividend, a loan, or such other method, in each case as requested by Holdco or Avago) any cash, cash equivalents and marketable securities (which shall be liquidated for cash at the request of Holdco or Avago) of Broadcom and its Subsidiaries, wherever held, for the funding of the consummation of the transactions contemplated hereby, including the amounts payable in connection with the consummation of the Transactions, all related fees and expenses required to be paid as of the date of the consummation of Merger and the funds required to fund the repayment or refinancing of the Broadcom Notes and the Broadcom Credit Agreement, at least one (1) Business Day prior to the Closing Date.
(f) At the request of Holdco or Avago, Broadcom shall commence a tender and consent solicitation for the Broadcom Notes; provided, that Allergan acknowledges the consummation of such tender shall be conditioned upon the Closing and agrees that the confidentiality undertakings that will shall be obtained in connection consummated no earlier than contemporaneously with syndication of the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover RulesClosing.
Appears in 1 contract
Financing Cooperation. (a) Until Subject to Section 6.11(a), prior to the earlier of First Effective Time, the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan Company shall use its reasonable best efforts, and shall cause each of its Subsidiaries to use its reasonable best effortsto, and shall use its reasonable best efforts to cause its and their respective officersat Parent’s sole expense, employees and advisors and other Representatives, including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie and its Subsidiaries such assistance reasonably cooperate in connection with the arrangement of the Debt Financing as may be reasonably requested by AbbVie in writing that is customary Parent in connection with the arranging, obtaining Debt Financing (provided that such requested cooperation is otherwise consistent with this Agreement and syndication does not unreasonably interfere in any material respect with the ongoing operations of the FinancingCompany and its Subsidiaries). Such cooperation by the Company shall include, including using at the reasonable best efforts with respect torequest of Parent:
(i) participating in and commenting on or assisting with the due diligence, syndication preparation (including providing information and materials to be used in the preparation) of customary confidential information memoranda or other marketing of similar offering documents for the Debt Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection with lender presentations for the Financing (collectivelyDebt Financing; provided, “Marketing Material”) that any such document and due diligence sessions related thereto, (C) delivering rating agency presentation shall contain disclosure and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into reflecting the Allergan SEC Documents (Company as the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers)obligor;
(ii) timely furnishing AbbVie assisting in the preparation of, and its Financing Sources with historical financial executing and delivering, one or more credit agreements, guarantees, pledge and security documents, supplemental indentures, currency or interest hedging arrangements, other customary information (collectivelydefinitive financing documents, the “Financing Information”) or other certificates, documents, or closing deliverables with respect to Allergan and its Subsidiaries the Debt Financing contemplated by the Debt Commitment Letter as is may be reasonably requested by AbbVie or its Financing Sources and customarily required Parent (including customary consents of accountants for use of their reports in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements any materials relating to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), Debt Financing) or (B) otherwise reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings facilitating the pledging of the applicable typecollateral;
(iii) providing to AbbViefurnishing Parent and Parent’s legal counsel Financing Sources and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection their respective Representatives with their delivery of any customary negative assurance opinions and customary comfort letters relating to the FinancingRequired Information;
(iv) causing Allergan’s independent auditors furnishing Parent for distribution to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of information required by any indebtedness Financing Sources for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance compliance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to applicable “know your customer” and anti-money laundering rules and regulations, including without limitationUSA Patriot Act of 2001 at least three days prior to Closing;
(v) participating in a reasonable number of meetings with prospective lenders for the Debt Financing at times and location to be mutually and reasonably agreed upon, including contact between appropriate senior management, on the USA PATRIOT ACTone hand, and prospective lenders on the other;
(vi) cooperating reasonably with the due diligence of the Financing Sources, to the extent customary and reasonable and to the extent not unreasonably interfering with the ongoing operations of the Company or any of its Subsidiaries;
(vii) cooperating in satisfying the conditions precedent set forth in the Debt Commitment Letter or any definitive document relating to the Debt Financing (to the extent the satisfaction of such condition requires the cooperation of, and is within the control of the Company or its Subsidiaries);
(viii) cooperating with Parent in Parent’s efforts to obtain consents, legal opinions, surveys, title insurance and insurance affidavits as reasonably requested by Parent;
(ix) taking all actions reasonably requested by Parent and necessary to (A) permit the prospective lenders involved in the Debt Financing to evaluate the Company and its Subsidiaries’ current assets, cash management and accounting systems, policies and procedures relating thereto for the purpose of establishing collateral arrangements to the extent customary and reasonable and (B) no earlier than the Closing establish bank and other accounts and blocked account agreements and lock-box arrangements in connection with the foregoing; and
(x) provide commercially reasonable efforts to assist Parent in connection with Parent’s preparation of pro forma financial information and financial statements to the extent necessary or reasonably required by Financing Sources to be included in any offering documents or marketing documents related to the Debt Financing. Parent shall promptly reimburse the Company for any expenses and costs incurred in connection with the Company’s or its Affiliates’ obligations under this Section 6.17(a). Notwithstanding anything in this Agreement to the contrary contrary, nothing in this Agreement shall require the Company or any of its Subsidiaries to (i) waive or amend any terms of this Agreement, agree to pay any commitment or other fees or reimburse any expenses prior to the First Effective Time or to approve the execution or delivery of any document or certificate in connection with the Financing (or any alternative financing), (ii) enter into any definitive agreement relating to the Debt Financing prior to the First Effective Time or (iii) provide any information the disclosure of which is prohibited or restricted under applicable Law or where such disclosure would, in the opinion of counsel, reasonably be expected to result in the waiver of any attorney-client privilege; provided, that in the case of the preceding clause (iii), that they shall use commercially reasonable efforts to communicate the applicable information to Parent in a way that would not violate the applicable Law or result in the waiver of such privilege, including