Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (x) provide Seller and the Company with written notice that such Debt Financing has been obtained and (y) deliver (or cause to be delivered) to Seller and the Company true, correct and complete copies of all arrangements pursuant to which any Financing Parties shall have committed to provide any portion of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further that, in no event shall the receipt of such Debt Financing be a condition to Closing and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. Prior to the Closing, subject to Section 8.11.2, the Company shall use reasonable best efforts to, and shall use reasonable best efforts to cause the Company Subsidiaries and its and their respective Representatives to, in each case at Buyer’s sole expense, provide to Buyer such cooperation reasonably requested by Buyer that is reasonably necessary in arranging, obtaining and syndicating the Debt Financing, if any (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the operations of the Group Companies), including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies as may be reasonably requested by Buyer for the completion of the Debt Financing, (b) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies in connection with the Debt Financing to the extent reasonable and customary for financings of such type, (c) reasonably assisting in the preparation of (i) customary bank information memoranda, lender and investor presentations, offering documents, offering or private placement memoranda and other similar marketing documents and due diligence efforts for the Debt Financing and (ii) customary authorization and representation letters, each as required in connection with the Debt Financing, authorizing the distribution of information to prospective lenders and containing a representation that the public side of such documents, if any, do not include any information about any Group Company or any securities of any Group Company that would constitute material non-public information within the meaning of the United States federal and state securities laws if any Group Company were a public reporting company, (d) using reasonable best efforts to cause the Company’s independent registered accounting firm to provide customary assistance, including (i) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) in connection with any capital markets transaction comprising a part of the Debt Financing, (ii) providing customary consents to the inclusion of their audit report in respect of any financial statements of the Company and the Company Subsidiaries in any offering documents relating to the Debt Financing and (iii) reasonable assistance and cooperation to Buyer with respect to any auditor due diligence, (e) subject to and conditioned on the occurrence of the Closing, the taking of customary corporate actions reasonably necessary to permit the consummation of and funding of the Debt Financing, (f) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth in any definitive document relating to the Debt Financing to the extent satisfaction of such condition requires the cooperation of, or is within the control of, the Group Companies, (g) delivering to Buyer at least three (3) Business Days prior to the Closing all such documentation and information as is reasonably requested in writing by Buyer at least ten (10) Business Days prior to the Closing to the extent required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act and the requirements of 31 C.F.R. §1010.230, (h) facilitating and assisting in the preparation and delivery of any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents relating to the Debt Financing relating to the Group Companies, and their respective businesses to be included in the definitive documents relating to the Debt Financing, and assist with the execution and delivery of the same, in each case, solely to the extent reasonable and customary for financings of such type, (i) cooperating with internal and external counsel of Buyer 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 Debt Financing, in each case, solely to the extent reasonable and customary for financings of such type, and (j) obtaining and providing documents to Buyer (including draft payoff letters) relating to the repayment of the Indebtedness and the release of related guarantees and Liens in accordance with the terms of this Agreement. The Company hereby consents, on behalf of itself and the Group Companies, to the use of the logos of the Group Companies in connection with the Debt Financing; provided that such logos are used solely in a manner that is not intended to, nor is reasonably likely to, harm or disparage the Company’s or any of its Affiliates’ reputation or goodwill. 8.11.2. Notwithstanding anything in this Agreement to the contrary, (a) no Group Company nor any of their respective Representatives shall be required, under the provisions of this Section 8.11 or otherwise in connection with the Debt Financing, to pay any commitment or other similar fee or enter into any binding agreement (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) or commitment or incur any other actual or potential liability or obligation in connection with the Debt Financing prior to the Closing that is not advanced by Buyer, (b) no Group Company or any of their respective Representatives, managers, officers or employees shall be required to execute or enter into, perform or authorize any agreement with respect to the Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) that is not contingent upon the Closing or that would be effective prior to the Closing Date, (c) no Representative, manager, officer or employee of any Group Company shall be required to deliver any certificate or take any other action pursuant to this Section 8.11 to the extent any such action would reasonably be expected to result in personal liability to such Representative, manager, officer or employee, (d) no Group Company or their respective Representatives shall be required to take any action that would reasonably be expected, in the reasonable judgment of the Company, to conflict with, or result in any violation or breach of, any applicable Laws, any organizational documents of any Group Company, any contract or obligations of confidentiality (not created in contemplation hereof) binding on any Group Company, (e) no Group Company or any of their respective Representatives shall be required to take any action that would cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement, (f) no Group Company or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, the Company has, in its good faith, determined is not true, (g) no Group Companies or their respective Representatives shall be required to provide, and the Buyer will be solely responsible for the preparation of: (1) pro forma financial information; (2) any description of all or any component of the Debt Financing; or (3) projections, risk factors or other forward-looking statements relating to all or any component of the Debt Financing; and (h) no Group Company shall be required to provide access to or disclose information that the Company determines would jeopardize any attorney–client privilege or other similar privilege of the Company or any of its Subsidiaries. Promptly upon request by the Company, Xxxxx will reimburse the Company for any reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Company, the Company Subsidiaries or any of their Representatives in connection with the cooperation of the Company, the Company Subsidiaries and their Representatives contemplated by this Section 8.11. Except in the case of fraud or a breach of this Agreement, Buyer shall indemnify, defend, and hold harmless the Group Companies and their respective Representatives from and against any and all losses, damages, awards, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecution, investigation, defense or settlement of any of the foregoing) and other amounts suffered or incurred by them in connection with (i) any action taken by them at the request of Buyer pursuant to this Section 8.11 or in connection with the arrangement of the Debt Financing or (ii) any information utilized in connection therewith, and the foregoing obligations shall survive termination of this Agreement and the occurrence of the Closing. In addition, no action, liability or obligation of the Company, any of the Company Subsidiaries or any of their respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to any Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) will be effective until the Closing Date. All material, non-public information regarding the Group Companies provided to Buyer or any of its Representatives pursuant to this Section 8.11 shall be kept confidential by them in accordance with the Confidentiality Agreement except for disclosure to potential investors as required in connection with the Debt Financing subject to customary confidentiality protections. Notwithstanding anything to the contrary, the Company shall be deemed to have complied with this Section 8.11 for all purposes of this Agreement (including Article 6 and Article 7) unless the Debt Financing has not been obtained primarily as a result of the Company’s Willful Breach of its obligations under this Section 8.11. Notwithstanding anything herein to the contrary, Xxxxx acknowledges and agrees that obtaining any Debt Financing is not a condition to the Closing.
Appears in 4 contracts
Samples: Share Purchase Agreement (Revelyst, Inc.), Share Purchase Agreement (Outdoor Products Spinco Inc.), Share Purchase Agreement (Outdoor Products Spinco Inc.)
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion During the period commencing with the execution and delivery of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (x) provide Seller and the Company with written notice that such Debt Financing has been obtained and (y) deliver (or cause to be delivered) to Seller and the Company true, correct and complete copies of all arrangements pursuant to which any Financing Parties shall have committed to provide any portion of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further that, in no event shall the receipt of such Debt Financing be a condition to Closing and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and continuing until the earlier to perform its obligations hereunder. Prior to occur of the Closing, subject termination of this Agreement pursuant to Section 8.11.210.1 and the Closing Date, the Company shall use reasonable best efforts toand Sellers shall, and shall use reasonable best efforts to cause the Company Subsidiaries and its and their respective Representatives to, in each case at Buyer’s sole expense, provide to Buyer such cooperation reasonably requested by Buyer that is reasonably necessary cooperate in arranging, obtaining and syndicating the Debt Financing, if any (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere connection with the operations arrangement of the Group Companies), including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies Financing as may be reasonably requested by Buyer for Buyer. Such cooperation by the completion Company and Sellers shall include, at the reasonable request of Buyer:
(a) agreeing to enter into such agreements, and to use its commercially reasonable efforts to deliver such officer’s certificates of the Debt FinancingCompany, as are reasonably required and customary in financings of such type and as are, in the good faith determination of the persons executing such officer’s certificates, accurate, and agreeing to pledge, grant security interests in, and otherwise grant liens on, the Company’s assets pursuant to such agreements as may be reasonably requested;
(b) participating providing to Buyer’s Financing sources financial and other information relevant to Buyer’s Financing in telephonic meetings the Company’s or Sellers’ possession or that is reasonably available or that the Company prior to the date hereof in the ordinary course of business would have produced (and otherwise reasonably assisting in accordance with the preparation of appropriate and customary materials customary presentations, due diligence sessions timeframe in which such information would have been produced) (including accounting due diligence sessions) audited and sessions with rating agencies unaudited financial statements as of and for periods both before and after the date hereof, provided that such financial statements shall be provided in connection a manner as is consistent with the Debt Financing to the extent reasonable and customary for financings of such typeCompany’s existing practices), (c) reasonably assisting in the preparation of (i) customary bank any pro forma financial information memorandaor projections, lender making the Company’s senior officers available at reasonable times and investor presentations, offering documents, offering or private placement memoranda for a reasonable number of meetings to assist Buyer’s Financing sources; provided that the Company’s senior officers shall be required to participate in no more than one marketing session and other similar marketing documents and one due diligence efforts session;
(c) assisting Buyer and its counsel with information required for the Debt Financing and (ii) customary authorization and representation letters, each as legal opinions required to be delivered in connection with the Debt Financing, authorizing the distribution of information to prospective lenders therewith and containing a representation that the public side of such documents, if any, do not include cooperating in obtaining any information about any Group Company or any securities of any Group Company that would constitute material non-public information within the meaning of the United States federal and state securities laws if any Group Company were a public reporting company, necessary valuations; and
(d) using reasonable best efforts to cause the Company’s independent registered accounting firm to provide customary assistance, including (i) providing customary comfort letters (including “negative assurance comfort” furnishing all documentation and “change period comfort”) in connection with any capital markets transaction comprising a part of the Debt Financing, (ii) providing customary consents to the inclusion of their audit report in respect of any financial statements of other information about the Company and that the Company Subsidiaries in any offering documents relating to the Debt potential Financing and (iii) reasonable assistance and cooperation to Buyer with respect to any auditor due diligence, (e) subject to and conditioned on the occurrence of the Closing, the taking of customary corporate actions sources have reasonably necessary to permit the consummation of and funding of the Debt Financing, (f) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth in any definitive document relating to the Debt Financing to the extent satisfaction of such condition requires the cooperation of, or determined is within the control of, the Group Companies, (g) delivering to Buyer at least three (3) Business Days prior to the Closing all such documentation and information as is reasonably requested in writing by Buyer at least ten (10) Business Days prior to the Closing to the extent required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act and the requirements of 31 C.F.R. §1010.230, (h) facilitating and assisting in the preparation and delivery of any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents relating to the Debt Financing relating to the Group Companies, and their respective businesses to be included in the definitive documents relating to the Debt Financing, and assist with the execution and delivery of the same, in each case, solely to the extent reasonable and customary for financings of such type, (i) cooperating with internal and external counsel of Buyer 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 Debt Financing, in each case, solely to the extent reasonable and customary for financings of such type, and (j) obtaining and providing documents to Buyer (including draft payoff letters) relating to the repayment of the Indebtedness and the release of related guarantees and Liens in accordance with the terms of this Agreement. The Company hereby consents, on behalf of itself and the Group Companies, to the use of the logos of the Group Companies in connection with the Debt Financing; provided that such logos are used solely in a manner that is not intended to, nor is reasonably likely to, harm or disparage the Company’s or any of its Affiliates’ reputation or goodwill.
8.11.2. Notwithstanding anything in this Agreement to the contrary, (a) no Group Company nor any of their respective Representatives shall be required, under the provisions of this Section 8.11 or otherwise in connection with the Debt Financing, to pay any commitment or other similar fee or enter into any binding agreement (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) or commitment or incur any other actual or potential liability or obligation in connection with the Debt Financing prior to the Closing that is not advanced by Buyer, (b) no Group Company or any of their respective Representatives, managers, officers or employees shall be required to execute or enter into, perform or authorize any agreement with respect to the Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) that is not contingent upon the Closing or that would be effective prior to the Closing Date, (c) no Representative, manager, officer or employee of any Group Company shall be required to deliver any certificate or take any other action pursuant to this Section 8.11 to the extent any such action would reasonably be expected to result in personal liability to such Representative, manager, officer or employee, (d) no Group Company or their respective Representatives shall be required to take any action that would reasonably be expected, in the reasonable judgment of the Company, to conflict with, or result in any violation or breach of, any applicable Laws, any organizational documents of any Group Company, any contract or obligations of confidentiality (not created in contemplation hereof) binding on any Group Company, (e) no Group Company or any of their respective Representatives shall be required to take any action that would cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement, (f) no Group Company or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, the Company has, in its good faith, determined is not true, (g) no Group Companies or their respective Representatives shall be required to provide, and the Buyer will be solely responsible for the preparation of: (1) pro forma financial information; (2) any description of all or any component of the Debt Financing; or (3) projections, risk factors or other forward-looking statements relating to all or any component of the Debt Financing; and (h) no Group Company shall be required to provide access to or disclose information that the Company determines would jeopardize any attorney–client privilege or other similar privilege of the Company or any of its Subsidiaries. Promptly upon request by the Company, Xxxxx will reimburse the Company for any reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Company, the Company Subsidiaries or any of their Representatives in connection with the cooperation of the Company, the Company Subsidiaries and their Representatives contemplated by this Section 8.11. Except in the case of fraud or a breach of this Agreement, Buyer shall indemnify, defend, and hold harmless the Group Companies and their respective Representatives from and against any and all losses, damages, awards, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecution, investigation, defense or settlement of any of the foregoing) and other amounts suffered or incurred by them in connection with (i) any action taken by them at the request of Buyer pursuant to this Section 8.11 or in connection with the arrangement of the Debt Financing or (ii) any information utilized in connection therewith, and the foregoing obligations shall survive termination of this Agreement and the occurrence of the Closing. In addition, no action, liability or obligation of the Company, any of the Company Subsidiaries or any of their respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to any Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) will be effective until the Closing Date. All material, non-public information regarding the Group Companies provided to Buyer or any of its Representatives pursuant to this Section 8.11 shall be kept confidential by them in accordance with the Confidentiality Agreement except for disclosure to potential investors as required in connection with the Debt Financing subject to customary confidentiality protections. Notwithstanding anything to the contrary, the Company shall be deemed to have complied with this Section 8.11 for all purposes of this Agreement (including Article 6 and Article 7) unless the Debt Financing has not been obtained primarily as a result of the Company’s Willful Breach of its obligations under this Section 8.11. Notwithstanding anything herein to the contrary, Xxxxx acknowledges and agrees that obtaining any Debt Financing is not a condition to the Closing.
Appears in 3 contracts
Samples: Merger Agreement (Pacific Ethanol, Inc.), Merger Agreement (MGP Ingredients Inc), Merger Agreement (Seacor Holdings Inc /New/)
Financing Cooperation. 8.11.1. Buyer may determine(a) Prior to Closing, the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to provide (or cause its Subsidiaries to provide) such cooperation in its sole discretionconnection with any debt, to obtain equity or equity-linked financing deemed necessary or appropriate by Parent, including, among other things, any debt or equity financing to fund any portion of be incurred or contemplated to be incurred in connection with the Purchase Price Transactions as reasonably requested by Parent (collectively, the “Debt Financing”); provided that the Buyer shallCompany shall in no event be required to provide (or cause its Subsidiaries to provide) such assistance that shall unreasonably interfere with its or its Subsidiaries’ business operations. Such assistance shall include using reasonable best efforts to do the following, each of which shall be promptly upon Xxxxxx’s written request with reasonable prior notice and at Parent’s sole cost and expense:
(i) (A) furnish, or cause to be furnished to, Parent (x) the audited consolidated balance sheets, statements of cash flows and statements of operations of the Acquired Companies as of and for the most recently completed fiscal year ended at least 90 days prior to the Closing Date, (y) the unaudited consolidated balance sheets and related statements of income and cash flows of the Acquired Companies for each fiscal quarter (other than the fourth fiscal quarter) and related six-month period or nine-month period, as applicable, ended after the most recent fiscal year ended at least 45 days prior to the Closing Date and the comparable prior year three-month, six-month or nine-month period, as applicable and (z) any other financial data and other financial information regarding the Acquired Companies (1) that is reasonably requested by Parent in connection with Parent’s preparation of pro forma financial statements (giving effect to the Transactions and other appropriate matters), (2) that would be of the type and form that are customarily included in offerings or placements of securities or (3) that would otherwise be of the type, form and substance reasonably necessary for an investment bank to receive customary comfort from auditors (including “negative assurance” comfort and change period comfort), (B) inform Parent if the chief executive officer, chief financial officer, treasurer or controller of the Company has knowledge of any facts as a result of which a restatement of any of the Acquired Companies’ financial statements provided pursuant to clause (A) hereto, in order for such financial statements to comply with GAAP, is necessary, in each case, reasonably promptly after such Debt Financing is obtained officer obtains notice thereof and (C) with respect to such Acquired Companies’ financial statements provided pursuant to clause (A) hereto, updating such financial statements (x) provide Seller and to the Company with written notice that extent necessary to permit a registration statement filed by Parent using such Debt Financing has been obtained financial statements to be declared effective by the SEC and (y) deliver (or cause to be delivered) to Seller and the Company true, correct and complete copies of all arrangements pursuant to which any Financing Parties shall have committed to provide any portion of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further that, in no event shall the receipt of such Debt Financing be a condition to Closing and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. Prior to the Closing, subject to Section 8.11.2, the Company shall use reasonable best efforts to, and shall use reasonable best efforts to cause the Company Subsidiaries and its and their respective Representatives to, in each case at Buyer’s sole expense, provide to Buyer such cooperation extent reasonably requested by Buyer that is reasonably necessary the Acquired Companies’ independent auditors to issue a customary comfort letter (in arranging, obtaining accordance with its normal practices and syndicating the Debt Financing, if any procedures and including negative assurance);
(provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the operations ii) make senior management of the Group Companies)Company available to assist in the preparation of customary presentations, including marketing materials, offering and private placement documents and rating agency presentations, as promptly well as a customary confidential information memorandum and authorization letters in connection therewith, and participate in road shows, drafting and due diligence sessions and meetings with rating agencies;
(iii) deliver to Parent the Financing Deliverables;
(iv) make senior management of the Company available to reasonably practicalparticipate and cooperate with Parent in (A) the negotiation of the Financing Documents and reasonably facilitate the satisfaction of any conditions precedent therein, (aB) furnishing Buyer with the Required Financial Information preparation of prospectuses, offering memoranda, investor presentations and other pertinent customary marketing materials in connection with any Financing and marketing and syndication efforts thereof solely with respect to business and financial information regarding relating to the Group Acquired Companies as may be reasonably requested by Buyer for the completion of the Debt Financing, (b) participating in telephonic meetings Parent or its Financing Sources and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies in connection with the Debt Financing to the extent reasonable and customary for financings of such type, (c) reasonably assisting in the preparation of (i) customary bank information memoranda, lender and investor presentations, offering documents, offering or private placement memoranda and other similar marketing documents and due diligence efforts for the Debt Financing sort contemplated to be incurred by Parent and (iiC) reasonable and customary authorization due diligence, in each case, with or by the Financing Sources (or prospective lenders or investors in any bank or capital markets Financing) at mutually agreed times and representation letters, each as required places;
(v) cause the Acquired Companies’ current independent accountants to provide customary assistance and cooperation in connection with the Debt any Financing, authorizing the distribution of information to prospective lenders and containing a representation that the public side of such documents, if any, do not include any information about any Group Company or any securities of any Group Company that would constitute material non-public information within the meaning of the United States federal and state securities laws if any Group Company were a public reporting company, (d) including using reasonable best efforts to cause such accountants to (A) participate in a reasonable number of drafting sessions and accounting due diligence sessions upon reasonable advance notice and at mutually agreed times and places, (B) provide any necessary customary written consents to use their audit reports relating to the Company’s independent registered accounting firm Acquired Companies and to be named as an “Expert” in documents as are customary and (C) provide any customary assistance, including (i) providing customary “comfort letters letters” (including “customary negative assurance comfort” and “, including change period comfort”) with respect to financial information relating to the Acquired Companies as reasonably requested by Parent or its Financing Sources and to the extent customary for Financings of the sort contemplated to be incurred by Parent; and
(vi) assist Parent and/or any Merger Sub with any filings, at the Parent’s sole expense, required to be made with the SEC or any other administrative authority in order to consummate the Transactions and any Financing (which assistance shall be limited to information with respect to the Acquired Companies), including to deliver to Parent any underlying information with respect to the Acquired Companies required for Parent and/or any Merger Sub to make any required filings with the SEC in connection with the Transactions and any Financing (to the extent reasonably requested by Parent or its Financing Sources and to the extent customary for Financings of the sort contemplated to be incurred by Xxxxxx); provided that (A) neither the Company nor any of its Affiliates will be required to make any filings with the SEC in connection with any capital markets transaction comprising a part Financing (other than in any applicable proxy statement), (B) nothing in this Section 6.17 shall require any such action to the extent it would (x) unreasonably interfere with the business or operations of the Debt FinancingAcquired Companies or require the Acquired Companies to agree to pay any fees, (ii) providing customary consents to the inclusion of their audit report in respect of reimburse any financial statements of the Company and the Company Subsidiaries expenses or give any indemnities, in any offering documents relating case, that would be effective prior to the Debt Financing and (iii) reasonable assistance and cooperation to Buyer with respect to any auditor due diligence, (e) subject to and conditioned on the occurrence of the Closing, or for which Parent does not promptly reimburse or indemnify it, as the taking of customary corporate actions reasonably necessary to permit the consummation of and funding of the Debt Financingcase may be, (f) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth in any definitive document relating to the Debt Financing to the extent satisfaction required under this Agreement or (y) require any of such condition requires the cooperation ofAcquired Companies or their respective Representatives or Financing Sources to execute, deliver or enter into, or perform any financing document that is within the control of, the Group Companies, (g) delivering contemplated to Buyer at least three (3) Business Days be effective prior to the Closing all such documentation and information as is reasonably requested (other than the authorization letters referred to in writing by Buyer at least ten clause (10ii) Business Days above), (C) none of the general partners or board of directors (or other similar governing body) or committee or subcommittee thereof of any Acquired Company shall be required to adopt resolutions approving the Financing Documents that are contemplated to be effective prior to the Closing (and any such adoption or approval at Closing shall be performed by such general partner, board of directors (or other similar governing body) or committee or subcommittee thereof as constituted after the Effective Time and Closing), (D) nothing in this Section 6.17 shall require any change in the Company’s or any of its Subsidiaries’ fiscal years and (E) none of the Acquired Companies shall be required to provide any information or take any action to the extent required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulationsit would (1) violate Applicable Law (provided that, including the PATRIOT Act and the requirements of 31 C.F.R. §1010.230, (h) facilitating and assisting in the preparation and delivery of any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents relating to the Debt Financing relating to the Group Companies, and their respective businesses to be included in the definitive documents relating to the Debt Financing, and assist with the execution and delivery of the same, in each case, solely to the extent reasonable and customary for financings possible, the parties shall cooperate in good faith to permit disclosure of such typeinformation or to permit such action in a manner that preserves compliance with Applicable Law), (i2) cooperating with internal and external counsel of Buyer in connection with providing customary backviolate any attorney-up certificates and factual information regarding any legal opinion that such counsel may be required to deliver in connection with the Debt Financingclient or work-product privilege or similar protection (provided that, in each case, solely to the extent reasonable and customary for financings possible, the parties shall cooperate in good faith to permit disclosure of such typeinformation or to permit such action in a manner that preserves such privilege or similar protection), (3) violate any applicable confidentiality obligation of any Acquired Company that is binding with respect to such information, and for which consent to disclosure has not been obtained (j) obtaining and providing documents to Buyer (including draft payoff letters) relating provided that, to the repayment extent possible, the parties shall cooperate in good faith to permit disclosure of the Indebtedness and the release of related guarantees and Liens such information or to permit such action in accordance a manner that preserves compliance with the such confidentiality obligation), (4) require any Acquired Company to waive or amend any terms of this Agreement. The , (5) constitute a default under, or give rise to any right of termination, cancellation or acceleration of any right or obligation of such Acquired Company hereby consentsor to a loss of any benefit to which such Acquired Company is entitled under any provision of any agreement or other instrument binding upon such Acquired Company, (6) result in the creation or imposition of any Lien on behalf any asset of itself and the Group Companies, to the use such Acquired Company (except any Lien on any of the logos of Acquired Companies’ respective assets that becomes effective only upon the Group Companies Closing), (7) result in connection with the Debt Financing; provided that such logos are used solely in a manner that is not intended to, nor is reasonably likely to, harm or disparage the any Acquired Company’s or any of its Affiliates’ reputation directors, managers, officers, general or goodwilllimited partners, employees, counsel, financial advisors, auditors, agents and other authorized representatives incurring any personal liability with respect to any matters relating to any financing or (8) directly result in any condition to Closing set forth in Article VII to fail to be satisfied by the End Date or otherwise directly result in a breach of this Agreement by any Acquired Company.