by providing such information in redacted form as necessary to preserve such privilege or comply with such Law. Nothing in this Section 7.9(a) 6.17 shall require the cooperation of the Company to the extent that it would unreasonably interfere with the business or Section 7.9(b) belowoperations of the Company. No officer of the Company or any of its Subsidiaries who is not reasonably expect to be an officer of the Second Step Surviving Corporation shall be obligated to deliver any certificate in connection with the Financing and no counsel for the Company or any of its Subsidiaries shall be obligated to deliver any opinion in connection with the Financing, (A) none and irrespective of Allergan nor the above, no obligation of the Company or any of its Subsidiaries under any agreement, certificate, document or instrument shall be effective until the First Effective Time. None of the Company or any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay under any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c))certificate, (ii) execute or deliver any definitive financing documents or any other agreement, certificatearrangement, document or instrument, instrument that is not contingent upon the occurrence of the Closing (including entry into any agreement that is effective before the First Effective Time) or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty First Effective Time. Nothing in this Agreement to be breached by Allergan or will require any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder Representative of Allergan the Company or any of its Subsidiaries to incur deliver any certificate or opinion or take any other action pursuant to Section 6.17 or any other provision of this agreement that could reasonably be expected to result in personal liability to such officer or Representative.
(ivb) result The Company hereby consents to the use of all logos of the Company and its Subsidiaries in connection with the Financing so long as such logos (i) are used solely in a material violation manner that is not intended to or breach of, would reasonably be likely to harm or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, disparage the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan Company or any of its Subsidiaries or the reputation or goodwill of the Company or any of its Subsidiaries and (ii) are used solely in connection with a description of the Company, its business and products or the Merger.
(c) Parent shall indemnify and hold harmless the Company and its Subsidiaries and their respective Representatives from and against any and all losses actually suffered or incurred by them in connection with the arrangement of the Debt Financing, solely to the extent arising from any action taken by them at the request of Parent pursuant to this Section 6.17 and any information misused by the Financing Sources in connection therewith, except to the extent with respect to any willful misconduct, fraud, bad faith, gross negligence or material misstatement or omission in information provided hereunder, by any of the Company, its Subsidiaries or any of their respective Representatives.
(d) All non-public or otherwise confidential information regarding the Company or its Subsidiaries obtained by Parent or any of its Representatives pursuant to this Section 7.9 to 6.17 shall be kept confidential in accordance with the Confidentiality Agreement; provided, provided that Allergan acknowledges Parent and agrees Merger Sub shall be permitted to disclose Confidential Information to potential debt financing sources and their Representatives without the prior written consent of the Company if such potential debt financing sources and their Representatives who receive such information are subject to a confidentiality agreement no less restrictive that the confidentiality undertakings that will be obtained in connection Confidentiality Agreement with syndication of the Financing will be in a form customary for use respect to such information or as provided in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover RulesCommitment Letter.
Appears in 1 contract
Samples: Merger Agreement (Diligent Corp)
Financing Cooperation. (a) Until Prior to the earlier of Closing, the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan Company shall use its reasonable best effortsefforts to provide to Parent and Merger Sub, and shall cause each of its Subsidiaries subsidiaries to use its reasonable best effortsefforts to provide, and shall use its reasonable best efforts to cause its and their respective officers, employees and advisors and other Representatives, including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie and its Subsidiaries such assistance as may be all cooperation reasonably requested by AbbVie in writing Parent and Merger Sub that is customary reasonably necessary in connection with the arranging, obtaining and syndication syndicating the Debt Financing and causing the conditions in the Debt Financing Commitment to be satisfied (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the FinancingCompany or its subsidiaries), including using reasonable best efforts with respect towhich cooperation will include:
(i) participating in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation of customary materials for Offering Documents, registration statements, offering documents, private placement memoranda, bank confidential information memoranda, prospectuses, rating agency presentations memoranda and similar documents required in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers)Debt Financing;
(ii) timely furnishing AbbVie to Parent and the Debt Financing Parties as promptly within 40 days after end of a fiscal quarter that is not a fiscal year end, its Financing Sources with historical financial unaudited consolidated balance sheet as at the end of such quarter and other customary related unaudited statements of income and cash flow, and within 60 days after end of each fiscal year, within its audited consolidated balance sheet as of such year and related audited statements of income and cash flows, and as promptly as practicable all Required Information and identifying any portion of such information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation Sconstitutes material non-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable typepublic information;
(iii) providing having the Company designate members of senior management of the Company to AbbVie’s legal counsel execute customary authorization letters with respect to Offering Documents and its independent auditors such customary documents participate in a reasonable number of presentations, lender meetings, road shows, due diligence sessions, drafting sessions and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested sessions with ratings agencies in connection with their delivery the Debt Financing, including direct contact between such senior management of any customary negative assurance opinions the Company and customary comfort letters relating to its subsidiaries and the Debt Financing Parties and other potential lenders in the Debt Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation assisting Parent in obtaining any corporate credit and family ratings from any ratings agencies contemplated by the Debt Financing Commitment, including assisting with the Financingpreparation of rating agency presentations;
(v) obtaining requesting and using reasonable best efforts to obtain customary accountant’s comfort letters (including “negative assurance”) and consents from the consents of AllerganCompany’s independent auditors with respect to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the FinancingRequired Information;
(vi) obtaining Allergan’s independent auditors’ assisting in the preparation of, and executing and delivering, definitive financing documents, including guarantee and collateral documents, schedules and perfection certificates pertaining thereto and providing customary comfort letters and assistance closing certificates as may be required in connection with the accounting due diligence activities of Debt Financing and other customary documents and deliverables as may be reasonably requested by Parent, including constituent documents, bylaws, operating agreements and other corporate documentation governing the Financing SourcesCompany and its subsidiaries;
(vii) causing facilitating actions reasonably required for the pledging of collateral for the Debt Financing including delivery on the Closing Date to benefit from the existing lender relationships Parent or its designee of Allergan and all Stock Certificates of its Subsidiariesdomestic subsidiaries;
(viii) providing documents reasonably requested by AbbVie or assisting the Debt Financing Sources relating to Parties in benefiting from the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms existing lending relationships of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion)Company and its subsidiaries;
(ix) procuring consents requesting and using reasonable best efforts to obtain from the reasonable use of all of AllerganCompany’s logos existing lenders such customary documents in connection with refinancings as reasonably requested by Parent in connection with the Debt Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm collateral arrangements, including customary payoff letters, lien releases and instruments of termination or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); anddischarge;
(x) providing at least three (3) Business Days in advance of furnishing Parent and the Completion Date such Debt Financing Parties with all documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection Debt Financing Parties to be required by Governmental Authorities with respect to the Debt Financing that relates to under applicable “know your customer” and anti-money laundering rules and regulations, including without limitationthe Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, the USA PATRIOT ACT. Notwithstanding anything as amended at least five (5) Business Days prior to Closing; cooperating with Parent, and taking all corporate actions, subject to the contrary occurrence of the Closing to the extent requested by the Debt Financing Parties at least eight (8) Business Days prior to the Closing, reasonably requested by Parent to permit the consummation of the Debt Financing;
(xi) cooperating with Parent to obtain legal opinions, such surveys and title insurance as reasonably requested by Parent or any of the Debt Financing Parties in this Section 7.9(aconnection with the Debt Financing; and
(xii) or Section 7.9(b) belowproviding monthly financial statements, if so requested by Parent, in a form and on a timeframe consistent with the Company’s ordinary course of business; provided, however, that such cooperation shall not (A) none of Allergan nor require the Company, any of its Subsidiaries shall be required subsidiaries or its Representatives to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability that is not contingent upon the Closing (other than third-party costs and expenses that are to be or otherwise promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c))Parent) or, (ii) without limitation of the foregoing, execute or deliver perform any definitive financing documents (except authorization letters) prior to the Closing or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case instrument that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental IndenturesClosing, (yB) customary officers’ certificates relating to the execution thereof include any actions that would not conflict with applicable Law and would be accurate (1) result in light a violation of the facts and circumstances at organizational documents of the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan Company or any of its Subsidiaries reasonably determines would jeopardize subsidiaries, prior to Closing, any attorney-client privilege of Allergan Contract to which the Company or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends subsidiaries are party if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions action would not conflict with applicable Law have a material adverse effect on the company and would be accurate in light of the facts and circumstances at the time delivered))its subsidiaries or any laws, (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii2) cause any representation representation, warranty, covenant or warranty other obligation in this Agreement to be breached by Allergan or any condition set forth in Article VI to fail to be satisfied (unless Parent has waived such breach or condition), (C) involve consenting to the pre-filing of UCC-1s or any other grant of Liens that results in the Company or any of its Subsidiaries (unless waived by AbbVie)affiliates being responsible to any third parties for any representations or warranties prior to the Closing, (iiiD) require the giving of representations or warranties (other than customary authorization letters described above) to any third parties or the indemnification thereof prior to Closing, (E) require the waiver or amendment of any terms of this Agreement or the payment of any fees or reimbursement of any expenses prior to the Closing for which the Company has not received prior reimbursement or is not otherwise indemnified by the Parent or subject to required reimbursement, (F) cause any director, officer or employee or shareholder of Allergan the Company, any of its subsidiaries or any of its Subsidiaries their respective affiliates to incur any personal liability (including that none of the board of directors, or analogous body, thereof (in their capacities as such) will be required to enter into any resolutions or take any similar action approving the Debt Financing until the Closing has or has substantially concurrently occurred), (G) require the delivery of any projections to any third parties, or (ivH) result require the delivery of any financial statements in a material violation form or breach of, subject to a standard different than those provided to Parent on or a default under, prior to the date of this Agreement (provided that the Company shall reasonably cooperate with the preparation of any material Contract to which Allergan pro forma financial statements reasonably requested by any Debt Financing Parties for the Debt Financing or is otherwise required under the terms of the Debt Financing Commitment). All non-public or otherwise confidential information regarding the Company or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided affiliates obtained by or on behalf of Allergan or any of its Subsidiaries or Representatives Parent pursuant to this Section 7.9 to 4.05(b) will be kept confidential in accordance with customary market standards and the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that terms of the confidentiality undertakings that Debt Financing Commitment. The Company will be obtained in connection with syndication of the Financing will deemed to be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with this Section 4.05(b) unless and until (x) Parent provides written notice (the requirements “Non-Cooperation Notice”) to the Company of the Panel alleged failure to comply, (y) 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 4.05(b)) and (z) the Takeover RulesCompany fails to take the actions specified on such Non-Cooperation Notice within five (5) Business Days from receipt of such written notice; provided that if Parent has sent a Non-Cooperation Notice, the Marketing Period shall be deemed to be tolled until the date that the Company takes the remedial actions specified in such Non-Cooperation Notice plus five (5) additional consecutive Business Days (which Business Days shall not constitute any of the days specified as Blackout Dates in the definition of Marketing Period).