8.11.2(b) To the extent identifying any of the Acquired Companies by name, the Company shall have the right to review and comment on marketing materials used in connection with the arrangement of any Financing prior to the dissemination of such materials to potential Financing Sources or other counterparties to any proposed financing transaction (or filing with any Governmental Authority); provided that the Company shall communicate in writing its comments, if any, to Parent and its counsel within a reasonable period of time under the circumstances and consistent with the time accorded to other participants who were asked to review and comment on such marketing materials. Notwithstanding The Company shall not be required to agree to any contractual obligation of the Company relating to any financing that is not conditioned upon the Closing and that does not terminate without liability to the Company and its Affiliates (other than liability resulting from customary circumstances such as breach of any obligation of the Company and its Affiliates, bad faith, willful misconduct, fraud or gross negligence) upon the termination of this Agreement. The Company shall not be required to deliver or cause the delivery of any legal opinions, authorization and representation letters or solvency certificates in connection with any financing, except the authorization letters set forth in clause (a) above. In addition, the parties hereto agree that, notwithstanding anything in this Agreement herein to the contrary, (a) no Group Company any information with respect to the prospects and projections for the Acquired Companies in connection with any financing will be the sole responsibility of Parent, and neither the Acquired Companies nor any of their respective Representatives Affiliates, directors, managers, officers, general or limited partners, employees, counsel, financial advisors, auditors, agents and other authorized representatives, shall be required, under the provisions of this Section 8.11 or otherwise in connection with the Debt Financing, to pay have any commitment or other similar fee or enter into any binding agreement (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) or commitment liability or incur any other actual damages with respect thereto or potential liability or obligation in connection with the Debt Financing prior to the Closing that is not advanced by Buyer, (b) no Group Company or any of their respective Representatives, managers, officers or employees shall be required to execute provide any projections or enter into, perform information or authorize make any agreement presentations with respect to capital structure or other pro forma information relating thereto or the Debt Financing (other than manner in which Parent intends to operate, or cause to be operated, the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) that is not contingent upon Acquired Companies after the Closing or (provided that would be effective prior to Closing, the Closing Date, (c) no Representative, manager, officer or employee of Company may reasonably be requested to provide such historical and other underlying financial information as Parent may require to assemble any Group Company shall be required to deliver any certificate or take any such presentations and other action pursuant to this Section 8.11 pro forma information to the extent any such action would reasonably required by the Financing Sources; provided, further, that the Company shall not be expected to result in personal liability to such Representative, manager, officer or employee, (d) no Group Company or their respective Representatives shall be required to take any action that would reasonably be expected, in the reasonable judgment of the Company, to conflict with, or result responsible in any violation or breach of, any applicable Laws, any organizational documents of any Group Company, any contract or obligations of confidentiality (not created in contemplation hereof) binding on any Group Company, (e) no Group Company or any of their respective Representatives shall be required to take any action that would cause any condition manner for information relating to the Closing set forth herein to not be satisfied proposed debt and equity capitalization that is required for such presentations or otherwise cause any breach of this Agreement, (f) no Group Company or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, the Company has, in its good faith, determined is not true, (g) no Group Companies or their respective Representatives shall be required to provide, and the Buyer will be solely responsible for the preparation of: (1) other pro forma financial information; ).
(2c) any description of all or any component of the Debt Financing; or (3) projections, risk factors or other forward-looking statements relating to all or any component of the Debt Financing; and (h) no Group Company Parent shall be required to provide access to or disclose information that the Company determines would jeopardize any attorney–client privilege or other similar privilege of the Company or any of its Subsidiaries. Promptly upon request by the Company, Xxxxx will reimburse the Company for any reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Company, the Company Subsidiaries or any of their Representatives in connection with the cooperation of the Company, the Company Subsidiaries and their Representatives contemplated by this Section 8.11. Except in the case of fraud or a breach of this Agreement, Buyer shall indemnify, defend, indemnify and hold harmless the Group Companies Acquired Companies, and each of their respective Representatives Representatives, from and against any and all reasonable and documented out-of-pocket costs or expenses (including reasonable and documented out-of-pocket attorneys’ fees of no more than one (1) primary firm of outside counsel to the Acquired Companies, taken as a whole), judgments, fines, losses, claims, damages, awards, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all liabilities or amounts paid in prosecution, investigation, defense or settlement of any of the foregoing) and other amounts that are suffered or incurred by them in connection with (i) any action taken by them at the request of Buyer pursuant to this Section 8.11 or in connection with the arrangement of the Debt contemplated Financing or (ii) any information utilized information, assistance or activities provided in connection therewith, and the foregoing obligations shall survive termination except in instances of this Agreement and the occurrence gross negligence, fraud or willful misconduct of the ClosingAcquired Companies or their representatives as finally determined in a non-appealable judgment by a court of competent jurisdiction. In addition, no action, liability or obligation of Parent shall promptly reimburse the Company, Acquired Companies for any of and all documented out-of-pocket Third Party costs and expenses incurred by the Company Subsidiaries or any Acquired Companies and each of their respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to any Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) will be effective until the Closing Date. All material, non-public information regarding the Group Companies provided to Buyer or any of its Representatives pursuant to this Section 8.11 shall be kept confidential by them in accordance with the Confidentiality Agreement except for disclosure to potential investors as required in connection with the Debt Financing subject to customary confidentiality protections. any such financing or such assistance.
(d) Notwithstanding anything to the contrarycontrary herein, it is understood and agreed that the Company condition precedent set forth in Section 7.02(b), as applied to the Company’s obligations under this Section 6.17, shall be deemed to have complied with this Section 8.11 for all purposes of this Agreement (including Article 6 and Article 7) be satisfied unless the Debt Financing applicable financing has not been obtained primarily as a direct result of the Company’s Willful Breach of its obligations under this Section 8.11. Notwithstanding anything herein to the contrary, Xxxxx acknowledges and agrees that obtaining any Debt Financing is not a condition to the Closing6.17.
Appears in 3 contracts
Samples: Merger Agreement (Sculptor Capital Management, Inc.), Merger Agreement (Rithm Capital Corp.), Merger Agreement (Sculptor Capital Management, Inc.)
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (x) provide Seller and the Company with written notice that such Debt Financing has been obtained and (y) deliver (or cause to be delivered) to Seller and the Company true, correct and complete copies of all arrangements pursuant to which any Financing Parties shall have committed to provide any portion of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further that, in no event shall the receipt of such Debt Financing be a condition to Closing and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. Prior to the Closing, subject to Section 8.11.2, the Company shall use reasonable best efforts to, and shall use reasonable best efforts to cause the Company Subsidiaries and its and their respective Representatives to, in each case at Buyer’s sole expense, provide to Buyer such cooperation reasonably requested by Buyer that is reasonably necessary in arranging, obtaining and syndicating the Debt Financing, if any (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the operations of the Group Companies), including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information and other pertinent If New Cotai requires any information regarding the Group Companies as may be reasonably requested by Buyer for the completion of the Debt Financing, (b) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentations, due diligence sessions (including accounting due diligence sessionsfinancial information) and sessions with rating agencies relating to a Group Company in connection with the Debt Financing New Cotai Financing, New Cotai may request MCE for that information and MCE shall use its commercially reasonable endeavors to provide such information, or procure the provision of such information by a Group Company, to such persons and subject to such conditions that are reasonable under the circumstances having regard to the extent information requested, the purpose of the information requested and its intended use and subject to clause 4(c) below. Such conditions may include the entry into a confidentiality agreement by the recipient on reasonable and customary for financings terms (and in any event on terms no more onerous to them than the terms of such type, the Confidentiality Deed).
(cb) reasonably assisting in the preparation of (i) customary bank information memoranda, lender and investor presentations, offering documents, offering If New Cotai requires any cooperation or private placement memoranda and other similar marketing documents and due diligence efforts for the Debt Financing and (ii) customary authorization and representation letters, each as required assistance from Group Company personnel in connection with the Debt New Cotai Financing, authorizing including but not limited to, making senior management reasonably available for management meetings with prospective investors or lenders in Hong Kong and cooperating with prospective investors or lenders in performing their due diligence, New Cotai may request the distribution of information Group Company for that cooperation and assistance (with notice to prospective lenders MCE) and containing a representation MCE shall use its commercially reasonable endeavors to procure such cooperation and assistance, subject to such conditions that are reasonable under the public side circumstances having regard to the cooperation or assistance required, the purpose of such documentscooperation and assistance and subject to clause 4(c) below.
(c) Despite clauses 4(a) and 4(b) above, if anyMCE shall not be required to provide information, do not include any information about cooperation or assistance, or to cause any Group Company to so provide, in connection with the New Cotai Financing, to the extent that:
(i) to do so would violate any applicable law, order, regulation or any securities rule, including the rules of any Group Company that would constitute stock exchange on which MCE’s securities are listed at the relevant time; or
(ii) such information, cooperation or assistance is requested during a share trading black out period of MCE or its affiliates, and the cooperation and assistance (including the provision of any information) could reasonably be expected to lead to disclosure of material non-public price sensitive information within of MCE or its affiliates, or the meaning cooperation or assistance could reasonably be expected to lead to a request for the provision of, or a query in connection with, any material price sensitive information of the United States federal and state securities laws if any Group Company were a public reporting company, MCE or its affiliates.
(d) using reasonable best efforts New Cotai shall, promptly upon request by MCE, reimburse MCE and, to cause the Company’s independent registered accounting firm to provide customary same extent (if any) as MCE reimburses the Group for similar assistance, including (i) providing customary comfort letters (including “negative assurance comfort” each relevant Group Company for all reasonable and “change period comfort”) documented out-of-pocket costs and expenses incurred by MCE or the relevant Group Company in connection with any capital markets transaction comprising a part of the Debt Financing, (iiinformation provided for in clause 4(a) providing customary consents to the inclusion of their audit report or any cooperation and assistance provided for in respect of any financial statements of the Company and the Company Subsidiaries in any offering documents relating to the Debt Financing and (iiiclause 4(b) reasonable assistance and cooperation to Buyer with respect to any auditor due diligence, above.
(e) subject to and conditioned on the occurrence of the Closing, the taking of customary corporate actions reasonably necessary to permit the consummation of and funding of the Debt Financing, (f) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth in any definitive document relating to the Debt Financing to the extent satisfaction of such condition requires the Any cooperation ofor assistance or information provided by MCE, or is within the control of, the Group Companies, (g) delivering to Buyer at least three (3) Business Days prior to the Closing all such documentation and information as is reasonably requested in writing procured by Buyer at least ten (10) Business Days prior to the Closing to the extent required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act and the requirements of 31 C.F.R. §1010.230, (h) facilitating and assisting in the preparation and delivery of any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents relating to the Debt Financing relating to the Group Companies, and their respective businesses to be included in the definitive documents relating to the Debt Financing, and assist with the execution and delivery of the same, in each case, solely to the extent reasonable and customary for financings of such type, (i) cooperating with internal and external counsel of Buyer 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 Debt Financing, in each case, solely to the extent reasonable and customary for financings of such type, and (j) obtaining and providing documents to Buyer (including draft payoff letters) relating to the repayment of the Indebtedness and the release of related guarantees and Liens in accordance with the terms of this Agreement. The Company hereby consents, MCE on behalf of itself and the Group Companies, to the use of the logos of the Group Companies in connection with the Debt Financing; provided that such logos are used solely in a manner that is not intended to, nor is reasonably likely to, harm or disparage the Company’s or any of its Affiliates’ reputation or goodwill.
8.11.2. Notwithstanding anything in this Agreement to the contrary, (a) no Group Company nor any of their respective Representatives shall be required, under the provisions of this Section 8.11 or otherwise in connection with the Debt Financing, to pay any commitment or other similar fee or enter into any binding agreement (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) or commitment or incur any other actual or potential liability or obligation in connection with the Debt Financing prior to the Closing that is not advanced by Buyer, (b) no Group Company or any of their respective Representatives, managers, officers or employees shall be required to execute or enter into, perform or authorize any agreement with respect to the Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) that is not contingent upon the Closing or that would be effective prior to the Closing Date, (c) no Representative, manager, officer or employee of any Group Company shall be required to deliver any certificate or take any other action pursuant to this Section 8.11 to the extent any such action would reasonably be expected to result in personal liability to such Representative, manager, officer or employee, (d) no Group Company or their respective Representatives shall be required to take any action that would reasonably be expected, in the reasonable judgment of the Company, to conflict with, or result in any violation or breach of, any applicable Laws, any organizational documents of any Group Company, under this clause 4 is provided on a no liability basis, and New Cotai agrees to indemnify MCE and any contract Group Company from any claim or obligations loss suffered or incurred by MCE or any Group Company arising from, or in connection with:
(i) any cooperation or assistance provided by Group Company personnel under this clause 4;
(ii) any statements made or information provided by MCE or any Group Company to New Cotai under this clause 4 (including where any statements or information are relied upon in any document or representations made in connection with the New Cotai Financing);
(iii) any documentation prepared in connection with the New Cotai Financing;
(iv) any breach of confidentiality this clause 4 by New Cotai;
(v) any breach of any law, order, regulation or rule, including the rules of any stock exchange that is a direct result of a breach of this clause 4 by New Cotai; or
(vi) any breach of any securities law by New Cotai in connection with the New Cotai Financing.
(f) Despite clause 4(e), New Cotai will not created in contemplation hereof) binding on be liable to MCE or any Group Company, (e) no Group Company or any of their respective Representatives shall nor will MCE be required to take any action that would cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreementrelieved from liability, (f) no Group Company or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, the Company has, in its good faith, determined is not true, (g) no Group Companies or their respective Representatives shall be required to provide, and the Buyer will be solely responsible for the preparation of: (1) pro forma financial information; (2) any description of all or any component of the Debt Financing; or (3) projections, risk factors or other forward-looking statements relating to all or any component of the Debt Financing; and (h) no Group Company shall be required to provide access to or disclose information that the Company determines would jeopardize any attorney–client privilege or other similar privilege of the Company or any of its Subsidiaries. Promptly upon request by the Company, Xxxxx will reimburse the Company for any reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Company, the Company Subsidiaries or any of their Representatives in connection with the cooperation of the Companyany claim or loss arising from, the Company Subsidiaries and their Representatives contemplated by this Section 8.11. Except in the case of fraud or a breach of this Agreement, Buyer shall indemnify, defend, and hold harmless the Group Companies and their respective Representatives from and against any and all losses, damages, awards, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecution, investigation, defense or settlement of any of the foregoing) and other amounts suffered or incurred by them in connection with with:
(i) the fraud of MCE or any action taken by them at the request of Buyer pursuant to this Section 8.11 or in connection with the arrangement of the Debt Financing or Group Company; or
(ii) any information utilized in connection therewith, and the foregoing obligations shall survive termination act or omission of MCE or any Group Company that amounts to gross negligence or wilfully misleading or deceptive conduct.
(g) The provisions of this Agreement and the occurrence of the Closing. In addition, no action, liability or obligation of the Company, any of the Company Subsidiaries or any of their respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to any Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) will be effective until the Closing Date. All material, non-public information regarding the Group Companies provided to Buyer or any of its Representatives pursuant to this Section 8.11 4 shall be kept confidential by them in accordance with the Confidentiality Agreement except for disclosure to potential investors as required in connection with the Debt Financing subject to customary confidentiality protections. Notwithstanding anything apply only to the contrary, the Company shall be deemed to have complied with this Section 8.11 for all purposes extent of this Agreement (including Article 6 and Article 7) unless the Debt Financing has not been obtained primarily as a result of the Company’s Willful Breach of its obligations under this Section 8.11. Notwithstanding anything herein to the contrary, Xxxxx acknowledges and agrees any cooperation or assistance or information that obtaining any Debt Financing New Cotai is not a condition already entitled to receive under the ClosingShareholders’ Agreement.
Appears in 3 contracts
Samples: Shareholders’ Agreement (STUDIO CITY INTERNATIONAL HOLDINGS LTD), Shareholders’ Agreement (STUDIO CITY INTERNATIONAL HOLDINGS LTD), Shareholders’ Agreement (Melco Crown Entertainment LTD)
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (xa) provide Seller and the Company with written notice that such Debt Financing has been obtained and (y) deliver (or cause to be delivered) to Seller and the Company true, correct and complete copies of all arrangements pursuant to which any Financing Parties shall have committed to provide any portion of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further that, in no event shall the receipt of such Debt Financing be a condition to Closing and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. Prior to the Closing, subject to Section 8.11.2Closing Date, the Company shall, and shall use reasonable best efforts cause its Subsidiaries to, and shall use reasonable best efforts to cause the Company Subsidiaries and direct its and their respective Representatives to, in each case at Buyer’s sole expensecase, use reasonable best efforts to provide to Buyer such all cooperation reasonably requested by Buyer that is Parent in connection with Parent’s financing arrangements for long term debt for borrowed money, as Parent may reasonably determine necessary in arrangingor advisable. Such cooperation shall include, obtaining and syndicating to the Debt Financing, if any (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the operations of the Group Companies), including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies as may be extent reasonably requested by Buyer for the completion Parent, using reasonable best efforts to furnish Parent and any of the Debt Financing, its financing sources with (b) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies in connection with the Debt Financing to the extent reasonable and customary for financings of such type, (c) reasonably assisting in the preparation of (i) customary bank information memoranda, lender and investor presentations, offering documents, offering or private placement memoranda and other similar marketing documents and due diligence efforts for the Debt Financing and (iiA) customary authorization and representation lettersletters in connection with such financing arrangements in form and substance reasonably satisfactory to the Company, each as required (B) information with respect to the Company and its Subsidiaries reasonably requested by Parent or any of its financing sources to facilitate such financing arrangements, including reasonably assisting Parent in connection with the Debt Financing, authorizing the distribution preparation of pro forma financial information to prospective lenders be included in any applicable offering document (provided nothing in this Agreement shall be deemed to require the Company to prepare any pro forma financial statements or projections, including pro forma cost savings, synergies, capitalization or other pro forma adjustments desired to be incorporated into any pro forma financial information) and containing a representation (C) such other customary financial information that may reasonably be requested by Parent; provided that in no case shall the public side Company or its Subsidiaries or its Representatives be obligated to provide any financial information with respect to the Company and its Subsidiaries that is publicly available. The Company shall, promptly upon written request of such documentsby the Company, if any, do not include be reimbursed by Parent for any information about any Group reasonable and documented expenses incurred or otherwise payable by the Company or any securities of its Subsidiaries or its Representatives in connection with its cooperation and other obligations pursuant to this Section 5.23.