Appears in 1 contract
Samples: Merger Agreement (Finisar Corp)
Financing Cooperation. (a) Until the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan Parent shall use its reasonable best efforts, and shall cause each its Affiliates and its and their Representatives to use their respective reasonable best efforts to arrange debt financing of Parent or any of its Subsidiaries Affiliates necessary to use its reasonable best effortsbe obtained in connection with the transactions contemplated hereby (the “Financing”).
(b) Prior to the Closing Date, and the Company shall use its reasonable best efforts to provide, and to cause its Subsidiaries and their respective officers, employees and advisors and other Representatives, including legal and accounting advisorsRepresentatives to provide, to use their Parent, in each case at Parent’s sole expense, such reasonable best efforts, to provide to AbbVie cooperation as is customary and its Subsidiaries such assistance as may be reasonably requested by AbbVie in writing that is customary Parent in connection with the arranging, obtaining and syndication arrangement of the Financing, including using its reasonable best efforts with respect to:
to (i) participating furnish Parent and its financing sources with information regarding the Company and its Subsidiaries of a type and form customarily included in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts an offering memorandum with respect to (A) a private placement pursuant to Rule 144A promulgated under the participation by members of management of Allergan with appropriate seniority Securities Act for financings similar to such financing or required in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required statement on Form S-1 by Regulation S-X and Regulation S-K under the Securities Act if (including pro forma financial information, provided that it is understood that assumptions underlying the Financing were incurred pro forma adjustments to be made are the responsibility of Parent) for registered offerings of debt securities, and information relating to the Company and its Subsidiaries customary for use in information documents with respect to the placement, arrangement or syndication of loans of the type contemplated by AbbVie such financing, as applicable (including using reasonable best efforts to deliver to Parent, with respect to the Company and registered its Subsidiaries, (A) audited consolidated balance sheets and related consolidated statements of income, shareholder’s equity and cash flows for the three most recently completed fiscal years ended at least 60 days prior to the Closing Date, and (B) unaudited consolidated balance sheets and related consolidated statements of income and cash flows for each interim fiscal quarter ended since the last audited financial statements and at least 35 days prior to the Closing Date, which financial statements shall be prepared on Form S-3 under a basis consistent with and shall otherwise comply with the Securities Actrequirements set forth with respect to financial statements of the Company in Section 3.05(b)) (information required to be delivered pursuant to this clause (i) being referred to as the “Required Financial Information”), (ii) cause its senior management to be available for and participate in a reasonable number of requested meetings (including customary one-on-one meetings (or conference calls in lieu thereof) that are requested in advance with the parties acting as lead arrangers or agents for, and prospective lenders and purchasers of, such financing and the Company’s senior management and representatives), presentations, road shows, due diligence sessions, drafting sessions and sessions with rating agencies and Parent’s financing sources in connection with such financing, (iii) assist with the preparation of customary materials for rating agency presentations, offering documents, bank information memoranda and similar documents reasonably required in connection with such financing, (iv) request its independent auditors to provide reasonable assistance to Parent (including by providing consent to Parent to prepare and use their audit reports relating to the Company and any necessary “comfort letters” (including “negative assurance”), in each case, on customary terms in connection with such financing), (v) take all corporate actions, subject to the occurrence of annual financial statements the Closing Date, reasonably requested by Parent to permit the consummation of such financing and to permit the proceeds thereof to be made available to Parent at the Closing Date, (vi) cooperate reasonably with Parent’s financing sources’ due diligence, to the extent so required customary and reasonable, (which audit reports shall not vii) arrange for customary payoff letters, lien terminations and instruments of discharge to be subject delivered on the Closing Date providing for the payoff, discharge and termination on the Closing Date of all indebtedness contemplated by the definitive agreements in respect of such financing to any “going concern” qualifications)be paid off, discharged and terminated on the Closing Date, (viii) provide customary materials that facilitate the perfection or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings enforcement of liens on the assets of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and Company or any of its Subsidiaries pursuant to such agreements as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating for such financing, (ix) to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents extent reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan Parent or its Subsidiaries or the reputation or goodwill of Allergan or any of financing sources, furnish Parent and its Subsidiaries); and
(x) providing financing sources at least three (3) Business Days in advance of prior to the Completion Closing Date such with all documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing required by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection Governmental Entities with the Financing that relates respect to such financing under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Notwithstanding anything to the contrary in this Section 7.9(a) or Section 7.9(b) below, (A) none of Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) cooperate with the marketing efforts of Parent and its financing sources and (xi) provide requested customary authorization letters to Parent’s financing sources and (xiv) at the extent required reasonable request of Parent, file a report on Form 8-K with the SEC disclosing information identified by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates Parent relating to the execution thereof that would not conflict with applicable Law Company and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege for purposes of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any permitting such information to be disclosed included in a manner that would marketing materials or memoranda for such financing to be provided to potential investors who do not result in the loss of any such privilege), (iv) deliver or cause its Representatives wish to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor receive material non-public information with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers Company and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement which information shall be subject to the approval of the Company, not to be breached by Allergan unreasonably withheld, delayed or conditioned (any of its Subsidiaries such filing a “Company Financing Filing”).
(unless waived by AbbVie), (iiic) cause any director, officer or employee or shareholder of Allergan In no event shall this Section 6.11 require the Company or any of its Subsidiaries to (1) bear any cost or expense, pay any fee, enter into any definitive agreement or incur any personal other liability prior to the Closing in connection with any debt financing of Parent or any of its Affiliates in connection with the transactions contemplated hereby, (iv2) take any actions to the extent such actions would unreasonably interfere with the ongoing business or operations of the Company and its Subsidiaries, (3) take any action that would reasonably be expected to conflict with, or result in a material any violation or breach of, or a default (with or without notice or lapse of time, or both) under, the certificate of incorporation and bylaws or comparable organizational documents of the Company or any material of its Subsidiaries, any Applicable Law or any Contract to which Allergan the Company or any of its Subsidiaries is a party, (4) cause or facilitate the Organizational Documents of Allergan or its Subsidiaries Company Board or any applicable Law. AbbVie shall cause all non-public board of directors or equivalent bodies of any of the Company Subsidiaries to approve or adopt any Financing or agreements related thereto (or any alternative financing) at or prior to the Effective Time or (5) execute or deliver any definitive agreements, certificates or instruments (other confidential information provided than the authorization letters contemplated by clause (xi) above) in respect of any Financing (or on behalf any alternative financing) at or prior to the Effective Time.
(d) The Company hereby consents to the use of Allergan its and its Subsidiaries’ logos in connection with any debt financing of Parent or any of its Affiliates in connection with the transactions contemplated hereby if such logos are used solely in a manner that is not intended to or reasonably likely to harm or disparage the Company or any of its Subsidiaries or the reputation or goodwill of the Company or any of its Subsidiaries.
(e) Parent shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all losses, liabilities, damages and reasonable out-of-pocket costs or expenses suffered or incurred by any of them arising out of or resulting from any cooperation pursuant to this Section 7.9 6.11, except to be kept confidential the extent suffered or incurred as a result of such indemnitee’s, or such indemnitee’s Representatives’, fraud, gross negligence, bad faith, willful misconduct or intentional material breach of this Agreement.
(f) The Company shall, upon the reasonable request of Parent, use its reasonable best efforts to periodically update any Required Financial Information included in accordance with the Confidentiality Agreement; providedany offering documents, that Allergan acknowledges bank information memoranda and agrees that the confidentiality undertakings that will be obtained similar documents reasonably required in connection with syndication any debt financing of the Financing will be Parent or any of its Affiliates in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance connection with the requirements of the Panel transactions contemplated hereby and the Takeover Rulesany Company Financing Filing.