(b) Notwithstanding the foregoing, the Company and its Subsidiaries and their respective Representatives shall not be required to enter into any Group agreement, document, certificate or instrument pursuant to this Section 5.23 (other than customary authorization and representation letters in form and substance reasonably satisfactory to the Company in connection with the financing arrangements contemplated by Section 5.23(a)) that would constitute material non-public information within will be effective prior to the meaning of the United States federal Closing and state securities laws if any Group Company were a public reporting company, (d) using reasonable best efforts to cause the Company’s independent registered accounting firm to provide customary assistance, including nothing in this Section 5.23 shall require (i) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) in connection such cooperation to the extent it would unreasonably interfere with any capital markets transaction comprising a part the business or operations of the Debt FinancingCompany or any of its Subsidiaries or require any of them to take any actions that would reasonably be expected to violate applicable law or any organizational document of the Company or any of its Subsidiaries, (ii) providing the Company or any of its Subsidiaries to pay or incur any commitment or other fee, cost or expense (other than customary consents expenses in connection with the cooperation described in this Section 5.23 that are promptly reimbursed by Parent) for which it is not indemnified hereunder, (iii) the Company or any of its Subsidiaries to incur any other liability or provide or agree to provide any indemnity for which it is not indemnified hereunder or that is not conditioned upon the inclusion Closing, (iv) the Company or any of their audit report its Subsidiaries to disclose any information (A) that is subject to attorney client or similar privilege or constitutes attorney work product, (B) the disclosure of which (x) is prohibited by any Company Material Contract not entered into for the purpose of qualifying for the exclusion in respect this clause (B) or (y) would cause the incurrence of any cost or expense not subject to reimbursement by Parent or any of its Subsidiaries pursuant to Section 5.23(a), (v) the Company or any of its Subsidiaries to cooperate in a manner that would cause any representation or warranty in this Agreement to be breached by the Company or any of its Subsidiaries, (vi) any director, officer or employee or stockholder of the Company or any of its Subsidiaries to incur any personal liability or (vii) the preparation of any financial statements that are not available to it and prepared in the ordinary course of its financial reporting practice.
(c) Parent shall indemnify and hold harmless the Company and the Company its Subsidiaries in and their respective Representatives from and against any offering documents relating to the Debt Financing and (iii) reasonable assistance all losses, claims, damages, liabilities and cooperation to Buyer with respect to any auditor due diligence, (e) subject to and conditioned on the occurrence of the Closing, the taking of customary corporate actions reasonably necessary to permit the consummation of and funding of the Debt Financing, (f) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth in any definitive document relating to the Debt Financing to the extent satisfaction of such condition requires the cooperation of, or is within the control of, the Group Companies, (g) delivering to Buyer at least three (3) Business Days prior to the Closing all such documentation and information as is reasonably requested in writing by Buyer at least ten (10) Business Days prior to the Closing to the extent required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulationsexpenses, including the PATRIOT Act reasonable and the requirements documented fees, charges and disbursements of 31 C.F.R. §1010.230counsel, (h) facilitating and assisting incurred by them in connection with, or as a result of, any actions taken pursuant to this Section 5.23, except in the preparation and delivery event such losses, claims, damages, liabilities or expenses arise out of (i) gross negligence, willful misconduct, fraud or bad faith by the Company or any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates of its Subsidiaries or other definitive documents relating to the Debt Financing relating to the Group Companies, and their respective businesses to be included in the definitive documents relating to the Debt Financing, and assist with the execution and delivery of the sameRepresentatives, in each case, solely as determined by a court of competent jurisdiction in a final and non-appealable judgment or (ii) the material inaccuracy of any written information (standing on its own) provided to Parent in writing by the Company or any of its Subsidiaries specifically for inclusion in any materials relating to Parent’s financing arrangements.
(d) The Company hereby consents to the extent reasonable use of its and customary for financings of such type, (i) cooperating with internal and external counsel of Buyer in connection with providing customary back-up certificates and factual information regarding any legal opinion that such counsel may be required to deliver its Subsidiaries’ logos in connection with the Debt Financing, in each case, solely to the extent reasonable and customary for financings of such type, and (j) obtaining and providing documents to Buyer (including draft payoff letters) relating to the repayment of the Indebtedness and the release of related guarantees and Liens in accordance with the terms of financing arrangements contemplated by this Agreement. The Company hereby consents, on behalf of itself and the Group Companies, to the use of the logos of the Group Companies in connection with the Debt Financing; provided that Section 5.23 so long as such logos are used solely in a manner that is not intended to, nor is or reasonably likely toto harm, harm disparage or disparage otherwise adversely affect the Company’s Company or any of its Affiliates’ Subsidiaries or the reputation or goodwillgoodwill of the Company or any of its Subsidiaries and its or their respective marks.
8.11.2. (e) Notwithstanding anything in this Agreement to the contrary, (a) contrary in no Group Company nor any of their respective Representatives event shall be required, under the provisions of this Section 8.11 receipt or otherwise in connection with the Debt Financing, to pay any commitment or other similar fee or enter into any binding agreement (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) or commitment or incur any other actual or potential liability or obligation in connection with the Debt Financing prior to the Closing that is not advanced by Buyer, (b) no Group Company or any of their respective Representatives, managers, officers or employees shall be required to execute or enter into, perform or authorize any agreement with respect to the Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) that is not contingent upon the Closing or that would be effective prior to the Closing Date, (c) no Representative, manager, officer or employee availability of any Group Company shall be required funds or financing by or to deliver any certificate or take any other action pursuant to this Section 8.11 to the extent any such action would reasonably be expected to result in personal liability to such Representative, manager, officer or employee, (d) no Group Company or their respective Representatives shall be required to take any action that would reasonably be expected, in the reasonable judgment of the Company, to conflict with, or result in any violation or breach of, any applicable Laws, any organizational documents of any Group Company, any contract or obligations of confidentiality (not created in contemplation hereof) binding on any Group Company, (e) no Group Company or any of their respective Representatives shall be required to take any action that would cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement, (f) no Group Company or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, the Company has, in its good faith, determined is not true, (g) no Group Companies or their respective Representatives shall be required to provide, and the Buyer will be solely responsible for the preparation of: (1) pro forma financial information; (2) any description of all or any component of the Debt Financing; or (3) projections, risk factors or other forward-looking statements relating to all or any component of the Debt Financing; and (h) no Group Company shall be required to provide access to or disclose information that the Company determines would jeopardize any attorney–client privilege or other similar privilege of the Company Parent or any of its Subsidiaries. Promptly upon request by the Company, Xxxxx will reimburse the Company for any reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Company, the Company Subsidiaries Affiliates or any of their Representatives in connection with the cooperation of the Company, the Company Subsidiaries and their Representatives contemplated by this Section 8.11. Except in the case of fraud or a breach of this Agreement, Buyer shall indemnify, defend, and hold harmless the Group Companies and their respective Representatives from and against any and all losses, damages, awards, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecution, investigation, defense or settlement of any of the foregoing) and other amounts suffered or incurred by them in connection with (i) any action taken by them at the request of Buyer pursuant to this Section 8.11 or in connection with the arrangement of the Debt Financing or (ii) any information utilized in connection therewith, and the foregoing obligations shall survive termination of this Agreement and the occurrence of the Closing. In addition, no action, liability or obligation of the Company, any of the Company Subsidiaries or any of their respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to any Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) will financing transaction be effective until the Closing Date. All material, non-public information regarding the Group Companies provided to Buyer or any of its Representatives pursuant to this Section 8.11 shall be kept confidential by them in accordance with the Confidentiality Agreement except for disclosure to potential investors as required in connection with the Debt Financing subject to customary confidentiality protections. Notwithstanding anything to the contrary, the Company shall be deemed to have complied with this Section 8.11 for all purposes of this Agreement (including Article 6 and Article 7) unless the Debt Financing has not been obtained primarily as a result of the Company’s Willful Breach of its obligations under this Section 8.11. Notwithstanding anything herein to the contrary, Xxxxx acknowledges and agrees that obtaining any Debt Financing is not a condition to the Closingany of Parent’s, Merger Sub’s or Merger LLC’s obligations hereunder.
Appears in 3 contracts
Samples: Merger Agreement (Charter Communications, Inc. /Mo/), Merger Agreement (Cco Holdings LLC), Merger Agreement (Liberty Broadband Corp)
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of (a) Following the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (x) provide Seller date hereof and the Company with written notice that such Debt Financing has been obtained and (y) deliver (or cause to be delivered) to Seller and the Company true, correct and complete copies of all arrangements pursuant to which any Financing Parties shall have committed to provide any portion of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further that, in no event shall the receipt of such Debt Financing be a condition to Closing and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. Prior prior to the Closing, subject to Section 8.11.2, the Company shall use reasonable best efforts toSeller shall, and shall use reasonable best efforts to cause each of the Company Subsidiaries and its Brand Companies and their respective Representatives to, in each case at Buyer’s sole expense, and employees to provide to Buyer Purchaser such cooperation reasonably requested by Buyer that is reasonably necessary in arranging, obtaining and syndicating the Debt Financing, if any (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the operations of the Group Companies), including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies as may be reasonably requested by Buyer for the completion of the Debt Financing, (b) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies in connection with the Debt Financing to the extent reasonable and customary for financings of such type, (c) reasonably assisting in the preparation of (i) customary bank information memoranda, lender and investor presentations, offering documents, offering or private placement memoranda and other similar marketing documents and due diligence efforts for the Debt Financing and (ii) customary authorization and representation letters, each as required Purchaser in connection with the Debt Financing, authorizing the distribution of information to prospective lenders and containing a representation that the public side of such documents, if any, do not include any information about any Group Company or any securities of any Group Company that would constitute material non-public information within the meaning of the United States federal and state securities laws if any Group Company were a public reporting company, (d) using reasonable best efforts to cause the Company’s independent registered accounting firm to provide customary assistance, including including:
(i) providing causing appropriate officers and employees of Seller and the Brand Companies to be available on a customary comfort letters (including “negative assurance comfort” basis to meet with prospective lenders, rating agencies and “change period comfort”investors in presentations, meetings, road shows and due diligence sessions and assist with the preparation of projections and other pertinent information in form and substance not previously provided to Purchaser as reasonably requested by Purchaser’s lender(s) in connection with any capital markets transaction comprising a part of the Debt Financing, ;
(ii) providing customary consents cooperating with prospective lenders’ due diligence, to the inclusion extent customary and reasonable, including, but not limited to, the delivery of their audit report in respect of any financial statements Organizational Documents of the Company Brand Companies and lien searches, and reasonably cooperating with Purchaser to facilitate an appraisal of the Company Subsidiaries in Intellectual Property owned by the Brand Companies, each as contemplated by the Debt Commitment Letters;
(iii) executing and delivering into escrow any offering credit agreement, customary and reasonable pledge and security documents, guarantee documents, supplemental indenture, currency or interest hedging arrangements, other definitive financing documents, or other certificates, or other documents relating with respect to the Debt Financing contemplated by the Debt Commitment Letters as may be reasonably requested by Purchaser or otherwise reasonably facilitating the pledging of collateral;
(iv) furnishing Purchaser and (iii) reasonable assistance and cooperation to Buyer its sources of Debt Financing as promptly as practicable financial statements with respect to any auditor due diligencethe period following the date hereof as reasonably required by such sources and not previously provided to Purchaser by Seller;
(v) furnishing Purchaser, (e) subject to and conditioned on within the occurrence of time period specified in the Closing, Debt Commitment Letters or as otherwise reasonably requested by the taking of customary corporate actions reasonably necessary to permit the consummation of and funding sources of the Debt Financing, (f) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth in any definitive document relating to the Debt Financing to the extent satisfaction of such condition requires the cooperation of, or is within the control of, the Group Companies, (g) delivering to Buyer at least three (3) Business Days prior to the Closing with all such documentation and other information as is reasonably requested in writing by Buyer at least ten (10) Business Days prior to the Closing to the extent required by U.S. regulatory regulators and authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT USA Patriot Act of 2001;
(vi) taking such reasonable actions as may be required, proper or advisable, as requested by Purchaser, to facilitate the guarantee and pledge of collateral to secure the Debt Financing, including cooperating in connection with the pay-off of existing Indebtedness and the requirements release of 31 C.F.R. §1010.230Liens related thereto; and
(vii) using commercially reasonable efforts to obtain customary pay-off letters, Lien releases, instruments of termination, waivers, consents, and approvals from other parties to Contracts and Liens to which the Brand Companies are a party or by which any of them or their assets or properties are bound or subject; provided, that (1) nothing herein shall require such cooperation to the extent it would require the Company or its Affiliates to waive or amend any terms of this Agreement 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 Purchaser or for which it has not otherwise agreed to pay or reimburse under this Agreement, or to give any indemnities or incur any liabilities other than reimbursements and liabilities of the Brand Companies that are effective only after the Closing, (h2) facilitating and assisting in nothing herein shall require such cooperation from the preparation and delivery Company or its Affiliates to the extent it would unreasonably interfere with or disrupt the ongoing operations of the Company or its Affiliates, (3) no action, liability or obligation of the Company under any credit agreementscertificate, indenturesagreement, notesarrangement, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates document or other definitive documents instrument relating to the Debt Financing relating shall be effective until after the Closing and (4) neither the Company nor any of its Affiliates shall be required to the Group Companiesissue any offering documents, private placement memoranda, bank information memoranda, prospectuses and their respective businesses to be included similar documents required in the definitive documents relating relation to the Debt Financing, but such documents may contain disclosure and assist with financial statements reflecting the execution and delivery of Company as the same, in each case, solely to obligor following the extent reasonable and customary for financings of such type, (i) cooperating with internal and external counsel of Buyer 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 Debt Financing, in each case, solely to the extent reasonable and customary for financings of such type, and (j) obtaining and providing documents to Buyer (including draft payoff letters) relating to the repayment of the Indebtedness and the release of related guarantees and Liens in accordance with the terms of this Agreement. The Company hereby consents, on behalf of itself and the Group Companies, to the use of the logos of the Group Companies in connection with the Debt Financing; provided that such logos are used solely in a manner that is not intended to, nor is reasonably likely to, harm or disparage the Company’s or any of its Affiliates’ reputation or goodwillClosing.
8.11.2. Notwithstanding anything in this Agreement to the contrary, (a) no Group Company nor any of their respective Representatives shall be required, under the provisions of this Section 8.11 or otherwise in connection with the Debt Financing, to pay any commitment or other similar fee or enter into any binding agreement (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) or commitment or incur any other actual or potential liability or obligation in connection with the Debt Financing prior to the Closing that is not advanced by Buyer, (b) no Group Company or any of their respective RepresentativesPurchaser shall promptly, managers, officers or employees shall be required to execute or enter into, perform or authorize any agreement with respect to the Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) that is not contingent upon the Closing or that would be effective prior to the Closing Date, (c) no Representative, manager, officer or employee of any Group Company shall be required to deliver any certificate or take any other action pursuant to this Section 8.11 to the extent any such action would reasonably be expected to result in personal liability to such Representative, manager, officer or employee, (d) no Group Company or their respective Representatives shall be required to take any action that would reasonably be expected, in the reasonable judgment of the Company, to conflict with, or result in any violation or breach of, any applicable Laws, any organizational documents of any Group Company, any contract or obligations of confidentiality (not created in contemplation hereof) binding on any Group Company, (e) no Group Company or any of their respective Representatives shall be required to take any action that would cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement, (f) no Group Company or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, the Company has, in its good faith, determined is not true, (g) no Group Companies or their respective Representatives shall be required to provide, and the Buyer will be solely responsible for the preparation of: (1) pro forma financial information; (2) any description of all or any component of the Debt Financing; or (3) projections, risk factors or other forward-looking statements relating to all or any component of the Debt Financing; and (h) no Group Company shall be required to provide access to or disclose information that the Company determines would jeopardize any attorney–client privilege or other similar privilege of the Company or any of its Subsidiaries. Promptly upon request by the CompanyCompany or Seller, Xxxxx will reimburse the Company Seller for any all documented and reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred by the Company, the Company Subsidiaries Seller or any of their respective Affiliates or Representatives in connection with the cooperation of the Company, the Company Subsidiaries and their Representatives any other Brand Company contemplated by this Section 8.11. Except in the case of fraud or a breach of this Agreement, Buyer shall indemnify, defend, and hold harmless the Group Companies and their respective Representatives from and against any and all losses, damages, awards, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecution, investigation, defense or settlement of any of the foregoing) and other amounts suffered or incurred by them in connection with (i) any action taken by them at the request of Buyer pursuant to this Section 8.11 or in connection with the arrangement of the Debt Financing or (ii) any information utilized in connection therewith7.15, and the foregoing obligations shall survive termination of this Agreement and the occurrence of the Closing. Agreement.
(c) In additionno event shall Seller, no action, liability or obligation of the Company, any of the Brand Company Subsidiaries or any of their respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to any Debt Financing (other than the execution of the authorization letters referred to Affiliates be in clause (c)(ii) of Section 8.11.1) will be effective until the Closing Date. All material, non-public information regarding the Group Companies provided to Buyer or any of its Representatives pursuant to this Section 8.11 shall be kept confidential by them in accordance with the Confidentiality Agreement except for disclosure to potential investors as required in connection with the Debt Financing subject to customary confidentiality protections. Notwithstanding anything to the contrary, the Company shall be deemed to have complied with this Section 8.11 for all purposes breach of this Agreement (including Article 6 and Article 7) unless the Debt Financing has not been obtained primarily as a result because of the Company’s Willful Breach failure by the Company or any Brand Company to deliver any financial or other information that is not currently readily available to the Company or any Brand Company on the date hereof or is not otherwise prepared in the ordinary course of its obligations under this Section 8.11. Notwithstanding anything herein business at the time requested by Purchaser or for failure to the contrary, Xxxxx acknowledges and agrees that obtaining obtain any Debt Financing is not a condition to the Closingreview of any financial or other information by its accountants.
Appears in 3 contracts
Samples: Membership Interest Purchase Agreement, Membership Interest Purchase Agreement (Gaiam, Inc), Membership Interest Purchase Agreement (Sequential Brands Group, Inc.)
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (xa) provide Seller and the Company with written notice that such Debt Financing has been obtained and (y) deliver (or cause to be delivered) to Seller and the Company true, correct and complete copies of all arrangements pursuant to which any Financing Parties shall have committed Cole agrees to provide any portion of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further that, in no event shall the receipt of such Debt Financing be a condition to Closing assistance (and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. Prior to the Closing, subject to Section 8.11.2, the Company shall use reasonable best efforts to, and shall use reasonable best efforts to cause the Company Cole Subsidiaries and its and their respective Representatives to, in each case at Buyer’s sole expense, to provide to Buyer such cooperation assistance) with any debt financing (the “Debt Financing”) as is reasonably requested by Buyer that is Spirit. Such assistance shall include, but not be limited to, the following: (i) participation in, and reasonable assistance with, the marketing efforts related to any such Debt Financing; (ii) participation by Cole’s senior management and Representatives in, and reasonable assistance with, the preparation of rating agency presentations and meetings with rating agencies as may be requested by Spirit; (iii) delivery to Spirit and its Financing Sources of any financial information pertaining to Cole and the Cole Subsidiaries reasonably necessary in arranging, obtaining and syndicating the to obtain such Debt Financing; (iv) participation by Cole’s senior management and Representatives in the negotiation, if execution and delivery of any (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the operations of the Group Companies), including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies Debt Financing documents as may be reasonably requested by Buyer for Spirit; (v) taking such actions as are reasonably requested by Spirit or its Financing Sources to facilitate the completion satisfaction on a timely basis of the all conditions precedent to obtaining such Debt Financing, ; (bvi) participating in telephonic meetings and otherwise taking all actions as may be reasonably assisting with the preparation of appropriate and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies requested by Spirit or its Financing Sources in connection with the Debt Financing to the extent reasonable and customary for financings of such type, (c) reasonably assisting in the preparation of (i) customary bank information memoranda, lender and investor presentations, offering documents, offering or private placement memoranda and other similar marketing documents and due diligence efforts for the Debt Financing and (ii) customary authorization and representation letters, each as required in connection with the Debt Financing, authorizing the distribution of information to prospective lenders and containing a representation that the public side of such documents, if any, do not include any information about any Group Company or any securities of any Group Company that would constitute material non-public information within the meaning of the United States federal and state securities laws if any Group Company were a public reporting company, (d) using reasonable best efforts to cause the Company’s independent registered accounting firm to provide customary assistance, including (i) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) in connection with any capital markets transaction comprising a part of the Debt Financing, (ii) providing customary consents to the inclusion of their audit report in respect of any financial statements of the Company and the Company Subsidiaries in any offering documents relating to the Debt Financing and (iii) reasonable assistance and cooperation to Buyer with respect to any auditor due diligence, (e) subject to and conditioned on the occurrence of the Closing, the taking of customary corporate actions reasonably necessary to permit the consummation of and funding of the Debt Financing, (f) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth in any definitive document relating to the Debt Financing to the extent satisfaction of such condition requires the cooperation of, or is within the control of, the Group Companies, (g) delivering to Buyer at least three (3) Business Days prior to the Closing all such documentation and information as is reasonably requested in writing by Buyer at least ten (10) Business Days prior to the Closing to the extent required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act and the requirements of 31 C.F.R. §1010.230, (h) facilitating and assisting in the preparation and delivery of any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents relating to the Debt Financing relating to the Group Companies, and their respective businesses to be included in the definitive documents relating to the Debt Financing, and assist with the execution and delivery of the same, in each case, solely to the extent reasonable and customary for financings of such type, (i) cooperating with internal and external counsel of Buyer 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 Debt Financing, in each case, solely to the extent reasonable and customary for financings of such type, and (j) obtaining and providing documents to Buyer (including draft payoff letters) relating to the repayment of the existing Indebtedness and the release of related guarantees and Liens in accordance with the terms of this Agreement. The Company hereby consents, on behalf of itself and the Group Companies, to the use of the logos of the Group Companies in connection with the Debt Financing; provided that such logos are used solely in a manner that is not intended to, nor is reasonably likely to, harm or disparage the Company’s or any of its Affiliates’ reputation or goodwill.
8.11.2. Notwithstanding anything in this Agreement to the contrary, (a) no Group Company nor any of their respective Representatives shall be required, under the provisions of this Section 8.11 or otherwise in connection with the Debt Financing, to pay any commitment or other similar fee or enter into any binding agreement (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) or commitment or incur any other actual or potential liability or obligation in connection with the Debt Financing prior to the Closing that is not advanced by Buyer, (b) no Group Company or any of their respective Representatives, managers, officers or employees shall be required to execute or enter into, perform or authorize any agreement with respect to the Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) that is not contingent upon the Closing or that would be effective prior to the Closing Date, (c) no Representative, manager, officer or employee of any Group Company shall be required to deliver any certificate or take any other action pursuant to this Section 8.11 to the extent any such action would reasonably be expected to result in personal liability to such Representative, manager, officer or employee, (d) no Group Company or their respective Representatives shall be required to take any action that would reasonably be expected, in the reasonable judgment of the Company, to conflict with, or result in any violation or breach of, any applicable Laws, any organizational documents of any Group Company, any contract or obligations of confidentiality (not created in contemplation hereof) binding on any Group Company, (e) no Group Company or any of their respective Representatives shall be required to take any action that would cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement, (f) no Group Company or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, the Company has, in its good faith, determined is not true, (g) no Group Companies or their respective Representatives shall be required to provide, and the Buyer will be solely responsible for the preparation of: (1) pro forma financial informationCole; (2vii) any description of all or any component of the Debt Financing; or (3) projections, risk factors or causing its independent auditors and other forward-looking statements relating Representatives to all or any component of cooperate with the Debt Financing; and (hviii) no Group Company shall taking such actions as may be required permit any cash and marketable securities of Cole and the Cole Subsidiaries to be made available to finance, in part, the Closing on the Closing Date. Cole will use its reasonable best efforts to provide, and cause its Representatives to provide, to Spirit and its financing sources such information as may be necessary so that the financing information pertaining to Cole and the Cole Subsidiaries 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 the light of the circumstances under which such statements are made, not misleading. Notwithstanding the foregoing, none of Cole or any Cole Subsidiary shall, prior to the Closing, be required to provide access to pay any commitment or disclose information that similar fee or make any other payment in connection with the Company determines would jeopardize any attorney–client privilege or other similar privilege existing Indebtedness of Cole. None of the Company representations, warranties or covenants of the Cole Parties shall be deemed to apply to, or deemed breached or violated by, any of the actions contemplated by this Section 7.18 or by any action taken by any Cole Party at the request of Spirit or its Financing Sources.
(b) Notwithstanding the foregoing, Spirit agrees that (i) the effectiveness of any definitive documentation executed by Cole or any Cole Subsidiaries shall be subject to the consummation of the Closing; (ii) this Section 7.18(b) shall not require Cole, any Cole Subsidiary or any of its Subsidiaries. Promptly Affiliates to agree to any contractual obligation relating to any proposed Debt Financing that is not conditioned upon request by the Companyconsummation of the Closing and that does not terminate without any liability to Cole, Xxxxx will reimburse the Company for any reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Company, the Company Subsidiaries Cole Subsidiary or any of their Representatives in connection with Affiliates upon the cooperation of the Company, the Company Subsidiaries and their Representatives contemplated by this Section 8.11. Except in the case of fraud or a breach termination of this AgreementAgreement in accordance with its terms; and (iii) the Spirit Parties, Buyer on a joint and several basis, shall indemnify, defend, indemnify and hold harmless Cole, the Group Companies Cole Subsidiaries and their respective Representatives from and against any and all liabilities, losses, damages, awardsclaims, fines, penaltiescosts, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, expenses (including interest, penaltiesawards, reasonable legal, consulting judgments and other professional fees and expenses and all amounts paid in prosecution, investigation, defense or settlement of any of the foregoing) and other amounts penalties suffered or incurred by them in connection with (i) any action taken by them at the request of Buyer pursuant to this Section 8.11 or in connection with the arrangement of any such Debt Financing or any assistance or activities provided in connection therewith (other than historical information relating to Cole or any Cole Subsidiary) and except as may be finally judicially determined to have arisen from Cole’s or any Cole Subsidiaries’ or other Representatives’ fraud, willful misconduct, intentional misrepresentation or gross negligence.
(c) Spirit has provided to Cole a true, complete and correct copy of an executed commitment letter with respect to the Debt Financing (the “Commitment Letter”). Spirit shall not amend, replace, supplement or modify the Commitment Letter, including without limitation, as a result of obtaining alternative financing, without the prior consent of Cole (ii) any information utilized not to be unreasonably conditioned, withheld or delayed). Spirit shall keep Cole informed on a current basis in connection therewith, and the foregoing obligations shall survive termination of this Agreement and the occurrence reasonable detail of the Closingstatus of its efforts to arrange the Debt Financing. In additionFor the avoidance of doubt, no action, liability or obligation of the Company, any of the Company Subsidiaries or any of their respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to Parties agree that obtaining any Debt Financing (other than or the execution expiration of the authorization letters referred Syndication Period is not a condition to in clause consummating the Mergers.
(c)(iid) of Section 8.11.1) will be effective until the Closing Date. All material, non-public or otherwise confidential information regarding Cole and the Group Companies provided to Buyer Cole Subsidiaries obtained by Spirit or any of its Representatives pursuant to this Section 8.11 7.18, shall be kept confidential by them in accordance with the Spirit Confidentiality Agreement except for disclosure to potential investors as required in connection with the Debt Financing subject to customary confidentiality protections. Notwithstanding anything to the contrary, the Company shall be deemed to have complied with this Section 8.11 for all purposes of this Agreement (including Article 6 and Article 7) unless the Debt Financing has not been obtained primarily as a result of the Company’s Willful Breach of its obligations under this Section 8.11. Notwithstanding anything herein to the contrary, Xxxxx acknowledges and agrees that obtaining any Debt Financing is not a condition to the ClosingAgreement.
Appears in 2 contracts
Samples: Merger Agreement (Cole Credit Property Trust II Inc), Merger Agreement (Spirit Realty Capital, Inc.)
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of (a) From the Purchase Price (date hereof until the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (x) provide Seller and the Company with written notice that such Debt Financing has been obtained and (y) deliver Closing (or cause to be delivered) to Seller and the Company true, correct and complete copies earlier termination of all arrangements this Agreement pursuant to which any Financing Parties shall have committed to provide any portion of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further that, in no event shall the receipt of such Debt Financing be a condition to Closing and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. Prior to the ClosingSection 8.01), subject to the limitations set forth in this Section 8.11.25.05, and unless otherwise agreed by Parent, the Company shall use reasonable best efforts will, and will cause each of its Subsidiaries to, and shall will use its reasonable best efforts to cause the Company Subsidiaries its and its and their respective Subsidiaries’ Representatives to, in each case at Buyer’s sole expense, provide use its or their reasonable best efforts to Buyer such cooperation cooperate with Parent as reasonably requested by Buyer that is reasonably necessary Parent in arrangingconnection with Parent’s arrangement of the Financing (which, obtaining solely for purposes of this Section 5.05 and syndicating the Debt use of the term Financing Party in this Section 5.05, shall include any alternative equity or debt financings, all or a portion of which will be used to fund the Merger 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, if including making appropriate officers reasonably available, with appropriate advance notice, for participation in lender, underwriter, initial purchaser or investor meetings, due diligence sessions, meetings with ratings agencies and road shows, and reasonable assistance in the preparation of confidential information memoranda, private placement memoranda, prospectuses, registration statements, lender and investor presentations, ratings agency presentations and similar documents as may be reasonably requested by Parent or any Financing Party, in each case, with respect to information relating to the Company and its Subsidiaries in connection with such marketing efforts;
(provided that such requested cooperation is consistent with applicable Laws ii) furnish Parent and does not unreasonably interfere with the operations of the Group Companies), including as promptly as reasonably practical, (a) furnishing Buyer Financing Parties with the Required Financial Information and any other pertinent information regarding with respect to the Group Companies Company and its Subsidiaries as may be is reasonably requested by Buyer Parent or any Financing Party and is customarily (A) required for the completion marketing, arrangement and syndication of the Debt Financing, (b) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies in connection with the Debt Financing financings similar to the extent reasonable and customary for financings of such type, Financing or (cB) reasonably assisting used in the preparation of (i) customary bank offering or information memorandadocuments or rating agency, lender and investor presentationspresentations or road shows relating to the Financing; provided, offering documentsthat, offering or private placement memoranda and other similar marketing documents and due diligence efforts for the Debt Financing and (ii) customary authorization and representation letters, each as required in connection with the Debt Financing, authorizing the distribution of information to prospective lenders and containing a representation that the public side of such documents, if any, do not include any information about any Group Company or any securities of any Group Company that would constitute material non-public information within the meaning of the United States federal and state securities laws if any Group Company were a public reporting company, (d) using will use its reasonable best efforts to cause update such Required Financial Information provided to Parent pursuant to Section 5.05 as may be necessary so that such Required Financial 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, in the light of the circumstances under which they were made, not misleading;
(iii) request that the Company’s independent registered accountants participate in drafting sessions and accounting firm to 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 assistance, including (i) providing customary consents and comfort letters (including “negative assurance assurance” comfort” and “change period comfort”) in connection with any capital markets transaction comprising a part of the Debt Financing, (ii) providing customary consents to the inclusion of their audit report in respect of any financial statements of the Company and the Company Subsidiaries in any offering documents relating to the Debt Financing and (iii) reasonable assistance and cooperation to Buyer with respect to any auditor due diligence, (e) subject to and conditioned on the occurrence of the Closing, the taking of customary corporate actions reasonably necessary to permit the consummation of and funding of the Debt Financing, (f) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth in any definitive document relating to the Debt Financing to the extent satisfaction of such condition requires the cooperation of, or is within the control of, the Group Companies, (g) delivering to Buyer at least three (3) Business Days prior to the Closing all such documentation and information as is reasonably requested in writing by Buyer at least ten (10) Business Days prior to the Closing 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 U.S. regulatory authorities the Financing;
(iv) obtain or provide certificates as are customary in financings of such type and other customary documents (other than legal opinions) relating to the Financing as reasonably requested by Parent;
(v) furnish all documentation and other information required by a Governmental Entity or any Financing Party under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and the requirements ACT (Title III of 31 C.F.R. §1010.230Pub. L. 107-56 (signed into law October 26, (h) facilitating and assisting in the preparation and delivery of any credit agreements2001)), indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents relating to the Debt Financing relating to the Group Companies, and their respective businesses to be included in the definitive documents relating to the Debt Financing, and assist with the execution and delivery of the same, in each case, solely to the extent reasonably requested by Purchaser at least 10 Business Days prior to the anticipated Closing Date;
(vi) assist Parent in obtaining any credit ratings from rating agencies contemplated by the Debt Letters;
(vii) use reasonable best efforts to obtain such consents, waivers, estoppels, approvals, authorizations and customary for financings of such type, (i) cooperating with internal and external counsel of Buyer in connection with providing customary back-up certificates and factual information regarding any legal opinion that such counsel instruments which may be required to deliver requested by Parent in connection with the Debt Financing, ;
(viii) cooperate in each case, solely satisfying the conditions precedent set forth in any definitive documentation related to the Financing to the extent reasonable and customary for financings satisfaction of such typecondition reasonably requires the cooperation of, or is within the control of, the Company; and
(ix) cooperate with respect to the delivery of any required notices regarding the Merger to the holders of Company indebtedness; 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 contemplated by Section 5.05(a)(iii) or Section 5.05(a)(iv), (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 (40) days prior to the date of such request.
(b) Notwithstanding anything to the contrary contained in this Agreement (including this Section 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 fees, reimburse any expenses or otherwise incur any liabilities or give any indemnities prior to the Closing, (2) unreasonably interfere with the ongoing business or operations of the Company or its Subsidiaries, (3) require the Company or any of the Company Subsidiaries to enter into or approve any agreement or other documentation effective prior to the Closing, (4) result in any conflict with the Company Articles, the Company Bylaws or the Organizational Documents of any Company Subsidiary, (5) reasonably be expected to result in a material violation or material breach of, or a material default (with or without notice, lapse of time or both) under, any Contract to which the Company or any Company Subsidiary is a party, including this Agreement, (6) reasonably be expected to result in a material violation of applicable Law (including with respect to privacy of employees) or (7) reasonably be expected to threaten the loss of any attorney-client privilege or other applicable legal privilege; and (jii) obtaining and providing documents to Buyer no action, liability or obligation (including draft payoff lettersany obligation to pay any commitment or other fees or reimburse any expenses) of the Company, its Subsidiaries, or any of their respective Representatives under any certificate, agreement, arrangement, document or instrument relating to the repayment of Financing shall be effective until the Indebtedness and the release of related guarantees and Liens in accordance with the terms of this AgreementClosing. The Company hereby consents, on behalf of itself and the Group Companies, consents to the use of the its and its Subsidiaries’ logos of the Group Companies in connection with the Debt FinancingFinancing in a form and manner mutually agreed with the Company; provided provided, however, that such logos are used solely in a manner that is not intended tointended, nor is or reasonably likely tolikely, to harm or disparage the Company’s Company or any of its Affiliates’ reputation or goodwill.
8.11.2. Notwithstanding anything in this Agreement to the contrary, (a) no Group Company nor any of their respective Representatives shall be required, under the provisions of this Section 8.11 or otherwise in connection with the Debt Financing, to pay any commitment or other similar fee or enter into any binding agreement (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) or commitment or incur any other actual or potential liability or obligation in connection with the Debt Financing prior to the Closing that is not advanced by Buyer, (b) no Group Company Subsidiaries or any of their respective Representatives, managers, officers subsidiaries or employees shall be required to execute the reputation or enter into, perform or authorize goodwill of any agreement with respect to the Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) that is not contingent upon the Closing or that would be effective prior to the Closing Date, foregoing.
(c) no Representative, manager, officer or employee of any Group Company Parent shall be required to deliver any certificate or take any other action pursuant to this Section 8.11 to the extent any such action would reasonably be expected to result in personal liability to such Representative, manager, officer or employee, (di) no Group Company or their respective Representatives shall be required to take any action that would reasonably be expected, in the reasonable judgment of the Company, to conflict with, or result in any violation or breach of, any applicable Laws, any organizational documents of any Group Company, any contract or obligations of confidentiality (not created in contemplation hereof) binding on any Group Company, (e) no Group Company or any of their respective Representatives shall be required to take any action that would cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement, (f) no Group Company or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, the Company has, in its good faith, determined is not true, (g) no Group Companies or their respective Representatives shall be required to provide, and the Buyer will be solely responsible for the preparation of: (1) pro forma financial information; (2) any description of all or any component of the Debt Financing; or (3) projections, risk factors or other forward-looking statements relating to all or any component of the Debt Financing; and (h) no Group Company shall be required to provide access to or disclose information that the Company determines would jeopardize any attorney–client privilege or other similar privilege of the Company or any of its Subsidiaries. Promptly promptly upon request by the Company, Xxxxx will reimburse the Company for any all of its reasonable costs and documented out-of-pocket fees and expenses (including reasonable attorneys’ feesfees and expenses of counsel and accountants) incurred by the Company, any of the Company Subsidiaries or Subsidiaries, any of its or their Representatives in connection with the any cooperation of contemplated by this Section 5.05 and (ii) indemnify and hold harmless the Company, the Company Subsidiaries and its and their Representatives contemplated by this Section 8.11. Except in the case of fraud or a breach of this Agreement, Buyer shall indemnify, defend, and hold harmless the Group Companies and their respective Representatives from and against any claim, loss, damage, injury, liability, judgment, award, penalty, fine, cost (including cost of investigation), expense (including fees and all 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 than those claims, losses, damages, injuries, liabilities, judgments, awards, penalties, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecutionsettlement payment arising out of or resulting from the gross negligence, investigation, defense fraud or settlement of any of the foregoing) and other amounts suffered or incurred by them in connection with (i) any action taken by them at the request of Buyer pursuant to this Section 8.11 or in connection with the arrangement of the Debt Financing or (ii) any information utilized in connection therewith, and the foregoing obligations shall survive termination of this Agreement and the occurrence of the Closing. In addition, no action, liability or obligation willful misconduct of the Company, any of the Company Subsidiaries or any of their respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to any Debt Financing (other than the execution as finally determined by a court of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) will be effective until the Closing Date. All material, non-public information regarding the Group Companies provided to Buyer or any of its Representatives pursuant to this Section 8.11 shall be kept confidential by them in accordance with the Confidentiality Agreement except for disclosure to potential investors as required in connection with the Debt Financing subject to customary confidentiality protections. Notwithstanding anything to the contrary, the Company shall be deemed to have complied with this Section 8.11 for all purposes of this Agreement (including Article 6 and Article 7) unless the Debt Financing has not been obtained primarily as a result of the Company’s Willful Breach of its obligations under this Section 8.11. Notwithstanding anything herein to the contrary, Xxxxx acknowledges and agrees that obtaining any Debt Financing is not a condition to the Closingcompetent jurisdiction.
Appears in 2 contracts
Samples: Merger Agreement (Vectren Utility Holdings Inc), Merger Agreement
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (xa) provide Seller and the Company with written notice that such Debt Financing has been obtained and (y) deliver (or cause to be delivered) to Seller and the Company true, correct and complete copies of all arrangements pursuant to which any Financing Parties shall have committed to provide any portion of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further that, in no event shall the receipt of such Debt Financing be a condition to Closing and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. Prior to the Closing, subject to Section 8.11.2, the Company shall use its commercially reasonable best efforts to, and shall use reasonable best efforts to cause the Company Subsidiaries and its and their respective Representatives to, in each case at Buyer’s sole expense, provide to Buyer such cooperation reasonably requested by Buyer that is reasonably necessary Parent in arranging, obtaining connection with the arrangement and syndicating consummation of any third-party debt financing for the Debt Financing, if any purpose of financing the transactions contemplated hereby (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the ongoing operations or business of the Group CompaniesCompany or any Company Subsidiary), including: (i) participating in meetings, presentations, marketing sessions (including as with ratings agencies) and due diligence sessions and promptly as furnishing such reasonably practical, available information (aincluding financial information) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies as may be reasonably requested by Buyer for the completion of the Debt Financing, Parent; (bii) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary for presentations, due diligence sessions (including accounting due diligence sessions) memoranda and sessions with rating agencies similar documents required in connection with such financing and participating in a reasonable number of customary meetings with potential financing sources and senior management; (iii) executing and delivering any definitive financing documents and certificates as may be reasonably requested by Parent (including, without limitation, a certificate of the Debt Financing Chief Financial Officer (or equivalent reasonably satisfactory to Parent) of the extent Company and any Company Subsidiary with respect to solvency matters) and otherwise facilitating the pledging of collateral and the providing of guarantees (including providing reasonable and customary for financings of such type, (c) reasonably assisting in the preparation of (i) customary bank information memoranda, lender and investor presentations, offering documents, offering or private placement memoranda and other similar marketing documents and due diligence efforts for the Debt Financing and (ii) customary authorization and representation letters, each as required in connection with the Debt Financing, authorizing the distribution pledging and identification of information to prospective lenders and containing a representation that the public side of such documents, if any, do not include any information about any Group Company or any securities of any Group Company that would constitute material non-public information within the meaning of the United States federal and state securities laws if any Group Company were a public reporting company, (d) using reasonable best efforts to cause the Company’s independent registered accounting firm to provide customary assistance, including (i) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) in connection with any capital markets transaction comprising a part of the Debt Financing, (ii) providing customary consents to the inclusion of their audit report in respect of any financial statements of the Company and the Company Subsidiaries in any offering documents relating to the Debt Financing and (iii) reasonable assistance and cooperation to Buyer with respect to any auditor due diligence, (e) subject to and conditioned on the occurrence of the Closing, the taking of customary corporate actions reasonably necessary to permit the consummation of and funding of the Debt Financing, (f) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth in any definitive document relating to the Debt Financing intellectual property to the extent satisfaction of such condition requires the cooperation of, or is within the control of, the Group Companies, specifically requested by Parent); (giv) delivering to Buyer at least three (3) Business Days prior to the Closing all such documentation and information as is extent reasonably requested by the Parent in writing by Buyer at least ten (10) Business Days prior to the Closing to due date therefor, furnishing all documentation and other information about the extent required by U.S. regulatory authorities Company and the Company Subsidiaries that the potential financing sources have reasonably requested for compliance under applicable “know your customer” and anti-money money-laundering rules and regulations; and (v) obtaining the release and termination of liens on Company and Company Subsidiary assets, including provided that neither the PATRIOT Act and the requirements of 31 C.F.R. §1010.230, (h) facilitating and assisting in the preparation and delivery of Company nor any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents relating to the Debt Financing relating to the Group Companies, and their respective businesses Company Subsidiary shall be required to be included in the definitive an issuer or obligor with respect to such financing, or incur any obligation under any such documents relating to the Debt Financing, and assist with the execution and delivery of the sameor certificates that is effective, in each case, solely prior to the Effective Time. Nothing herein shall require the Company to provide such cooperation described in the foregoing sentence to the extent reasonable and customary for financings of such type, (i) cooperating with internal and external counsel of Buyer 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 Debt Financing, in each case, solely to the extent reasonable and customary for financings of such type, and (j) obtaining and providing documents to Buyer (including draft payoff letters) relating to the repayment of the Indebtedness and the release of related guarantees and Liens in accordance with the terms of this Agreement. The Company hereby consents, on behalf of itself and the Group Companies, to the use of the logos of the Group Companies in connection with the Debt Financing; provided that such logos are used solely in a manner that is not intended to, nor is reasonably likely to, harm or disparage the Company’s or any of its Affiliates’ reputation or goodwill.