Appears in 1 contract
Samples: Merger Agreement (WestRock Co)
Financing Cooperation. (a) Until Subject to Section 6.14(b), prior to the earlier of Effective Time, the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan shall use its reasonable best effortsCompany shall, and shall cause each of its the Company Subsidiaries to use its reasonable best effortsto, and shall use its reasonable best efforts to cause its and their respective officersRepresentatives to, employees and advisors and other Representatives, including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie Parent such customary and its Subsidiaries such assistance necessary cooperation as may be reasonably requested by AbbVie in writing that is customary Parent to assist Parent in connection with the arranging, obtaining and syndication of the Financing, including using reasonable best efforts with respect towhich cooperation shall include:
(i) participating causing its management team, external auditors and other non-legal advisors to assist in preparation for and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority participate in a reasonable number of meetings, presentations, road shows, drafting due diligence sessions, due diligence drafting sessions and sessions with prospective financing sources and potential lenders;
(ii) to the extent appropriate, investors using commercially reasonable best efforts to enable the efforts to complete the Financing to benefit from the Company’s existing lending and rating agenciesinvestment banking relationships;
(iii) subject to the limitations set forth in Section 6.14(a)(iv), at times and at locations reasonably acceptable using reasonable best efforts to Allergan and upon reasonable notice, (B) assisting assist with AbbVie’s the timely preparation of customary materials for registration statementsroad show materials, bank information memoranda, credit agreements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations memoranda and similar documents required in connection with the Financing Financing, including the marketing thereof;
(collectivelyiv) subject to Section 6.4, “Marketing Material”furnishing Parent and its financing sources as promptly as practicable with (1) information regarding the Company and due diligence sessions related its Subsidiaries to the extent reasonably available to the Company (including information to be used in the preparation of one or more information packages regarding the Company and its Subsidiaries) customary for the arrangement of the Financing, to the extent reasonably requested by Parent or Merger Sub to assist in preparation of customary investor or lender presentations relating to the placement of securities or arrangement of loans and (2) all consolidated financial statements, historical business and other financial data, and audit reports of the Company and its Subsidiaries, and any supplements thereto, (C) delivering and consenting in each case to the inclusion or incorporation in any SEC filing related extent reasonably required to obtain the Financing of and written historical financial information reasonably necessary for the historical audited consolidated financial statements Parent and unaudited consolidated interim financial statements of Allergan included any financing sources to prepare the customary offering or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings private placement memoranda in connection with an offering of debt or equity securities, including the Marketing Material (A) audited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of the Company and the Company Subsidiaries, for the fiscal year last ended, (B) unaudited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of the Company and the Company Subsidiaries, for each fiscal quarter ended after the date hereof (it being acknowledged and agreed that such unaudited quarterly financial statements shall be provided to Parent as soon as they are available to Company management after the completion of each fiscal quarter after the date hereof);
(v) executing and delivering any customary pledge and security documents, credit agreements, indentures, guarantees, ancillary documents and instruments and customary closing certificates and documents (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings only effective upon occurrence of the applicable type, including all Historical Financial Statements Effective Time) and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries assisting in preparing schedules thereto as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financingby Parent or Merger Sub;
(ivvi) causing Allerganassisting in (A) the preparation, execution and delivery of one or more pledge and security documents, credit agreements, indentures, guarantees, ancillary documents and instruments or (B) the termination and repayment or settlement of any of the Company’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports or its Subsidiaries’ credit agreements, guarantees, pledge and security agreements and any ancillary documents and instruments, if any, in each case, on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed terms that are reasonably requested by Parent or used Merger Sub in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities ; provided, however, that no obligation of the Financing SourcesCompany or any of its Subsidiaries under any such agreements or amendments or in respect of any such termination and repayment or settlement shall be effective until the Effective Time;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) five Business Days in advance of prior to the Completion expected Closing Date such all documentation and other information about Allergan the Company and each of its Subsidiaries as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with financing source for the Financing that relates to is required under applicable “know your customer” and anti-money laundering rules and regulations, regulations including without limitation, the USA PATRIOT ACT. Act;
(viii) using reasonable best efforts (including by providing customary representations to such accountants) to cause accountants to consent to the use of their reports in any material relating to the Financing and to provide customary comfort letters; and
(ix) reasonably cooperating to permit during normal business hours any prospective lenders involved in the Financing to evaluate the Company and the Company Subsidiaries’ current assets, cash management and accounting systems, policies and procedures relating thereto for the purpose of establishing collateral arrangements to the extent customary and reasonable and otherwise reasonably facilitating the grant of a security interest in collateral and providing related lender protections.
(b) Notwithstanding anything to the contrary contained in this Section 7.9(a) or Section 7.9(b) below, Agreement (A) none of Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to including this Section 7.9(a) or Section 7.9(b) below to 6.14): (i) nothing in this Agreement (including this Section 6.14) shall require any such cooperation to the extent that it would (a) require the Company or any of the Company Subsidiaries or their respective Representatives, as applicable, to waive or amend any terms of this Agreement or agree to pay any commitment or other fee fees or reimburse any expenses that are not contingent upon the earlier of the consummation of the Offer and the Effective Time or incur any liability (other than third-party costs and expenses or give any indemnities that are to be promptly reimbursed by AbbVie not contingent upon request by Allergan pursuant to Section 7.9(c))the earlier of the consummation of the Offer and the Effective Time, (iib) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection unreasonably interfere with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the ongoing business or operations of Allergan or its the Company and the Company’s Subsidiaries, (iic) cause any representation or warranty in this Agreement to be breached by Allergan require the Company or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its the Company Subsidiaries to incur take any personal liability action that will conflict with or (iv) violate the Company Charter or Company Bylaws, any Laws or result in the contravention of, or that would reasonably be expected to result in a material violation or breach of, or a default under, any material Contract to which Allergan the Company or any of its the Company Subsidiaries is a party, (d) require the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan Company or any of its the Company Subsidiaries to enter into or Representatives pursuant approve any financing or purchase agreement for the Financing prior to this Section 7.9 to be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained in connection with syndication earlier of the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements consummation of the Panel Offer and the Takeover RulesEffective Time.