8.11.2. Notwithstanding anything in this Agreement to the contrary, (a) no Group Company nor any of their respective Representatives shall be required, under the provisions of this Section 8.11 or otherwise in connection with the Debt Financing, to pay any commitment or other similar fee or enter into any binding agreement (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) or commitment or incur any other actual or potential liability or obligation in connection with the Debt Financing prior to the Closing that is not advanced by Buyer, (b) no Group Company or any of their respective Representatives, managers, officers or employees shall be required to execute or enter into, perform or authorize any agreement with respect to the Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) that is not contingent upon the Closing or that it would be effective prior to the Closing Date, (c) no Representative, manager, officer or employee of any Group Company shall be required to deliver any certificate or take any other action pursuant to this Section 8.11 to the extent any such action would reasonably be expected to result in personal liability to such Representative, manager, officer or employee, (d) no Group Company or their respective Representatives shall be required to take any action that would reasonably be expected, in the reasonable judgment of the Company, to conflict with, or result in any violation or breach of, any applicable Laws, any organizational documents of any Group Company, any contract or obligations of confidentiality (not created in contemplation hereof) binding on any Group Company, (e) no Group Company or any of their respective Representatives shall be required to take any action that would cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement, (f) no Group Company or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, the Company has, in its good faith, determined is not true, (g) no Group Companies or their respective Representatives shall be required to provide, and the Buyer will be solely responsible for the preparation of: (1) pro forma financial information; (2) any description of all or any component of the Debt Financing; or (3) projections, risk factors or other forward-looking statements relating to all or any component of the Debt Financing; and (h) no Group Company shall be required to provide access to or disclose information that the Company determines would jeopardize any attorney–client privilege or other similar privilege of require the Company or any of its Subsidiaries. Promptly upon request by the Company, Xxxxx will reimburse the Company for Subsidiary to agree to pay any reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Company, the Company Subsidiaries or any of their Representatives in connection with the cooperation of the Company, the Company Subsidiaries and their Representatives contemplated by this Section 8.11. Except in the case of fraud or a breach of this Agreement, Buyer shall indemnify, defend, and hold harmless the Group Companies and their respective Representatives from and against any and all losses, damages, awards, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, reimburse any expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecution, investigation, defense or settlement of give any of the foregoing) and other amounts suffered or incurred by them in connection with (i) any action taken by them at the request of Buyer pursuant to this Section 8.11 or in connection with the arrangement of the Debt Financing or (ii) any information utilized in connection therewith, and the foregoing obligations shall survive termination of this Agreement and the occurrence of the Closing. In addition, no action, liability or obligation of the Company, any of the Company Subsidiaries or any of their respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to any Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) will be effective until the Closing Date. All material, non-public information regarding the Group Companies provided to Buyer or any of its Representatives pursuant to this Section 8.11 shall be kept confidential by them in accordance with the Confidentiality Agreement except for disclosure to potential investors as required in connection with the Debt Financing subject to customary confidentiality protections. Notwithstanding anything indemnities prior to the contrary, the Company shall be deemed to have complied with this Section 8.11 Effective Time for all purposes which it is not reimbursed or indemnified.
(b) Each of this Agreement (including Article 6 Parent and Article 7) unless the Debt Financing has not been obtained primarily as a result of the Company’s Willful Breach of its obligations under this Section 8.11. Notwithstanding anything herein to the contrary, Xxxxx Purchaser acknowledges and agrees that the obtaining of any Debt Financing financing (debt or otherwise, including the Financing) is not a condition to the Offer or the Closing.
Appears in 2 contracts
Samples: Merger Agreement (Procera Networks, Inc.), Merger Agreement (Procera Networks, Inc.)
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (xa) provide Seller and the Company with written notice that such Debt Financing has been obtained and (y) deliver (or cause to be delivered) to Seller and the Company true, correct and complete copies of all arrangements pursuant to which any Financing Parties shall have committed to provide any portion of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further that, in no event shall the receipt of such Debt Financing be a condition to Closing and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. Prior to the Closing, subject to Section 8.11.2Company Merger Effective Time, the Company shall, and shall cause each of its Subsidiaries to, use its reasonable best efforts to, and shall use commercially reasonable best efforts to cause the Company Subsidiaries Advisor and its and their respective Representatives Company Sub-Advisor to, in each case at Buyer’s sole expense, provide to Buyer Parent such cooperation reasonably requested by Buyer Parent to cause the conditions and covenants in the Debt Financing Letters to be satisfied or otherwise that is necessary, proper, advisable or desirable, or reasonably necessary requested by Parent, in arrangingconnection with the Debt Financing or any issuances of Parent Equity Interests permitted by Section 5.2. Such cooperation shall include using reasonable best efforts to:
(i) (A) furnish Parent and the Debt Financing Sources as promptly as practicable with (1) financial statements regarding the Company and its Subsidiaries as are (x) reasonably requested by Parent (including on behalf of the Debt Financing Sources), obtaining (y) within the Company’s control and syndicating (z) customarily prepared by the Company or for the Company by the Company Advisor or the Company Sub-Advisor in the ordinary course of business, (2) furnish Parent and the Debt Financing Sources as promptly as practicable with information regarding the tenants in the properties securing the Debt Financing of the type and form customarily included in securitizations including financial data, audit reports and other financial and property-related information, provided that such information is (x) requested by Parent (including on behalf of the Debt Financing Sources), (y) currently in the Company’s possession or actually received by the Company after the date hereof and prior to the Closing and (z) which the Company is permitted to share with Parent and their Debt Financing Sources, (3) such third party reports regarding the Company’s properties as are currently in the Company’s possession or are actually received by the Company after the date hereof and prior to the Closing and (4) rent rolls, schedules of tenant security deposits, aging reports, schedules of outstanding tenant improvement and leasing commission, operating and capital budgets, insurance policies, existing surveys, zoning reports, leases, management agreements, licenses, information related to RIDEA assets, and documentation regarding Medicare and Medicaid and other healthcare related items, in each case, if and only to the extent that the foregoing are (x) currently in the Company’s possession, (y) actually received by the Company after the date hereof and prior to the Closing or (z) customarily prepared by the Company or for the Company by the Company Advisor or the Company Sub-Advisor in the ordinary course of business;
(ii) execute and deliver any representation letter to auditors and any other certificate or document and back-up therefor and other certificates or documents required to satisfy the conditions in the Debt Financing Letters, or as otherwise may be reasonably requested by Parent or the Debt Financing Sources, and otherwise reasonably facilitate the pledging of collateral; provided, that the Company shall not be required to execute any document in connection with this Section 6.13(a)(ii) that would be effective at any time before the Company Merger Effective Time or participate in negotiating any definitive agreements described in this Section 6.13(a)(ii) or otherwise with respect to the Debt Financing;
(iii) use reasonable best efforts to obtain accountants’ comfort letters, if any consents of accountants, corporate and facilities ratings, consents to transfer and waivers of first refusal, consents from governmental agencies (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the operations of the Group Companiesas licenses for RIDEA assets, PILOT or similar tax incentive programs), landlord waivers and estoppels, non-disturbance agreements, legal opinions, surveys and title insurance (including as promptly as reasonably practicalproviding reasonable access to Parent and its Representatives to all owned real property and leased real property), (a) furnishing Buyer with the Required Financial Information engineering reports, environmental and other pertinent information regarding inspections and other documentation and items relating to the Group Companies Debt Financing as may be reasonably requested by Buyer for Parent (it being understood that all written communications with such Persons in connection with the foregoing shall either be (x) prepared by the Company and in form reasonably satisfactory to Parent or (y) at the request of the Company, prepared by Parent and in form reasonably acceptable to the Company);
(iv) grant Parent and the Debt Financing Sources access to the Company and Company Subsidiaries’ respective owned real estate properties and, subject to obtaining required third party consents with respect thereto (which the Company shall use reasonable efforts to obtain), leased real estate properties that will secure the Debt Financing (including cooperating in and facilitating the completion of field examinations, collateral audits, asset appraisals, surveys, Phase I environmental site assessments and engineering/property condition reports) (provided, however, that, notwithstanding anything to the contrary in this Agreement, (A) none of Parent, the Debt Financing Sources or their Representatives shall have the right to take and analyze any samples of any environmental media (including soil, groundwater, surface water, air or sediment) or any building material or to perform any invasive testing procedure on any such property, unless and only to the extent (I) recommended pursuant to a third party environmental report and (II) Parent shall first have delivered to the Company a written request to conduct such testing or sampling, which request shall (x) specify each property to be tested or sampled, and include a copy of the third-party environmental report recommending such testing or sampling and (y) include a representation from an authorized officer of Parent to the effect that (1) such testing or sampling is reasonably necessary in order to effect the Debt Financing without any reduction in the loan amount, or increase in reserves, in connection with the applicable environmental issue and (2) the representations and warranties in Section 4.24 (modified to substitute “as of the date of this request” for each instance of “as of the date of this Agreement”) are true and correct in all material respects on the date of such request (B) Parent and the Debt Financing Sources shall schedule and coordinate all inspections with the Company and shall give the Company at least two (2) business days’ prior written notice thereof, setting forth the inspection that Parent, the Debt Financing Sources or their Representatives intend to conduct and (C) the Company shall be entitled to have representatives present at all times during any such inspection; and
(v) reasonably facilitating the pledging or the re-affirmation of the pledge of collateral (including with respect to obtaining and delivering of pay-off letters and Lien terminations, in each case contingent on the consummation of the Mergers, in form and substance reasonably satisfactory to Parent, 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 in connection with the consummation of the Mergers).
(b) Notwithstanding anything in this Section 6.13 to the contrary, until the Company Merger Effective Time occurs, neither the Company nor any of the Company Subsidiaries, nor any of their respective officers or directors, as the case may be, shall be required to (A) pay any commitment or other fee in connection with any proposed Debt Financing, (bB) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentationsenter into any definitive agreement, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies in connection with the any credit or other agreements, pledge or security documents, or other certificates, legal opinions or documents, related to any proposed Debt Financing that will be effective at any time before the Company Merger Effective Time (provided, the Company shall reasonably cooperate to name designees of Parent to be officers of the Company effective immediately prior to the extent reasonable Company Merger Effective Time so that such officers may execute and customary for financings of deliver such typedocuments (and such officers shall have no other authority until the Company Merger Effective Time)), (cC) reasonably assisting in unless promptly reimbursed by Parent upon written request of the preparation Company, be required to incur any other out of pocket expenses (iother than immaterial incidental expenses) customary bank information memoranda, lender and investor presentations, offering documents, offering or private placement memoranda and other similar marketing documents and due diligence efforts for the Debt Financing and (ii) customary authorization and representation letters, each as required in connection with the Debt Financing, authorizing (D) have the distribution pre-Closing Board of information to prospective lenders and containing a representation that the public side of such documents, if any, do not include any information about any Group Company or any securities of any Group Company that would constitute material non-public information within the meaning of the United States federal and state securities laws if any Group Company were a public reporting company, (d) using reasonable best efforts to cause the Company’s independent registered accounting firm to provide customary assistance, including (i) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) in connection with any capital markets transaction comprising a part of the Debt Financing, (ii) providing customary consents to the inclusion of their audit report in respect of any financial statements of the Company and the Company Subsidiaries in any offering documents relating to the Debt Financing and (iii) reasonable assistance and cooperation to Buyer with respect to any auditor due diligence, (e) subject to and conditioned on the occurrence of the Closing, the taking of customary corporate actions reasonably necessary to permit the consummation of and funding of the Debt Financing, (f) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth in any definitive document relating to the Debt Financing to the extent satisfaction of such condition requires the cooperation of, or is within the control of, the Group Companies, (g) delivering to Buyer at least three (3) Business Days prior to the Closing all such documentation and information as is reasonably requested in writing by Buyer at least ten (10) Business Days prior to the Closing to the extent required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act and the requirements of 31 C.F.R. §1010.230, (h) facilitating and assisting in the preparation and delivery of any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents relating to the Debt Financing relating to the Group Companies, and their respective businesses to be included in the definitive documents relating to the Debt Financing, and assist with the execution and delivery of the same, in each case, solely to the extent reasonable and customary for financings of such type, (i) cooperating with internal and external counsel of Buyer 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 Debt Financing, in each case, solely to the extent reasonable and customary for financings of such type, and (j) obtaining and providing documents to Buyer (including draft payoff letters) relating to the repayment of the Indebtedness and the release of related guarantees and Liens in accordance with the terms of this Agreement. The Company hereby consents, on behalf of itself and the Group Companies, to the use of the logos of the Group Companies in connection with the Debt Financing; provided that such logos are used solely in a manner that is not intended to, nor is reasonably likely to, harm or disparage the Company’s or any of its Affiliates’ reputation or goodwill.
8.11.2. Notwithstanding anything in this Agreement to the contrary, (a) no Group Company nor any of their respective Representatives shall be required, under the provisions of this Section 8.11 or otherwise in connection with the Debt Financing, to pay any commitment or other similar fee or enter into any binding agreement (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) or commitment or incur any other actual or potential liability or obligation in connection with the Debt Financing prior to the Closing that is not advanced by Buyer, (b) no Group Company or any of their respective Representatives, managers, officers or employees shall be required to execute or enter into, perform or authorize any agreement with respect to the Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) that is not contingent upon the Closing or that would be effective prior to the Closing Date, (c) no Representative, manager, officer or employee of any Group Company shall be required to deliver any certificate or take any other action pursuant to this Section 8.11 to the extent any such action would reasonably be expected to result in personal liability to such Representative, manager, officer or employee, (d) no Group Company or their respective Representatives shall be required to take any action that would reasonably be expected, in the reasonable judgment of the Company, to conflict with, or result in any violation or breach of, any applicable Laws, any organizational documents of any Group Company, any contract or obligations of confidentiality (not created in contemplation hereof) binding on any Group Company, (e) no Group Company or any of their respective Representatives shall be required to take any action that would cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement, (f) no Group Company or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, the Company has, in its good faith, determined is not true, (g) no Group Companies or their respective Representatives shall be required to provide, and the Buyer will be solely responsible for the preparation of: (1) pro forma financial information; (2) any description of all or any component of the Debt Financing; or (3) projections, risk factors or other forward-looking statements relating to all or any component of the Debt Financing; and (h) no Group Company shall be required to provide access to or disclose information that the Company determines would jeopardize any attorney–client privilege or other similar privilege Directors of the Company or any committee thereof, or the Company Advisor or the Company Sub-Advisor, adopt resolutions approving the agreements, documents and instruments pursuant to which the Debt Financing is obtained or (E) except as expressly provided above, take any corporate actions prior to the Company Merger Effective Time to permit or facilitate the consummation of its Subsidiaries. Promptly the Debt Financing.
(c) Parent shall, promptly upon request by the Company, Xxxxx will reimburse the Company and its Subsidiaries for any all reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred by the Company, the Company or its Subsidiaries or any of their Representatives in connection with the such cooperation of and shall indemnify and hold harmless the Company, the Company Subsidiaries and their Representatives contemplated by this Section 8.11. Except in the case of fraud or a breach of this Agreement, Buyer shall indemnify, defend, and hold harmless the Group Companies and their respective Representatives from and against any and all losses, damages, awards, fines, penalties, expenses, feeslosses, costs, actions, demands, judgment, Taxes, fines, fees, liabilities or expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecution, investigation, defense or settlement of any of the foregoing) and other amounts suffered or incurred by any of them in connection with (i) any action taken by them at the request of Buyer pursuant to this Section 8.11 or in connection with the arrangement of the Debt Financing or (ii) and any information utilized used in connection therewith, and therewith (other than information provided by the foregoing obligations shall survive termination of this Agreement and the occurrence of the Closing. In addition, no action, liability Company or obligation of the Company, any of the Company Subsidiaries) and all other actions taken by the Company, the Company Subsidiaries or any of and their respective Representatives taken at the request of Parent pursuant to this Section 6.13, except to the extent finally determined by a court of competent jurisdiction to have arisen from the Company’s, any certificateCompany Subsidiary’s or their respective Representatives’ fraud, agreementgross negligence, arrangement, document willful misconduct or instrument relating to any Debt Financing bad faith.
(other than the execution of the authorization letters referred to in clause (c)(iid) of Section 8.11.1) will be effective until the Closing Date. All material, non-public or other confidential information regarding provided by the Group Companies provided to Buyer Company or any of its Representatives pursuant to this Section 8.11 Agreement shall be kept confidential by them in accordance with the Confidentiality Agreement except for disclosure Agreements; provided, that Parent and Merger Sub shall be permitted to potential disclose such information to any Debt Financing Sources or prospective Debt Financing Sources and other financial institutions and investors as required that are or may become parties to the Debt Commitment Letter and to any underwriters, initial purchasers or placement agents in connection with the Debt Financing Financing, or to their respective counsel and auditors subject to customary confidentiality protections. Notwithstanding anything to the contrary, the Company shall be deemed to have complied arrangements for use by any of them of such information in connection with this Section 8.11 for all purposes of this Agreement (including Article 6 and Article 7) unless the Debt Financing has not been obtained primarily as a result Financing, and to rating agencies in connection with obtaining ratings of the Company’s Willful Breach of its obligations under this Section 8.11. Notwithstanding anything herein to the contrary, Xxxxx acknowledges and agrees that obtaining any Debt Financing is not a condition to the ClosingFinancing.
Appears in 2 contracts
Samples: Merger Agreement (Griffin-American Healthcare REIT II, Inc.), Merger Agreement (Northstar Realty Finance Corp.)
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer a) The Company shall, promptly after such Debt Financing is obtained (x) provide Seller and the Company with written notice that such Debt Financing has been obtained and (y) deliver (or shall cause to be delivered) to Seller and the Company true, correct and complete copies of all arrangements pursuant to which any Financing Parties shall have committed to provide any portion of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further that, in no event shall the receipt of such Debt Financing be a condition to Closing and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. Prior to the Closing, subject to Section 8.11.2, the Company shall use reasonable best efforts Subsidiaries to, and shall use its reasonable best efforts to cause the Company Subsidiaries and its and their respective Representatives to, at the sole expense of Parent, use its and their reasonable best efforts to provide such customary cooperation as may reasonably be requested by Parent in connection with the Financing and any Replacement Financing, in each case, to the extent such assistance is customarily provided in financings comparable to the Financing or any Replacement Financing, as the case may be, including (i) designating one or more members of senior management of the Company to assist with the preparation of customary offering and syndication documents and materials, including registration statements, prospectuses and prospectus supplements, private placement or offering memoranda, bank information memoranda, bank syndication material and packages, lender and investor presentations, rating agency materials and presentations, and similar documents and materials, in connection with the Financing, (ii) designating one or more members of senior management of the Company to participate in a reasonable number of drafting sessions, management presentations, rating agency presentations, lender meetings (including one-on-one meetings) and one or more road shows, in each case, upon reasonable advance notice and at Buyer’s sole expensereasonable times, provide to Buyer such cooperation (iii) providing all information that is reasonably available or readily obtainable regarding the Company and its Subsidiaries reasonably requested by Buyer that Parent in connection with the Financing and any Replacement Financing, including (A) such information as is reasonably necessary to assist Parent in arrangingthe preparation of any pro forma financial statements required in connection therewith (it being understood that the Company need only to provide information to assist in the preparation thereof, obtaining and syndicating shall not be required to provide pro forma financial statements or pro forma adjustments reflecting (x) the Debt Financing or any description of all or any component of the Financing, if or (y) the transactions contemplated or required hereunder), (B) designating, upon request, whether any such information is suitable to be made available to lenders and other investors who do not wish to receive material non-public information, (provided that such requested cooperation is consistent with applicable Laws C) executing customary authorization letters and does not unreasonably interfere with management representation letters, and (D) providing the operations financial statements of the Group CompaniesCompany required by clause (b)(i) of paragraph (4) in Exhibit B to the Commitment Letter (the “Required Financial Information”), including as promptly as reasonably practical(iv) providing the Financing Sources with reasonable access to the properties, books and records of the Company and its Subsidiaries, (av) furnishing Buyer requesting the Company’s independent accountants to provide customary and reasonable assistance to Parent, (vi) assisting Parent in obtaining any corporate credit and family ratings and, if applicable, facility ratings from any ratings agency contemplated by the Commitment Letter or Financing Agreements, (vii) requesting the Company’s independent auditors to cooperate with the Required Financial Information Parent’s independent auditors, participate in accounting due diligence sessions and provide accountant’s comfort letters and consents, (viii) assisting in preparation of Financing Agreements and related definitive documents, guarantees (if required) and other pertinent information regarding the Group Companies certificates and documents as may be reasonably requested by Buyer for the completion of the Debt FinancingParent, (bix) participating cooperating with Parent in telephonic meetings and otherwise seeking from the Company’s existing lenders such waivers, amendments, supplements, consents or payoff letters which may be reasonably assisting with the preparation of appropriate and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies requested by Parent or necessary in connection with the Debt Financing to the extent reasonable and customary for financings of such type, (c) reasonably assisting in the preparation of (i) customary bank information memoranda, lender and investor presentations, offering documents, offering or private placement memoranda and other similar marketing documents and due diligence efforts for the Debt Financing and (ii) customary authorization and representation letters, each as required in connection with the Debt Financing, authorizing the distribution of information to prospective lenders and containing a representation that the public side of such documents, if any, do not include any information about any Group Company or any securities of any Group Company that would constitute material non-public information within the meaning of the United States federal and state securities laws if any Group Company were a public reporting company, (d) using reasonable best efforts to cause the Company’s independent registered accounting firm to provide customary assistance, including (i) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) in connection with any capital markets transaction comprising a part of the Debt Financing, (iix) providing customary consents to the inclusion of their audit report in respect of any financial statements of the Company and the Company Subsidiaries in any offering documents relating to the Debt Financing and (iii) reasonable assistance and cooperation to Buyer with respect to any auditor due diligence, (e) subject to and conditioned on the occurrence of the Closing, the taking of customary corporate actions reasonably necessary to permit the consummation of and funding of the Debt Financing, (f) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth in any definitive document relating to the Debt Financing to the extent satisfaction of such condition requires the cooperation of, or is within the control of, the Group Companies, (g) delivering to Buyer at least three (3) five Business Days prior to the anticipated Closing all such documentation and other information as is reasonably requested in writing by Buyer at least ten (10) Business Days prior to about the Closing to the extent Company or any of its Affiliates required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act Act, to the extent reasonably requested at least ten Business Days prior to the anticipated Closing and (xi) taking all corporate actions, subject to and conditioned on the requirements occurrence of 31 C.F.R. §1010.230the Effective Time, reasonably requested by Parent to permit the consummation of the Financing; provided, however, that any such requested cooperation as set forth above shall not unreasonably interfere with the ongoing operations of the Company or any of its Subsidiaries. Notwithstanding the foregoing, nothing in this Section 6.15 shall (A) require the Company or its Subsidiaries to provide any Restricted Information, (hB) facilitating take any action that would reasonably be expected to conflict with or violate any organizational documents of the Company or any of its Subsidiaries, any applicable Law, or any material agreement to which the Company or any of its Subsidiaries is a party, (C) require the Company or any of its Subsidiaries to pay any commitment or similar fee, pay or reimburse any third party expense, provide any indemnities, or incur or assume any liability or obligation, in connection with the Financing (or any other financing or refinancing transactions undertaken by Parent or its Subsidiaries in connection with the transactions contemplated hereby) prior to the Closing (except for out-of-pocket expenses incurred by the Company in connection with the cooperation provided by the Company pursuant to Section 6.15(a), for which Parent is obligated to reimburse the Company pursuant to Section 6.15(b) below), (D) subject to clause (iii)(C) of this Section 6.15(a), require the Company or any of its Subsidiaries to execute any document, agreement, certificate or instrument with respect to the Financing (or any other financing or refinancing transactions undertaken by Parent or its Subsidiaries in connection with the transactions contemplated hereby) that is not contingent on the Closing or that would be effective prior to the Effective Time, (E) require the Board of Directors of the Company or the board of directors (or other governing body) of any of the Company’s Subsidiaries to approve or authorize any Financing (or any other financing or refinancing transactions undertaken by Parent or its Subsidiaries in connection with the transactions contemplated hereby) or agreements related thereto or (F) require the Company to prepare any financial statements other than the Required Financial Information.