Appears in 1 contract
Samples: Merger Agreement (Perseon Corp)
Financing Cooperation. (a) Until Prior to the earlier of Closing, the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan Company shall use its reasonable best efforts, and shall cause each of its Subsidiaries to use its their reasonable best efforts, and shall use its reasonable best efforts to cause its and their respective officers, employees and advisors and other Representatives, including legal and accounting advisors, Representatives to use their respective reasonable best effortsefforts to, to provide to AbbVie such reasonable and its Subsidiaries such assistance customary cooperation and information as may be reasonably requested by AbbVie in writing that is customary Parent in connection with (i) satisfying the arrangingconditions to, obtaining and complying with any obligations to assist in the syndication of, the Debt Financing set forth in the Debt Financing Agreements to the extent such conditions and obligations are consistent with the terms and conditions of this Agreement, including Section 6.05(c) and Section 6.05(d) and (ii) arranging any refinancing or replacement financing, whether by way of debt or equity or hybrid instrument and including entering into definitive credit facilities, indentures or other instruments or agreements (the “Replacement Financing Agreements”), the proceeds of which are to be used in whole or in part to repay or replace the Debt Financing (the “Replacement Financing” and any financial institutions engaged by Parent to provide or arrange for the Replacement Financing, the “Replacement Financing Sources”) and satisfying reasonable and customary conditions to the Replacement Financing to the extent such conditions are consistent with the terms and conditions of this Agreement, including Section 6.05(c) and Section 6.05(d).
(b) Without limiting the generality of Section 6.05(a), such assistance shall include, to the extent reasonably requested by Parent, using reasonable best efforts with respect toto take the following actions:
(i) participating furnishing financial and other pertinent information relating to the Company and its Subsidiaries and its and their businesses (including information to be used in the preparation of an information package regarding the business, operations, financial projections and assisting with prospects of Parent and the due diligence, syndication Company and its Subsidiaries customary for the Debt Financing or other marketing of the such Replacement Financing, including using reasonable best efforts with respect any prospectus or offering memorandum related thereto, or otherwise necessary for the completion of the Debt Refinancing or the Replacement Financing) to (A) Parent, Merger Subsidiary and Financing Sources or Replacement Financing Sources to the participation extent reasonably requested by members of management of Allergan with appropriate seniority the Parent to assist in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank or information memoranda, prospectuses, rating agency presentations and similar documents required to be used in connection with the Debt Financing (collectivelyor Replacement Financing and, “Marketing Material”) and due diligence sessions related theretoin respect of Replacement Financing, (C) delivering and consenting in advance of any marketing period relating to the inclusion or incorporation in any SEC filing related to the Replacement Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial StatementsMarketing Period”) and ), provided that no such information shall be required to be furnished to the extent that such information is publicly available (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings including in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimersany Company SEC Document);,
(ii) timely without limiting the generality of the preceding clause (i), furnishing AbbVie and its Financing Sources with historical reasonably promptly such financial and other customary pertinent information (collectively, regarding the “Financing Information”) with respect to Allergan Company and its Subsidiaries as is may be reasonably requested by AbbVie or its Financing Sources Parent to consummate the Replacement Financing, including, without limitation, all financial statements and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements financial and other customary data and information with respect to Allergan and its Subsidiaries (A) of the type that would be required in a registration statement on Form S-1 or by Regulation S-X and Regulation S-K under the Securities 1933 Act if for registered offerings of debt securities at such time, and of the type and form customarily included in offering documents used in private placements under Rule 144A of the 1933 Act or as may be required by the EU Prospectus Directive or the rules of any stock exchange in the United States or Europe on which debt or equity securities forming part of the Replacement Financing were incurred by AbbVie are to be listed or admitted to trading (including historical and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements and information) and other documents required to satisfy any customary negative assurance opinion, for Financings of one or more periods required to consummate the applicable type;Replacement Financing at the time the Replacement Financing is to be consummated, provided that no such information shall be required to be furnished to the extent that such information is publicly available (including in any Company SEC Document),
(iii) providing (A) in respect of Replacement Financing, prior to AbbVie’s legal counsel and during the Marketing Period, and (B) in respect of Debt Financing, at any time, if requested and on reasonable notice, participating (including via telephonic conference) in a reasonable number of meetings (including customary one-on-one meetings with the parties acting as lead arrangers or agents for, and prospective lenders and purchasers with respect to, the Debt Financing or the Replacement Financing and senior management and Representatives, with appropriate seniority and expertise, of the Company or any of its independent auditors such Subsidiaries), presentations, roadshows, due diligence sessions, drafting sessions (including accounting due diligence sessions) and sessions with rating agencies in the United States and Europe in connection with the Debt Financing or the Replacement Financing, in each case to the extent customary,
(iv) (A) in respect of Replacement Financing, in advance of the Marketing Period, and (B) in respect of Debt Financing, at any time, assisting with the preparation of (A) any customary offering documents or memoranda, bank information memoranda, prospectuses and similar documents and other (B) materials for rating agency presentations and similar documents required in connection with the Debt Financing or the Replacement Financing, provided, however, that no such documents will be issued by the Company or its Subsidiaries,
(v) executing and delivering (or using reasonable best efforts to obtain from its advisors), and using its reasonable best efforts to cause its Affiliates to execute and deliver (or use reasonable best efforts to obtain from their advisors), customary information certificates, accountants’ comfort letters (and consents of accountants for use of their reports in any materials relating to Allergan the Replacement Financing and its Subsidiaries in connection with any filings required to be made by Parent pursuant to the 1933 Act or the 1934 Act or as may be required by the EU Prospectus Directive or the rules of any stock exchange on which debt or equity securities forming part of the Replacement Financing are to be listed or admitted to trading), owner’s title affidavits, legal opinions or other documents and instruments relating to guarantees and other matters ancillary to the Replacement Financing as may be reasonably requested in connection with their delivery of any customary negative assurance opinions by the Parent as necessary and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Replacement Financing;, including participating in due diligence sessions,
(vi) facilitating the obtaining Allergan’s independent auditors’ customary comfort letters of guarantees and assistance pledging of collateral, including taking all actions reasonably necessary to establish bank and other accounts and blocked account agreements in connection with the accounting due diligence activities foregoing and executing and delivering customary pledge and security documents or other definitive financing documents and other certificates and documents as may be reasonably requested by Parent, consistent with the terms of this Agreement, to obtain and perfect security interests in assets of the Financing Sources;Company and its Subsidiaries that are intended to constitute collateral securing the Replacement Financing; provided, that all such agreements, certificates and documents shall be executed, and any obligations contained in such agreements and documents shall be effective, no earlier than the Closing,
(vii) causing providing customary authorization letters to the Replacement Financing Sources authorizing the distribution of information to benefit from prospective lenders or investors and containing a representation to the existing lender relationships Replacement Financing Sources that the public side versions of Allergan and such documents, if any, do not include material non-public information, solely to the extent such information is provided by the Company or its Subsidiaries;,
(viii) cooperating reasonably with the Replacement Financing Sources’ due diligence, to the extent customary and reasonable,
(ix) obtaining customary payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of any debt of the Company or its Subsidiaries that Parent desires to payoff, discharge and terminate at Closing or that is otherwise subject to mandatory prepayment (howsoever described) as a result of the consummation of the Merger,
(x) providing documents all documentation and other information about the Company and each of its Subsidiaries as is reasonably requested in writing by AbbVie Parent prior to the Closing Date which is in connection with the Debt Financing or the Replacement Financing Sources relating and relates to, and is reasonably required by, applicable “know your customer” and anti-money laundering rules and regulations including without limitation the USA PATRIOT Act and
(xi) taking all corporate actions, subject to the repayment occurrence of the Closing, necessary to permit the consummation of the Replacement Financing including entering into one or refinancing of more credit agreements, indentures or other instruments or agreements on terms reasonably satisfactory to Parent in connection with the Replacement Financing to the extent direct borrowings or debt incurrence (or any indebtedness for borrowed money of Allergan guarantees thereof) by the Company or any of its Subsidiaries is contemplated in the Replacement Financing.
(c) Notwithstanding the foregoing, neither the Company nor any of its Subsidiaries shall be required to be repaid (i) take any action that would subject it to actual or refinanced on potential liability or conflict with or violate the Completion Date and the release Company’s or any of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and its Subsidiaries’ organizational documents (to the extent requiredsuch conflict or violation cannot be resolved by such entity using its reasonable best efforts to do so) evidence or any Applicable Laws or result in the contravention of, or that notice would reasonably be expected to result in a violation or breach of, or a default under, any material Contract existing on the date of this Agreement to which the Company or any such repayment has been timely delivered of its Subsidiaries is a party, (ii) bear any cost, fee or expense or to pay any commitment or other similar fee or make any other payment (other than reasonable out-of-pocket costs) or incur any other liability or obligation or provide or agree to provide any indemnity in connection with the Debt Financing or the Replacement Financing or any of the foregoing prior to the holders of such indebtedness, in each case in accordance Effective Time and (iii) undertake any action that would unreasonably and materially interfere with the terms business or operations of the definitive documents governing such indebtedness Company and its Subsidiaries. Parent shall, promptly upon request by the Company, reimburse the Company for all documented and reasonable out-of-pocket costs incurred by the Company or its Subsidiaries in connection with this Section 6.05.
(provided that d) For the avoidance of doubt, none of the Company or its Subsidiaries or their respective Representatives, officers, directors (with respect to any such notice Subsidiary of the Company) or payoff letter employees shall be expressly conditioned on required to execute or enter into or perform any agreement with respect to the Completion);Debt Financing or the Replacement Financing that is not contingent upon the Closing or that would be effective prior to the Closing and no directors of the Company shall be required to execute or enter into or perform any agreement with respect to the Debt Financing or the Replacement Financing.
(ixe) procuring The Company hereby consents to the reasonable use of all of Allerganthe Company’s and its Subsidiaries’ logos in connection with the Debt Financing (or the Replacement Financing, provided that such logos are used solely in a manner that is not intended to and is not or reasonably likely to harm or disparage Allergan the Company or any of its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Notwithstanding anything to the contrary in this Section 7.9(a) or Section 7.9(b) below, (A) none of Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan Company or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to be kept confidential in accordance with any of their logos and on such other customary terms and conditions as the Confidentiality Agreement; provided, that Allergan acknowledges Company shall reasonably impose.
(f) Parent and agrees Merger Subsidiary agree that the confidentiality undertakings that will be obtained in connection with syndication obtaining of the Debt Financing will be in or the Replacement Financing (or any other financing) is not a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover Rulescondition to Closing.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Cytec Industries Inc/De/)