(b) Parent shall (i) promptly, upon request by the Company, reimburse the Company for all reasonable and assisting in documented out-of-pocket costs and expenses (including reasonable costs and expenses of counsel and accountants but excluding, for the avoidance of doubt, the costs of the preparation and delivery of any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates annual or other definitive documents relating quarterly financial statements of the Company to the Debt Financing relating to extent consistent with the Group Companiespast practice of the Company) incurred by the Company or any of its Subsidiaries in connection with any cooperation of the Company and its Subsidiaries provided under this Section 6.15 and (ii) indemnify and hold harmless the Company, its Subsidiaries and any of its and their respective businesses to be included in the definitive documents relating to the Debt FinancingRepresentatives from and against any and all claim, loss, damage, injury, liability, judgment, award, penalty, fine, Tax, cost (including cost of investigation), expense (including fees and assist with the execution expenses of counsel and delivery of the sameaccountants), settlement or other losses, in each case, solely to the extent reasonable and customary for financings actually suffered or incurred by any of such typethem, (i) cooperating with internal and external counsel of Buyer 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 Debt Financing, arrangement of Financing and any other financing or refinancing transactions undertaken by Parent or its Subsidiaries in each case, solely connection with the Merger (other than to the extent reasonable and customary for financings resulting from information provided to Parent in writing by the Company or its Subsidiaries), except in the event such claim, loss, damage, injury, liability, judgment, award, penalty, fine, Tax, cost, expense, settlement or loss arises out of such typeor results from the gross negligence, and (j) obtaining and providing documents to Buyer (including draft payoff letters) relating to the repayment willful misconduct or bad faith of the Indebtedness and Company or its Subsidiaries in fulfilling their obligations pursuant to this Section 6.15. Subject to Parent’s indemnification obligations under this Section 6.15, the release of related guarantees and Liens in accordance with the terms of this Agreement. The Company hereby consents, on behalf of itself and the Group Companies, consents to the use of the all of its and its Subsidiaries’ corporate logos of the Group Companies in connection with the Debt initial syndication or marketing of the Financing; provided provided, that such logos are used solely in a manner that is not intended to, nor is reasonably likely to, to harm or disparage the Company’s Company or any of its Affiliates’ Subsidiaries or the reputation or goodwill.
8.11.2. Notwithstanding anything in this Agreement to the contrary, (a) no Group Company nor any of their respective Representatives shall be required, under the provisions of this Section 8.11 or otherwise in connection with the Debt Financing, to pay any commitment or other similar fee or enter into any binding agreement (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) or commitment or incur any other actual or potential liability or obligation in connection with the Debt Financing prior to the Closing that is not advanced by Buyer, (b) no Group Company or any of their respective Representatives, managers, officers or employees shall be required to execute or enter into, perform or authorize any agreement with respect to the Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) that is not contingent upon the Closing or that would be effective prior to the Closing Date, (c) no Representative, manager, officer or employee of any Group Company shall be required to deliver any certificate or take any other action pursuant to this Section 8.11 to the extent any such action would reasonably be expected to result in personal liability to such Representative, manager, officer or employee, (d) no Group Company or their respective Representatives shall be required to take any action that would reasonably be expected, in the reasonable judgment of the Company, to conflict with, or result in any violation or breach of, any applicable Laws, any organizational documents of any Group Company, any contract or obligations of confidentiality (not created in contemplation hereof) binding on any Group Company, (e) no Group Company or any of their respective Representatives shall be required to take any action that would cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement, (f) no Group Company or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, the Company has, in its good faith, determined is not true, (g) no Group Companies or their respective Representatives shall be required to provide, and the Buyer will be solely responsible for the preparation of: (1) pro forma financial information; (2) any description of all or any component of the Debt Financing; or (3) projections, risk factors or other forward-looking statements relating to all or any component of the Debt Financing; and (h) no Group Company shall be required to provide access to or disclose information that the Company determines would jeopardize any attorney–client privilege or other similar privilege goodwill of the Company or any of its Subsidiaries. Promptly upon request by the Company, Xxxxx will reimburse the Company for any reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Company, the Company Subsidiaries or any of their Representatives in connection with the cooperation of the Company, the Company Subsidiaries and their Representatives contemplated by this Section 8.11. Except in the case of fraud or a breach of this Agreement, Buyer shall indemnify, defend, and hold harmless the Group Companies and their respective Representatives from and against any and all losses, damages, awards, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecution, investigation, defense or settlement of any of the foregoing) and other amounts suffered or incurred by them in connection with (i) any action taken by them at the request of Buyer pursuant to this Section 8.11 or in connection with the arrangement of the Debt Financing or (ii) any information utilized in connection therewith, and the foregoing obligations shall survive termination of this Agreement and the occurrence of the Closing. In addition, no action, liability or obligation of the Company, any of the Company Subsidiaries or any of their respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to any Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) will be effective until the Closing Date. All material, non-public information regarding the Group Companies provided to Buyer or any of its Representatives pursuant to this Section 8.11 shall be kept confidential by them in accordance with the Confidentiality Agreement except for disclosure to potential investors as required in connection with the Debt Financing subject to customary confidentiality protections. Notwithstanding anything to the contrary, the Company shall be deemed to have complied with this Section 8.11 for all purposes of this Agreement (including Article 6 and Article 7) unless the Debt Financing has not been obtained primarily as a result of the Company’s Willful Breach of its obligations under this Section 8.11. Notwithstanding anything herein to the contrary, Xxxxx acknowledges and agrees that obtaining any Debt Financing is not a condition to the Closing.
Appears in 2 contracts
Samples: Merger Agreement (Clarcor Inc.), Merger Agreement (Parker Hannifin Corp)
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, (a) During the period commencing with the execution and delivery of this Agreement and continuing until the earlier to obtain debt financing to fund any portion occur of the Purchase Price (termination of this Agreement pursuant to Article 10 and the “Debt Financing”); provided that Effective Time, the Buyer Company shall, promptly after such Debt Financing is obtained (x) provide Seller and shall cause its Subsidiaries and the Company Company’s and its Subsidiaries’ Representatives to, at Parent’s sole expense (solely with written notice that such Debt Financing has been obtained respect to reasonable and documented out-of-pocket fees, costs and expenses (y) deliver (or cause to be delivered) to Seller including those of its accountants and legal counsel)), reasonably cooperate in connection with the Company true, correct and complete copies of all arrangements pursuant to which any Financing Parties shall have committed to provide any portion arrangement of the Debt Financing; provided that any fee letters Financing as may be redacted in a customary manner; provided further that, in no event shall the receipt of such Debt Financing be a condition to Closing and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. Prior to the Closing, subject to Section 8.11.2, the Company shall use reasonable best efforts to, and shall use reasonable best efforts to cause the Company Subsidiaries and its and their respective Representatives to, in each case at Buyer’s sole expense, provide to Buyer such cooperation reasonably requested by Buyer that is reasonably necessary in arranging, obtaining and syndicating the Debt Financing, if any Parent (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the ongoing operations of the Group CompaniesCompany and its Subsidiaries). Such cooperation by the Company shall include, including at the reasonable request of Parent:
(i) agreeing to enter into such agreements and to deliver such officer’s certificates as promptly are customary in financings of such type and as reasonably practicalare, in the good faith determination of the persons executing such officer’s certificates, accurate, and agreeing to enter into credit agreements and to pledge, grant security interests in, and otherwise grant liens on, the Company’s and its Subsidiaries’ assets pursuant to such agreements;
(aii) furnishing Buyer with providing to the Required Financial Information Debt Financing Parties financial and other pertinent information regarding the Group Companies Company and its Subsidiaries that is relevant to the Debt Financing (as may be determined in the reasonable discretion of the Parent or the Debt Financing Parties) in the Company’s or its Subsidiaries’ possession or that is reasonably requested by Buyer available or that the Company or its Subsidiaries prior to the date hereof in the ordinary course of business would have produced (and in accordance with the timeframe in which such information would have been produced) (including audited and unaudited financial statements and audit reports as of and for periods both before and after the completion date hereof as are identified in paragraph 8 of Exhibit C of the Debt FinancingCommitment Letters and within the time periods set forth therein, provided that such financial statements shall be provided in a manner as is consistent with the Company’s existing practices), assisting in the preparation of any pro forma financial information or projections promptly upon request of Parent, making the Company’s and its Subsidiaries’ senior officers available at reasonable times and for a reasonable number of meetings to assist the Debt Financing Parties (b) participating including by way of participation in telephonic meetings meetings, presentations, marketing sessions and due diligence sessions with the Debt Financing Parties, prospective lenders and/or rating agencies), and otherwise reasonably cooperating in connection with the consummation of the Debt Financing (including the due diligence process) and reasonable marketing efforts with respect thereto (including assisting with the preparation of appropriate and customary materials customary presentationsfor rating agency, due diligence sessions bank information memoranda (including accounting due diligence sessionsa bank information memorandum that does not include material non-public information and the delivery of customary authorization letters with respect to the bank information memoranda executed by a senior officer of the Company) and sessions with rating agencies in connection with the Debt Financing to the extent reasonable and customary for financings of such type, (c) reasonably assisting in the preparation of (i) customary bank information memoranda, lender and investor presentations, offering documents, offering similar documents required or private placement memoranda and other similar marketing documents and due diligence efforts for the Debt Financing and (ii) customary authorization and representation letters, each as required necessary in connection with the Debt Financing, authorizing the distribution of information to prospective lenders and containing a representation that the public side of such documents, if any, do not include any information about any Group Company or any securities of any Group Company that would constitute material non-public information within the meaning of the United States federal and state securities laws if any Group Company were a public reporting company, );
(diii) using reasonable best efforts to cause obtain from the Company’s independent registered and its Subsidiaries’ accounting firm to provide customary assistance, including (i) providing customary accountants’ comfort letters (including “negative assurance comfort” and “change period comfort”) consents customary for debt financings, and assisting Parent and its counsel with information required for customary legal opinions required to be delivered in connection with therewith and cooperating in obtaining any capital markets transaction comprising a part of the Debt Financing, necessary valuations;
(iiiv) providing customary consents to the inclusion of their audit report in respect of any financial statements of the Company and the Company Subsidiaries in any offering documents relating to the Debt Financing and (iii) reasonable assistance and cooperation to Buyer with respect to any auditor due diligence, (e) subject to and conditioned on the occurrence of the Closing, the taking of customary corporate actions reasonably necessary to permit the consummation of and funding of the Debt Financing, (f) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth in any definitive document relating to the Debt Financing to the extent satisfaction of such condition requires the cooperation of, or is within the control of, the Group Companies, (g) delivering to Buyer at least three (3) the later of five Business Days prior to the Closing Date or three Business Days from the date of the request, furnishing all such documentation and other information as is about the Company and its Subsidiaries that the potential financing sources have reasonably requested in writing by Buyer at least ten (10) Business Days prior to the Closing to the extent required by U.S. regulatory authorities under connection with applicable “know your customer” and anti-money laundering rules and regulations;
(v) taking all corporate, including the PATRIOT Act and the requirements of 31 C.F.R. §1010.230limited liability company, (h) facilitating and assisting in the preparation and delivery of any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates partnership or other definitive documents relating similar actions by the Company and its Subsidiaries that are reasonably necessary to permit the consummation of the Debt Financing;
(vi) using reasonable best efforts to cooperate with Parent to satisfy any conditions precedent to the Debt Financing relating to the Group Companiesextent within the control of the Company and its Subsidiaries;
(vii) obtaining customary payoff letters, lien terminations and their respective businesses instruments of discharge to be included delivered on the Closing to allow for the payoff, discharge and termination in full on the definitive documents relating Closing of the Company Revolving Credit Facility; and
(viii) providing customary authorization letters to the Debt Financing, Financing Parties authorizing the distribution of information to prospective lenders or investors and assist containing customary representations to the Debt Financing Parties. Parent shall promptly reimburse the Company for any out-of-pocket expenses and costs reasonably incurred in connection with the Company’s or its Affiliates’ obligations under this Section 6.08(a) (in accordance with Section 6.09).
(b) Notwithstanding anything in this Agreement to the contrary:
(i) nothing in this Agreement shall require any cooperation to the extent that it would require the Board of Directors of the Company or any of its Subsidiaries to take any action that would be effective prior to the Effective Time or the Company or any of its Subsidiaries or Representatives, as applicable, to waive or amend any terms of this Agreement, agree to pay any commitment or other fees or reimburse any expenses (for which the Company is not promptly reimbursed by Parent prior to the Closing Date or termination of this Agreement) or to approve the execution or delivery of any document or certificate in connection with the Debt Financing (or any alternative financing) prior to the Effective Time;
(ii) no officer of the Company or any of its Subsidiaries who is not reasonably expected to be an officer of the Surviving Corporation shall be obligated to deliver any certificate in connection with the Debt Financing and no counsel for the Company or any of its Subsidiaries shall be obligated to deliver any opinion in connection with the Debt Financing; and
(iii) irrespective of the above, no obligation of the Company or any of its Subsidiaries under any certificate, document or instrument (other than the authorization letters referred to above) shall be effective until the Effective Time (or immediately prior thereto) and none of the Company or any of its Subsidiaries shall be required to take any action under any certificate, document or instrument that is not contingent upon the Closing (including entry into any agreement that is effective before the Effective Time or distribution of any cash by or to the Company that is effective before the Effective Time) or that would be effective prior to the Effective Time (or immediately prior thereto).
(c) If the Company shall in good faith reasonably believe that it has provided all information and assistance required from the Company for Parent to prepare the Required Financial Information (the “Company RFI Support”), it may deliver to Parent a written notice to that effect (stating when it believes it completed providing the Company RFI Support) (the “Company RFI Notice”), in which case the Company shall be deemed to have completed delivery of the sameCompany RFI Support and the Marketing Period shall commence no later than the later of (x) 30 Specified Business Days after the date hereof and (y) 10 Specified Business Days after delivery of the Company RFI Notice; provided that, if Parent in good faith reasonably believes the Company has not completed providing the Company RFI Support, then Parent may, not later than 5:00 p.m. (New York time) four Specified Business Days after the delivery of the Company RFI Notice by the Company, deliver a written notice to the Company to that effect (stating with specificity the extent to which the Company RFI Support has not been provided (the “Company RFI Support Deficiency”)), in each case, solely which case the Marketing Period shall commence no later than 10 Specified Business Days after the Company has provided the additional Company RFI Support or corrected the initial Company RFI Support in order to resolve the Company RFI Support Deficiency.
(d) The Company hereby consents to the extent reasonable use of the Company’s and customary for financings of such type, (i) cooperating with internal and external counsel of Buyer in connection with providing customary back-up certificates and factual information regarding any legal opinion that such counsel may be required to deliver its Subsidiaries’ logos in connection with the Debt Financing, in each case, solely to the extent reasonable and customary for financings of such type, and (j) obtaining and providing documents to Buyer (including draft payoff letters) relating to the repayment of the Indebtedness and the release of related guarantees and Liens in accordance with the terms of this Agreement. The Company hereby consents, on behalf of itself and the Group Companies, to the use of the logos of the Group Companies in connection with the Debt Financing; provided that such logos are used solely in a manner that is not intended to, nor is to or reasonably likely to, to harm or disparage the Company’s Company or any of its Affiliates’ Subsidiaries or the reputation or goodwill.
8.11.2. Notwithstanding anything in this Agreement to the contrary, (a) no Group Company nor any of their respective Representatives shall be required, under the provisions of this Section 8.11 or otherwise in connection with the Debt Financing, to pay any commitment or other similar fee or enter into any binding agreement (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) or commitment or incur any other actual or potential liability or obligation in connection with the Debt Financing prior to the Closing that is not advanced by Buyer, (b) no Group Company or any of their respective Representatives, managers, officers or employees shall be required to execute or enter into, perform or authorize any agreement with respect to the Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) that is not contingent upon the Closing or that would be effective prior to the Closing Date, (c) no Representative, manager, officer or employee of any Group Company shall be required to deliver any certificate or take any other action pursuant to this Section 8.11 to the extent any such action would reasonably be expected to result in personal liability to such Representative, manager, officer or employee, (d) no Group Company or their respective Representatives shall be required to take any action that would reasonably be expected, in the reasonable judgment of the Company, to conflict with, or result in any violation or breach of, any applicable Laws, any organizational documents of any Group Company, any contract or obligations of confidentiality (not created in contemplation hereof) binding on any Group Company, (e) no Group Company or any of their respective Representatives shall be required to take any action that would cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement, (f) no Group Company or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, the Company has, in its good faith, determined is not true, (g) no Group Companies or their respective Representatives shall be required to provide, and the Buyer will be solely responsible for the preparation of: (1) pro forma financial information; (2) any description of all or any component of the Debt Financing; or (3) projections, risk factors or other forward-looking statements relating to all or any component of the Debt Financing; and (h) no Group Company shall be required to provide access to or disclose information that the Company determines would jeopardize any attorney–client privilege or other similar privilege of the Company or any of its Subsidiaries. Promptly upon request by the Company, Xxxxx will reimburse the Company for any reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Company, the Company Subsidiaries or any of their Representatives in connection with the cooperation of the Company, the Company Subsidiaries logos and their Representatives contemplated by this Section 8.11. Except in the case of fraud or a breach of this Agreement, Buyer shall indemnify, defend, on such other customary terms and hold harmless the Group Companies and their respective Representatives from and against any and all losses, damages, awards, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecution, investigation, defense or settlement of any of the foregoing) and other amounts suffered or incurred by them in connection with (i) any action taken by them at the request of Buyer pursuant to this Section 8.11 or in connection with the arrangement of the Debt Financing or (ii) any information utilized in connection therewith, and the foregoing obligations shall survive termination of this Agreement and the occurrence of the Closing. In addition, no action, liability or obligation of the Company, any of the Company Subsidiaries or any of their respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to any Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) will be effective until the Closing Date. All material, non-public information regarding the Group Companies provided to Buyer or any of its Representatives pursuant to this Section 8.11 shall be kept confidential by them in accordance with the Confidentiality Agreement except for disclosure to potential investors conditions as required in connection with the Debt Financing subject to customary confidentiality protections. Notwithstanding anything to the contrary, the Company shall be deemed to have complied with this Section 8.11 for all purposes of this Agreement (including Article 6 and Article 7) unless the Debt Financing has not been obtained primarily as a result of the Company’s Willful Breach of its obligations under this Section 8.11. Notwithstanding anything herein to the contrary, Xxxxx acknowledges and agrees that obtaining any Debt Financing is not a condition to the Closingreasonably impose.
Appears in 2 contracts
Samples: Merger Agreement (NICE Ltd.), Merger Agreement (inContact, Inc.)
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of (a) From the Purchase Price (date hereof until the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (x) provide Seller and the Company with written notice that such Debt Financing has been obtained and (y) deliver Closing (or cause to be delivered) to Seller and the Company true, correct and complete copies earlier termination of all arrangements this Agreement pursuant to which any Financing Parties shall have committed to provide any portion of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further that, in no event shall the receipt of such Debt Financing be a condition to Closing and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. Prior to the ClosingSection 8.01), subject to the limitations set forth in this Section 8.11.25.05, and unless otherwise agreed by Parent, the Company shall use reasonable best efforts towill, and shall will use its reasonable best efforts to cause its Representatives and the Company Subsidiaries and its and their respective Representatives Trustee to, use its or their reasonable best efforts to cooperate with Parent in each case at Buyer’s sole expense, provide to Buyer such cooperation a timely manner as reasonably requested by Buyer that is reasonably necessary Parent in arrangingconnection with Parent’s arrangement of the Debt Financing (which, obtaining solely for purposes of this Section 5.05 and syndicating the use of the term Debt Financing Source in this Section 5.05, shall include any alternative equity or debt financings, all or a portion of which will be used to fund the Merger Consideration). Such cooperation will include:
(i) using reasonable best efforts to cooperate with the marketing efforts of Parent for all or any part of the Debt Financing, if 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 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 Parent or any Debt Financing Source, in each case, with respect to information relating to the Company in connection with such marketing efforts;
(provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the operations of the Group Companies), including as promptly as reasonably practical, (aii) furnishing Buyer Parent and the Debt Financing Sources with the Required Financial Information and any other pertinent information regarding with respect to the Group Companies Company as is reasonably requested by Parent or any Debt Financing Source and is customarily (A) required for the marketing, arrangement and syndication of financings similar to the Debt Financing or (B) used in the preparation of customary offering or information documents or rating agency, lender presentations or road shows relating to the Debt Financing; provided, that, the Company will use its reasonable best efforts to update such Required Financial Information provided to Parent pursuant to Section 5.05 as may be reasonably requested by Buyer for necessary so that such Required Financial Information does not contain any untrue statement of material fact or omit to state any material fact necessary in order to make the completion statements contained therein, in the light of the Debt Financingcircumstances under which they were made, not misleading;
(biii) participating requesting that the Company’s independent accountants participate in telephonic meetings drafting sessions and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentations, accounting due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies in connection cooperate with the Debt Financing to the extent reasonable and customary for financings of such type, (c) reasonably assisting including as set forth in the preparation Debt Letters as in effect on the date of (ithis Agreement) customary bank information memoranda, lender and investor presentations, offering documents, offering or private placement memoranda and other similar marketing documents and due diligence efforts for the Debt Financing and (ii) customary authorization and representation letters, each as required in connection with a customary offering of securities, including the type described in the Debt FinancingCommitment Letter, authorizing the distribution of information to prospective lenders and containing a representation consistent with their customary practice, including requesting that the public side of such documents, if any, do not include any information about any Group Company or any securities of any Group Company that would constitute material non-public information within the meaning of the United States federal and state securities laws if any Group Company were a public reporting company, (d) using reasonable best efforts to cause the Company’s independent registered accounting firm to they provide customary assistance, including (i) providing customary consents and comfort letters (including “negative assurance assurance” comfort” and “change period comfort”) to the extent required in connection with any capital markets transaction comprising a part the marketing and syndication of the Debt 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 Debt Financing, ;
(iiiv) providing customary consents authorization and representation letters related to the inclusion Debt Financing and obtaining or providing certificates as are customary in financings of their audit report in respect of any financial statements of the Company such type and the Company Subsidiaries in any offering other customary documents (other than legal opinions) relating to the Debt Financing as reasonably requested by Parent;
(v) furnishing all documentation and (iii) reasonable assistance and cooperation to Buyer with respect to other information required by a Governmental Entity or any auditor due diligence, (e) subject to and conditioned on the occurrence of the Closing, the taking of customary corporate actions reasonably necessary to permit the consummation of and funding of the Debt Financing, (f) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth in any definitive document relating to the Debt Financing to the extent satisfaction of such condition requires the cooperation of, or is within the control of, the Group Companies, (g) delivering to Buyer at least three (3) Business Days prior to the Closing all such documentation and information as is reasonably requested in writing by Buyer at least ten (10) Business Days prior to the Closing to the extent required by U.S. regulatory authorities Source under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and ACT (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), and/or the requirements of 31 C.F.R. §1010.230, § 1010.230 at least five (h5) facilitating and assisting in the preparation and delivery of any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents relating Business Days prior to the Debt Financing relating to the Group Companies, and their respective businesses to be included in the definitive documents relating to the Debt Financing, and assist with the execution and delivery of the same, in each case, solely anticipated Closing Date to the extent reasonably requested by Parent at least ten (10) Business Days prior to the anticipated Closing Date;
(vi) using reasonable best efforts to assist Parent in obtaining any credit ratings from rating agencies contemplated by the Debt Letters;
(vii) using reasonable best efforts to obtain such consents, waivers, estoppels, approvals, authorizations and customary for financings of such type, (i) cooperating with internal and external counsel of Buyer in connection with providing customary back-up certificates and factual information regarding any legal opinion that such counsel instruments which may be required to deliver requested by Parent in connection with the Debt Financing;
(viii) taking all reasonable and customary organizational action, in each casesubject to the occurrence of the Closing, solely reasonably requested by Parent and necessary to permit and/or authorize the consummation of the Debt Financing; and
(ix) to the extent reasonable reasonably requested by Parent, making available appropriate members of senior management of the Company to assist in the negotiation of financing agreements and customary other documents and instruments; 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 financings the Debt Financing, other than as contemplated by Section 5.05(a)(iv) or (2) any financial information in a form not customarily prepared by the Company with respect to such period.
(b) Notwithstanding anything to the contrary contained in this Agreement (including this Section 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 fees, reimburse any expenses or otherwise incur any liabilities or give any indemnities prior to the Closing, (2) unreasonably interfere with the ongoing business or operations of such typethe Company, (3) require the Company to enter into or approve any agreement or other documentation effective prior to the Closing, (4) result in any conflict with the Company Articles, the Company Bylaws or the Organizational Documents of the Trust, (5) reasonably be expected to 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 or the Trust is a party, including this Agreement, (6) reasonably be expected to result in a violation of applicable Law (including with respect to privacy of employees) or (7) reasonably be expected to threaten the loss of any attorney-client privilege or other applicable legal privilege; and (jii) obtaining and providing documents to Buyer no action, liability or obligation (including draft payoff lettersany obligation to pay any commitment or other fees or reimburse any expenses) of the Company or any of its Representatives under any certificate, agreement, arrangement, document or instrument relating to the repayment of Debt Financing (other than customary authorization and representation letters) shall be effective until the Indebtedness and the release of related guarantees and Liens in accordance with the terms of this AgreementClosing. The Company hereby consents, on behalf of itself and the Group Companies, consents to the use of the its logos of the Group Companies in connection with the Debt FinancingFinancing in a form and manner mutually agreed with the Company; provided provided, however, that such logos are used solely in a manner that is not intended tointended, nor is or reasonably likely tolikely, to harm or disparage the Company’s Company or any of its Affiliates’ the reputation or goodwill.
8.11.2. Notwithstanding anything in this Agreement to the contrary, (a) no Group Company nor any of their respective Representatives shall be required, under the provisions of this Section 8.11 or otherwise in connection with the Debt Financing, to pay any commitment or other similar fee or enter into any binding agreement (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) or commitment or incur any other actual or potential liability or obligation in connection with the Debt Financing prior to the Closing that is not advanced by Buyer, (b) no Group Company or any of their respective Representatives, managers, officers or employees shall be required to execute or enter into, perform or authorize any agreement with respect to the Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) that is not contingent upon the Closing or that would be effective prior to the Closing Date, (c) no Representative, manager, officer or employee of any Group Company shall be required to deliver any certificate or take any other action pursuant to this Section 8.11 to the extent any such action would reasonably be expected to result in personal liability to such Representative, manager, officer or employee, (d) no Group Company or their respective Representatives shall be required to take any action that would reasonably be expected, in the reasonable judgment of the Company, to conflict with, or result in any violation or breach of, any applicable Laws, any organizational documents of any Group Company, any contract or obligations of confidentiality (not created in contemplation hereof) binding on any Group Company, (e) no Group Company or any of their respective Representatives shall be required to take any action that would cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement, (f) no Group Company or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, the Company has, in its good faith, determined is not true, (g) no Group Companies or their respective Representatives shall be required to provide, and the Buyer will be solely responsible for the preparation of: (1) pro forma financial information; (2) any description of all or any component of the Debt Financing; or (3) projections, risk factors or other forward-looking statements relating to all or any component of the Debt Financing; and (h) no Group Company shall be required to provide access to or disclose information that the Company determines would jeopardize any attorney–client privilege or other similar privilege of the Company or any of its Subsidiaries. Promptly upon request by the Company, Xxxxx will reimburse the Company for any reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Company, the Company Subsidiaries or any of their Representatives in connection with the cooperation of the Company, the Company Subsidiaries and their Representatives contemplated by this Section 8.11. Except in the case of fraud or a breach of this Agreement, Buyer shall indemnify, defend, and hold harmless the Group Companies and their respective Representatives from and against any and all losses, damages, awards, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecution, investigation, defense or settlement goodwill of any of the foregoing.
(c) The Company shall, and shall use its commercially reasonable efforts to cause its Representatives to, reasonably cooperate with Parent with respect to the arrangement of an amendment or waiver to the Company’s Third Amended and Restated Credit Agreement, dated as of September 13, 2018, among the Company, The Bank of New York Mellon Trust Company, N.A., as trustee of the Trust (the “Trustee”), MUFG Union Bank, N.A., as administrative agent and as syndication agent, various issuing banks party thereto and various lending banks party thereto (the “Company Credit Agreement”), to waive the “Change in Control” (as defined in the Company Credit Agreement) that will occur upon the consummation of the Merger in order to permit the consummation of the Merger (the “Required Amendment”); provided that Parent shall be responsible for all fees and other amounts suffered or liabilities incurred by them in connection with (i) any action taken by them at the request of Buyer pursuant to this Section 8.11 or Company in connection with the arrangement of Required Amendment. Subject to the Debt Financing or (ii) any information utilized in connection therewith, agreement and the foregoing obligations shall survive termination of this Agreement and the occurrence of the Closing. In addition, no action, liability or obligation of the Company, any of the Company Subsidiaries or any of their respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to any Debt Financing (other than the execution of the authorization letters referred Required Amendment by the counterparties thereto, the Company shall execute and deliver to Parent as promptly as practicable after the date hereof the Required Amendment in clause (c)(ii) a form as reasonably requested by Parent subject to the receipt of Section 8.11.1) will be effective until the Closing Date. All material, non-public information regarding the Group Companies provided to Buyer or any of its Representatives pursuant to this Section 8.11 shall be kept confidential by them in accordance with the Confidentiality Agreement except for disclosure to potential investors as required requisite consents in connection with the Debt Financing subject Required Amendment. At the Parent’s expense, the Company shall, and shall use commercially reasonable efforts to cause its Representatives to, on a timely basis, upon the reasonable request of Parent, provide all reasonable assistance and cooperation in connection with the Required Amendment (including but not limited to requesting, and using commercially reasonable efforts to cause, the Company’s Representatives to furnish any customary confidentiality protectionscertificates or legal opinions in connection with the Required Amendment). Notwithstanding anything to the contrarycontrary in this Agreement, for the avoidance of doubt, the Company shall be deemed to have complied with this Section 8.11 for all purposes of this Agreement (including Article 6 and Article 7) unless the Debt Financing has not been obtained primarily as a result execution of the Company’s Willful Breach of its obligations under this Section 8.11. Notwithstanding anything herein to Required Amendment by the contrary, Xxxxx acknowledges and agrees that obtaining any Debt Financing is parties thereto shall not be a condition to the Closing.
(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 FEES AND EXPENSES OF COUNSEL AND ACCOUNTANTS) INCURRED BY THE COMPANY OR ANY OF ITS REPRESENTATIVES IN CONNECTION WITH ANY COOPERATION CONTEMPLATED BY THIS SECTION 5.05 AND (II) INDEMNIFY AND HOLD HARMLESS THE COMPANY AND ITS REPRESENTATIVES AGAINST ANY CLAIM, LOSS, DAMAGE, INJURY, LIABILITY, JUDGMENT, AWARD, PENALTY, FINE, COST (INCLUDING COST OF INVESTIGATION), EXPENSE (INCLUDING REASONABLE AND DOCUMENTED 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 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 GROSS NEGLIGENCE, FRAUD, BAD FAITH OR WILLFUL MISCONDUCT OF THE COMPANY OR ANY OF ITS REPRESENTATIVES AS FINALLY DETERMINED BY A COURT OF COMPETENT JURISDICTION.
Appears in 2 contracts
Samples: Merger Agreement (El Paso Electric Co /Tx/), Company Takeover Proposal
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (xa) provide Seller and the Company with written notice that such Debt Financing has been obtained and (y) deliver (or cause to be delivered) to Seller and the Company true, correct and complete copies of all arrangements pursuant to which any Financing Parties shall have committed to provide any portion of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further that, in no event shall the receipt of such Debt Financing be a condition to Closing and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. Prior to the Closing, subject to Section 8.11.2Closing Date, the Company shall use reasonable best efforts toprovide, and shall use its commercially reasonable best efforts to cause the Company Subsidiaries its Affiliates and its and their respective Representatives toits Affiliates’ representatives to provide, in each case at Buyer’s sole expense, provide to Buyer the Parent such cooperation reasonably requested by Buyer that is reasonably necessary in arranging, obtaining and syndicating the Debt Financing, if any (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the operations of the Group Companies), including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies as may be reasonably requested by Buyer for the completion Parent with respect to the arrangement of (i) Debt Financing and/or Replacement Financing and (ii) “Replacement Financing” under Section 7.22(a) of the Debt FinancingParent/Condor Merger Agreement; provided that, in each case, such requested cooperation does not unreasonably interfere with operations of the Company and its assets and that any information requested by the Parent is reasonably available to the Company or any of its Affiliates or its or their Representatives. Such cooperation shall include, without limitation, using commercially reasonable efforts to (bi) participating provide historical financial information, lease operating statements and reserve engineering reports and other similar information prepared in telephonic meetings the ordinary course of business relating to the Company’s assets and otherwise reasonably assisting all updates thereto and provide reasonable assistance to the Parent in connection with the preparation of appropriate pro forma financial information to be included in any marketing materials to be used in connection with any Debt Financing and/or Replacement Financing, (ii) provide information reasonably requested by the Parent for its preparation of materials for bank information memoranda, offering prospectuses and customary materials customary presentationsdocuments, due diligence sessions (including accounting due diligence sessions) marketing materials, rating agency presentations and sessions with rating agencies similar documents required in connection with the Debt Financing to the extent reasonable and customary for financings of such type, (c) reasonably assisting in the preparation of (i) customary bank information memoranda, lender and investor presentations, offering documents, offering or private placement memoranda and other similar marketing documents and due diligence efforts for the Debt Financing and (ii) customary authorization and representation letters, each as required in connection with the Debt and/or Replacement Financing, authorizing the distribution of information to prospective lenders and containing a representation that the public side of such documents, if any, do not include identify any information about any Group Company or any securities of any Group Company contained therein that would constitute material material, non-public information within with respect to the meaning Company or its securities or any of the its assets for purposes of foreign, United States federal and or state securities laws if any Group Company were a public reporting companylaws, (diii) using cause the independent accountants of the Company to provide reasonable best efforts assistance to cause the Parent, consistent with their professional practice, including by participating in accounting due diligence sessions (if reasonably requested by the Debt Financing Sources and/or sources of the Replacement Financing), to provide their consent to use of their audit reports relating to the Company’s independent registered accounting firm assets (if applicable) on customary terms and to provide customary assistance, including (i) providing deliver a customary comfort letters letter covering items reasonably requested by the Debt Financing Sources (including “negative assurance comfort” and “change period comfort”and/or sources providing the Replacement Financing) in connection with any capital markets transaction comprising offering memorandum or prospectus relating to a part of the Debt Financing and/or Replacement Financing, (iiiv) providing customary consents reasonably cooperate in satisfying the covenants and conditions precedent to the inclusion of their audit report in respect of any financial statements of the Company and the Company Subsidiaries in any offering documents relating to the Debt Financing and (iii) reasonable assistance and cooperation to Buyer with respect to any auditor due diligence, (e) subject to and conditioned on the occurrence of the Closing, the taking of customary corporate actions reasonably necessary to permit the consummation of and funding of the Debt Financing, (f) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth in any definitive document relating to the Debt and/or Replacement Financing to the extent satisfaction of such condition requires covenants and conditions require the cooperation ofof the Company, its Affiliates or is within the control of, the Group Companiesits or their representatives, (gv) delivering to Buyer at least three (3) Business Days prior to the Closing furnish all such documentation and other information as is reasonably requested in writing by Buyer at least ten (10) Business Days prior to the Closing to the extent required by U.S. regulatory governmental authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT U.S.A. Patriot Act of 2001 and (vi) reasonably facilitate the requirements Parent’s preparation of 31 C.F.R. §1010.230the documentation necessary to pledge and mortgage the Company’s assets that will be collateral under the Debt Financing and/or Replacement Financing, (h) facilitating and assisting including, without limitation, to reasonably assist the Parent in the its preparation and delivery of any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents disclosure schedules relating to the Debt Financing relating to the Group Companies, and their respective businesses to be included in the definitive documents relating to the Debt Financing, and assist with the execution and delivery of the same, in each case, solely to the extent reasonable and customary for financings of such type, (i) cooperating with internal and external counsel of Buyer Company’s assets in connection with providing customary back-up certificates and factual information regarding any legal opinion that such counsel may Debt Financing and/or Replacement Financing.
(k) A new Section 6.26 shall be required to deliver in connection with the Debt Financing, in each case, solely added to the extent reasonable and customary for financings of such type, and (j) obtaining and providing documents to Buyer (including draft payoff letters) relating to the repayment of the Indebtedness and the release of related guarantees and Liens in accordance with the terms of this Agreement. The Company hereby consents, on behalf of itself and the Group Companies, to the use of the logos of the Group Companies in connection with the Debt Financing; provided that such logos are used solely in a manner that is not intended to, nor is reasonably likely to, harm or disparage the Company’s or any of its Affiliates’ reputation or goodwill.
8.11.2. Notwithstanding anything in this Merger Agreement to the contrary, (a) no Group Company nor any of their respective Representatives shall be required, under the provisions of this Section 8.11 or otherwise in connection with the Debt Financing, to pay any commitment or other similar fee or enter into any binding agreement (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) or commitment or incur any other actual or potential liability or obligation in connection with the Debt Financing prior to the Closing that is not advanced by Buyer, (b) no Group Company or any of their respective Representatives, managers, officers or employees shall be required to execute or enter into, perform or authorize any agreement with respect to the Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) that is not contingent upon the Closing or that would be effective prior to the Closing Date, (c) no Representative, manager, officer or employee of any Group Company shall be required to deliver any certificate or take any other action pursuant to this Section 8.11 to the extent any such action would reasonably be expected to result in personal liability to such Representative, manager, officer or employee, (d) no Group Company or their respective Representatives shall be required to take any action that would reasonably be expected, in the reasonable judgment of the Company, to conflict with, or result in any violation or breach of, any applicable Laws, any organizational documents of any Group Company, any contract or obligations of confidentiality (not created in contemplation hereof) binding on any Group Company, (e) no Group Company or any of their respective Representatives shall be required to take any action that would cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement, (f) no Group Company or any of their respective Representatives shall be required to make any representation, warranties or certifications read as to which, the Company has, in its good faith, determined is not true, (g) no Group Companies or their respective Representatives shall be required to provide, and the Buyer will be solely responsible for the preparation of: (1) pro forma financial information; (2) any description of all or any component of the Debt Financing; or (3) projections, risk factors or other forward-looking statements relating to all or any component of the Debt Financing; and (h) no Group Company shall be required to provide access to or disclose information that the Company determines would jeopardize any attorney–client privilege or other similar privilege of the Company or any of its Subsidiaries. Promptly upon request by the Company, Xxxxx will reimburse the Company for any reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Company, the Company Subsidiaries or any of their Representatives in connection with the cooperation of the Company, the Company Subsidiaries and their Representatives contemplated by this Section 8.11. Except in the case of fraud or a breach of this Agreement, Buyer shall indemnify, defend, and hold harmless the Group Companies and their respective Representatives from and against any and all losses, damages, awards, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecution, investigation, defense or settlement of any of the foregoing) and other amounts suffered or incurred by them in connection with (i) any action taken by them at the request of Buyer pursuant to this Section 8.11 or in connection with the arrangement of the Debt Financing or (ii) any information utilized in connection therewith, and the foregoing obligations shall survive termination of this Agreement and the occurrence of the Closing. In addition, no action, liability or obligation of the Company, any of the Company Subsidiaries or any of their respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to any Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) will be effective until the Closing Date. All material, non-public information regarding the Group Companies provided to Buyer or any of its Representatives pursuant to this Section 8.11 shall be kept confidential by them in accordance with the Confidentiality Agreement except for disclosure to potential investors as required in connection with the Debt Financing subject to customary confidentiality protections. Notwithstanding anything to the contrary, the Company shall be deemed to have complied with this Section 8.11 for all purposes of this Agreement (including Article 6 and Article 7) unless the Debt Financing has not been obtained primarily as a result of the Company’s Willful Breach of its obligations under this Section 8.11. Notwithstanding anything herein to the contrary, Xxxxx acknowledges and agrees that obtaining any Debt Financing is not a condition to the Closing.follows:
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Bonanza Creek Energy, Inc.), Agreement and Plan of Merger (Extraction Oil & Gas, Inc.)
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion (a) From the date hereof until the earlier of the Purchase Price (Closing or the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (x) provide Seller and the Company with written notice that such Debt Financing has been obtained and (y) deliver (or cause to be delivered) to Seller and the Company true, correct and complete copies earlier termination of all arrangements pursuant to which any Financing Parties shall have committed to provide any portion of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further that, in no event shall the receipt of such Debt Financing be a condition to Closing and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. Prior to the Closing, subject to Section 8.11.2in accordance with Article VII, the Company shall use commercially reasonable best efforts toto provide to Parent, and shall use reasonable best efforts to cause the Company Subsidiaries its Representatives to provide or cause to be provided to Parent, on a reasonably timely basis and its and their respective Representatives to, in each case at BuyerParent’s sole expense, provide to Buyer such customary cooperation reasonably requested by Buyer that is reasonably necessary Parent in arranging, obtaining connection with the arrangement and syndicating the consummation of Parent’s Debt Financing, if any Financing (provided that that, in all cases, such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the ongoing operations of the Group Companies)Company and its Subsidiaries, including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies as may be reasonably requested by Buyer for the completion of the Debt Financing, (b) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies in connection with the Debt Financing to the extent reasonable and is customary for financings of such type, (c) reasonably assisting in a senior secured credit facility financing and does not delay or postpone the preparation of (i) customary bank information memoranda, lender and investor presentations, offering documents, offering or private placement memoranda and other similar marketing documents and due diligence efforts for the Debt Financing and (ii) customary authorization and representation letters, each as required in connection with the Debt Financing, authorizing the distribution of information to prospective lenders and containing a representation that the public side of such documents, if any, do not include any information about any Group Company or any securities of any Group Company that would constitute material non-public information within the meaning of the United States federal and state securities laws if any Group Company were a public reporting company, (d) using reasonable best efforts to cause the Company’s independent registered accounting firm to provide customary assistanceClosing), including (i) providing customary comfort letters to Parent and its Representatives pertinent financial and other information regarding the Company as shall be reasonably available to Company and reasonably be requested by Parent, including providing (including “negative assurance comfort” x) historical financial information regarding the Company reasonably requested by Parent and “change period comfort”reasonably available to Company in order for Parent to prepare the pro forma financial information required in Parent’s debt commitment letter (if any) in connection with any capital markets transaction comprising a part of the related to Parent’s Debt Financing, provided, that in no event shall the Company or its Representatives be required to provide pro forma financial statements or projections (iiprovided that the Company agrees to use commercially reasonable efforts to cooperate with Parent in its preparation of such materials), (y) providing customary consents information related to the inclusion of their audit report in respect of any financial statements of the Company and the Company Subsidiaries in any offering documents relating to the Debt Financing and (iii) reasonable assistance and cooperation to Buyer with respect to any auditor due diligence, (e) subject to and conditioned on the occurrence of the Closing, the taking of customary corporate actions reasonably necessary to permit the consummation of and funding of the Debt Financing, (f) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth in any definitive document relating to the Debt Financing to the extent satisfaction of such condition requires the cooperation of, or is within the control of, the Group Companies, (g) delivering to Buyer at least three (3) Business Days prior to the Closing all such documentation and information as is reasonably requested in writing by Buyer at least ten (10) Business Days prior to the Closing to the extent required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act Patriot Act, and (z) customary information necessary to assist Parent in completing customary disclosure schedules required by Parent’s Debt Financing; (ii) participating (and using commercially reasonable efforts to cause representatives of senior management to participate) in a reasonable and limited number of requested meetings (including customary one-on-one meetings that are requested in advance with the requirements parties acting as lead arrangers or agents for, and prospective lenders and purchasers of, Parent’s Debt Financing and representatives of 31 C.F.R. §1010.230the Company’s senior management), presentations, road shows, due diligence sessions, drafting sessions and sessions with rating agencies in connection with Parent’s Debt Financing, and otherwise cooperating with the marketing efforts for any of Parent’s Debt Financing (hincluding assisting with the timely preparation by Parent of materials for offering documents, bank information memoranda and similar documents); (iii) facilitating cooperating with Parent to obtain customary and assisting in the preparation reasonable corporate and delivery of any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents relating facilities ratings; (iv) providing executed customary authorization letters to the Debt Financing relating Sources authorizing the distribution of information to the Group Companies, prospective lenders or investors and their respective businesses to be included in the definitive documents relating containing a representation to the Debt FinancingFinancing Sources that the public side versions of such documents, if any, do not include material non-public information about the Company or its Subsidiaries or securities and assist execute ratings agency engagement letters as required in connection with Parent’s Debt Financing (provided that the Company shall not be required to pay any cost or expenses relating to rating agency engagement letters); (v) execution and delivery of customary definitive financing documentation for Parent’s Debt Financing, including pledge and security documents, guarantees, a customary closing certificate with respect to solvency matters, providing reasonable and customary information reasonably available to the sameCompany and required in connection with the pledging and identification of bank accounts, insurance and intellectual property to the extent required to close Parent’s Debt Financing and delivering stock certificates for certificated securities of the Company and its Subsidiaries (with transfer powers executed in blank); (vi) taking all corporate or similar administrative or organizational actions reasonably necessary to permit the consummation of Parent’s Debt Financing on the Closing Date and causing the direct borrowing or incurrence of all of the proceeds of Parent’s Debt Financing by the Surviving Corporation or any of its Subsidiaries concurrently with or immediately following the Effective Time; and (vii) obtaining a customary payoff letter with respect to the Company Existing Credit Facility and, subject to repayment of such Indebtedness on the Closing Date, collateral releases.
(b) Notwithstanding the provisions of this Section 5.12, nothing in this Agreement will require the Company or any of its Subsidiaries or Representatives to (i) waive or amend any terms of this Agreement or agree to pay any commitment or other fees or bear or reimburse any fees, costs or expenses (including legal and accounting) or make any payment to obtain consent or to incur any liability, in each case for which it has not received or otherwise become entitled to reimbursement or is not otherwise indemnified by or on behalf of Parent, in each case in connection with Parent’s Debt Financing, (ii) execute or deliver any certificate, document or agreement that is not contingent upon Closing or that would be effective prior to the Closing Date (other than customary authorization letters and ratings agency engagement letters in respect of Parent’s Debt Financing), (iii) give any indemnities the effectiveness of which is not conditioned on the occurrence of the Closing, (iv) take any action that will conflict with or violate its organizational documents or any applicable Law, cause any covenant, representation or warranty in this Agreement to be breached, or cause any closing condition in this Agreement to fail to be satisfied, (v) provide assistance or cooperate with Parent in connection with Parent’s Debt Financing to the extent it would interfere unreasonably with the business or operations of the Company or any of its Subsidiaries or result in any Encumbrance being placed on any of its assets prior to the Closing, (vi) require the Company, its Subsidiaries or their respective directors, officers, managers or employees to execute, deliver or enter into, or perform any agreement, document, certificate or instrument with respect to Parent’s Debt Financing (other than customary authorization letters and ratings agency engagement letters) that is not contingent upon the Closing or that would be effective prior to the Closing and the directors and managers of the Company and its Subsidiaries shall not be required to adopt resolutions approving the agreements, documents and instruments pursuant to which Parent’s Debt Financing is obtained (other than customary authorization letters and ratings agency engagement letters, in each case, solely which are effective prior to the extent reasonable and customary for financings of such typeClosing, (ivii) cooperating with internal and external counsel of Buyer in connection with providing customary back-up certificates and factual information regarding provide any legal opinion or other opinion of counsel, or any information that such counsel may would, in its good faith opinion, result in a violation of applicable law or loss of attorney-client privilege, (viii) delay or postpone the Closing to accommodate any marketing period for Parent’s Debt Financing or (ix) issue any offering or information document for a bond offering. In no event shall the Company be required in breach of this Agreement because of the failure to deliver any financial or other information that is not currently readily available to the Company on the date hereof or is not otherwise prepared in the ordinary course of business of the Company at the time requested by Parent or for the failure to obtain review of any financial or other information by its accountants that is not reviewed in the ordinary course of business of the Company at the time requested by Parent.
(c) Parent shall, promptly (and in any event within three (3) Business Days) upon request by the Company, reimburse the Company for all reasonable out-of-pocket costs and expenses incurred by the Company or its Subsidiaries in connection with the cooperation of the Company, its Subsidiaries and their respective Representatives with the arrangement of Parent’s Debt Financing (including attorneys’ and accountants’ fees, costs and other out-of-pocket expenses). Parent shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all liabilities, losses, damages, Taxes, claims, costs, expenses, interest, awards, judgments, penalties and reasonable and documented costs and expenses (including attorneys’ and auditors’ fees, costs and other out-of-pocket expenses incurred in investigating, preparing or defending the foregoing) suffered or incurred by any of them in connection with the arrangement and consummation of Parent’s Debt Financing and the performance of their respective obligations under this Section 5.12 and any information utilized in connection therewith or any actions taken and documents delivered pursuant to this Section 5.12. Parent shall ensure that any information provided to the Parent or the Debt Financing Sources under this Agreement, including in connection with Parent’s Debt Financing, in each case, solely shall be subject to the extent reasonable and customary for financings of such typeConfidentiality Agreement, and (jshall indemnify and hold harmless the Company for any losses or liabilities arising from a breach thereof in connection with Parent’s Debt Financing. This Section 5.12(c) obtaining and providing documents to Buyer (including draft payoff letters) relating to shall survive the repayment consummation of the Indebtedness Closing and the release of related guarantees and Liens in accordance with the terms any termination of this Agreement. , and is intended to benefit, and may be enforced by, the Company, its Subsidiaries and their respective Representatives and their respective heirs, executors, estates, personal representatives, successors and assigns who are each third party beneficiaries of this Section 5.12(c), and shall be binding on all successors and assigns of Parent.
(d) Notwithstanding anything to the contrary in this Agreement, the conditions set forth in Section 6.2(b), as it applies to the Company’s obligations under this Section 5.12, shall be deemed to be satisfied unless the Company has knowingly and willfully materially breached its obligations under this Section 5.12.
(e) The Company hereby consents, on behalf of itself and the Group Companies, consents to the use of the its logos of the Group Companies in connection with the Parent’s Debt Financing; provided that such logos are used solely in a manner that is not intended to, nor is reasonably likely to, harm or disparage the Company’s or any of its Affiliates’ reputation or goodwill.
8.11.2. Notwithstanding anything in this Agreement to the contrary, (a) no Group Company nor any of their respective Representatives shall be required, under the provisions of this Section 8.11 or otherwise in connection with the Debt Financing, to pay any commitment or other similar fee or enter into any binding agreement (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) or commitment or incur any other actual or potential liability or obligation in connection with the Debt Financing prior to the Closing that is not advanced by Buyer, (b) no Group Company or any of their respective Representatives, managers, officers or employees shall be required to execute or enter into, perform or authorize any agreement with respect to the Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) that is not contingent upon the Closing or that would be effective prior to the Closing Date, (c) no Representative, manager, officer or employee of any Group Company shall be required to deliver any certificate or take any other action pursuant to this Section 8.11 to the extent any such action would reasonably be expected to result in personal liability to such Representative, manager, officer or employee, (d) no Group Company or their respective Representatives shall be required to take any action that would reasonably be expected, in the reasonable judgment of the Company, to conflict with, or result in any violation or breach of, any applicable Laws, any organizational documents of any Group Company, any contract or obligations of confidentiality (not created in contemplation hereof) binding on any Group Company, (e) no Group Company or any of their respective Representatives shall be required to take any action that would cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement, (f) no Group Company or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, the Company has, in its good faith, determined is not true, (g) no Group Companies or their respective Representatives shall be required to provide, and the Buyer will be solely responsible for the preparation of: (1) pro forma financial information; (2) any description of all or any component of the Debt Financing; or (3) projections, risk factors or other forward-looking statements relating to all or any component of the Debt Financing; and (h) no Group Company shall be required to provide access to or disclose information that the Company determines would jeopardize any attorney–client privilege or other similar privilege of the Company or any of its Subsidiaries. Promptly upon request by the Companyrespective products, Xxxxx will reimburse services or intellectual property rights.
(f) Parent shall (i) keep the Company for reasonably informed of material developments in respect of its efforts to document and arrange any debt financing and (ii) promptly (and in any event within two (2) Business Day) upon the reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Company, the Company Subsidiaries or any of their Representatives in connection with the cooperation request of the Company, provide the Company Subsidiaries and their Representatives contemplated by this Section 8.11. Except in the case of fraud or a breach of this Agreement, Buyer shall indemnify, defend, and hold harmless the Group Companies and their respective Representatives from and against any and all losses, damages, awards, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecution, investigation, defense or settlement with copies of any of the foregoing) debt commitment letters and other amounts suffered or incurred by them in connection with fee letters (i) any action taken by them at the request of Buyer pursuant to this Section 8.11 or in connection with the arrangement of the Debt Financing or (ii) any information utilized in connection therewith, and the foregoing obligations shall survive termination of this Agreement and the occurrence of the Closing. In addition, no action, liability or obligation of the Company, any of the Company Subsidiaries or any of their respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to any Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) will be effective until the Closing Date. All material, non-public information regarding the Group Companies provided to Buyer or any of its Representatives pursuant to this Section 8.11 shall be kept confidential by them in accordance with the Confidentiality Agreement except for disclosure to potential investors as required in connection with the Debt Financing subject to customary confidentiality protections. Notwithstanding anything to the contrary, the Company shall be deemed to have complied with this Section 8.11 redaction for all purposes of this Agreement (including Article 6 commercially sensitive economic terms) entered into by Parent or Merger Sub and Article 7) unless the Debt Financing has not been obtained primarily as a result of the Company’s Willful Breach of its obligations under this Section 8.11. Notwithstanding anything herein to the contrary, Xxxxx acknowledges and agrees that obtaining any Debt Financing is not a condition to the Closingother material definitive debt financing agreements.
Appears in 2 contracts
Samples: Merger Agreement (Thoma Bravo Fund Xii, L.P.), Merger Agreement (Imprivata Inc)
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (xa) provide Seller and the Company with written notice that such Debt Financing has been obtained and (y) deliver (or cause to be delivered) to Seller and the Company true, correct and complete copies of all arrangements pursuant to which any Financing Parties shall have committed to provide any portion of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further that, in no event shall the receipt of such Debt Financing be a condition to Closing and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. Prior to the Closing, subject to Section 8.11.2, the each Seller and each Acquired Company shall use reasonable best efforts toshall, and shall use reasonable best efforts to cause the appropriate representatives (including senior management) of each Acquired Company Subsidiaries and its and their respective Representatives to, use reasonable best efforts to provide such cooperation as is reasonably requested by Purchaser upon reasonable prior notice in connection with the arrangement of debt financing for the Transactions (the “Debt Financing”), in each case at BuyerPurchaser’s sole cost and expense, provide including to Buyer such cooperation the extent reasonably requested by Buyer that is Purchaser: (i) reasonably necessary assisting Purchaser in arrangingthe preparation of definitive financing documents, and other materials reasonably and customarily requested to be used in connection with obtaining and syndicating the Debt Financing, if any (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the operations of the Group Companies), including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies as may be reasonably requested by Buyer for the completion of the Debt Financing, (b) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies in connection with the Debt Financing to the extent reasonable and customary for financings of such type, (c) reasonably assisting in the preparation of (i) customary bank information memoranda, lender and investor presentations, offering documents, offering or private placement memoranda and other similar marketing documents and due diligence efforts for the Debt Financing and (ii) customary authorization and representation letters, each as required in connection with the Debt Financing, authorizing the distribution of information to prospective lenders and containing a representation that the public side of such documents, if any, do not include any information about any Group Company or any securities of any Group Company that would constitute material non-public information within the meaning of the United States federal and state securities laws if any Group Company were a public reporting company, (d) using reasonable best efforts to cause the Company’s independent registered accounting firm to provide customary assistance, including (i) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) cooperate in connection with any capital markets transaction comprising a part of the Debt Financing, (ii) providing customary consents to the inclusion of their audit report in respect of any financial statements of the Company and the Company Subsidiaries in any offering documents relating to the Debt Financing and (iii) reasonable assistance and cooperation to Buyer with respect to any auditor due diligence, (e) subject to and conditioned on the occurrence of the Closing, the taking of customary corporate actions reasonably necessary to permit the consummation of and funding of the Debt Financing, (f) reasonably assisting in Buyer’s efforts to satisfy satisfying the conditions precedent set forth in any definitive document documentation relating the Debt Financing, provided that such conditions precedent do not impose on any Sellers or Acquired Company Entities any obligations not otherwise provided for in this Agreement, (ii) delivering possessory collateral (such as certificated equity and promissory notes) within its possession to the Debt Financing Sources, subject to the extent satisfaction occurrence of such condition requires the cooperation ofClosing; provided, or is within however, that the control of, delivery of any collateral shall be delivered in escrow pending release at the Group CompaniesClosing, (giii) delivering assisting Purchaser and the Debt Financing Sources in the timely preparation of any customary and reasonably ýavailable marketing materials and other information to Buyer be used in connection with the ýsyndication of the Debt Financing (including providing customary executed authorization and management representation letters), (iv) requesting customary payoff letters, lien terminations and instruments of discharge of all Indebtedness to be paid off pursuant to Section 7.03(f)(iii), (v) providing all customary documentation and other information about each of the Acquired Company Entities and each of their respective representatives as requested in connection with the Debt Financing and required under applicable “know your customer” and anti-money-laundering rules and regulations at least three (3) Business Days prior to the Closing all such documentation and information as is reasonably Date to the extent requested by Purchaser in writing by Buyer at least ten (10) Business Days days prior to the Closing Date, and (vi) taking all actions reasonably necessary or reasonably requested by the lenders or Purchaser, subject to the extent required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulationsoccurrence of the Closing, including necessary to permit the PATRIOT Act and the requirements consummation of 31 C.F.R. §1010.230, (h) facilitating and assisting in the preparation and delivery of any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents relating to the Debt Financing relating and to obtain the proceeds thereof, including taking all required corporate action to authorize the Debt Financing on the Closing Date. Sellers hereby consent to the Group Companies, and their respective businesses to be included in the definitive documents relating to the Debt Financing, and assist with the execution and delivery of the same, in each case, solely to the extent reasonable and customary for financings of such type, (i) cooperating with internal and external counsel of Buyer 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 Debt Financing, in each case, solely to the extent reasonable and customary for financings of such type, and (j) obtaining and providing documents to Buyer (including draft payoff letters) relating to the repayment of the Indebtedness and the release of related guarantees and Liens in accordance with the terms of this Agreement. The Company hereby consents, on behalf of itself and the Group Companies, to the use of the Acquired Companies’ logos of the Group Companies in connection with the Debt Financing; provided that such logos are used solely in a manner that is not intended to, nor is to or reasonably likely to, to harm or disparage the Company’s Acquired Company Entities or the reputation or goodwill of the Acquired Company Entities or their respective trademarks, products, services, offerings or Intellectual Property rights.
(b) Notwithstanding anything to the contrary in this Agreement, the obligations of the Purchaser under this Agreement are not subject to any condition or contingency relating to the ability of the Purchaser to obtain financing and neither the Acquired Company Entities nor any officer, employee, representative, or agents of any of its Affiliates’ reputation the Acquired Company Entities, shall be required to (i) provide or goodwill.
8.11.2. Notwithstanding anything prepare, and Purchaser shall be solely responsible for (with the assistance and cooperation of the Acquired Companies in this Agreement a manner consistent with Section 6.14(a) and Section 6.21), the preparation of pro forma financial information, including pro forma costs savings, synergies, capitalization or other pro forma adjustments desired to the contrarybe incorporated into any pro forma financing information, (aii) no Group Company nor any of their respective Representatives shall be required, under the provisions of this Section 8.11 or otherwise in connection with the Debt Financing, to pay any commitment or other similar fee or enter into any binding agreement (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) or commitment or incur any other actual or potential liability or obligation in connection with the Debt Financing or be required to take any action for which it would not be indemnified hereunder, to bear any cost or expense or make any other payment or agree to provide any indemnity in connection with the Debt Financing or any of the foregoing prior to the Closing that is not advanced by BuyerDate, (biii) no Group Company approve any document or other matter related to the financing or incur any liability of any kind (or cause their respective Representativesrepresentatives to incur any liability of any kind) prior to the Closing, managers, officers or employees shall be required to execute or (iv) enter into, perform or authorize into any agreement or commitment in connection with respect to the Debt Financing (other than the execution of the authorization letters referred to in clause (c)(iior any alternative financing) of Section 8.11.1) that is not contingent upon the Closing or that which would be effective prior to the Closing Dateor provide any certification or opinion of the Acquired Companies which would be effective prior to the Closing, (cv) no Representativetake any action that would (A) unreasonably interfere with the day-to-day operations of the Acquired Company Entities, (B) cause any representation, warranty, covenant or agreement in this Agreement or any other agreements, instruments and documents delivered at the Closing pursuant to this Agreement to be breached, (C) cause the Acquired Company Entities, any of their Affiliates or any director, manager, officer or employee of the Acquired Company Entities or their Affiliates to incur any Group Company shall be required to deliver any certificate or take any other action pursuant to this Section 8.11 to the extent any such action would reasonably be expected to result in personal liability to such Representative, manager, officer or employeeliability, (dD) no Group Company or their respective Representatives shall be required to take any action that would reasonably be expected, in conflict with the reasonable judgment of the Company, to conflict with, or result in any violation or breach of, any applicable Laws, any organizational documents of the Acquired Company Entities or any Group CompanyLaw, (E) change any fiscal period, or (F) authorize any corporate action effective prior to the Closing; (vi) provide any certifications prior to the Closing Date, or any existing audited or unaudited financial statements for the Acquired Company Entities other than the Financial Statements and, subject to Section 6.21, the S-X Compliant Financial Statements and the Most Recent Interim Financial Statements; or (vii) interfere with any major project bidding. Purchaser (i) shall promptly, upon request by Sellers’ Representative, reimburse Sellers’ Representative, any contract Sellers or obligations their applicable Affiliates for all reasonable and documented out-of-pocket costs incurred by Sellers’ Representative, any Seller, any of confidentiality (not created in contemplation hereof) binding on any Group Company, (e) no Group Company their Affiliates or any of their respective Representatives shall be required to take any action that would cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreementdirectors, (f) no Group Company or any of their respective Representatives shall be required to make any representationmanagers, warranties or certifications as to whichofficers, the Company hasemployees, in its good faithrepresentatives, determined is not trueconsultants, (g) no Group Companies or their respective Representatives shall be required to providefinancial advisors, and the Buyer will be solely responsible for the preparation of: (1) pro forma financial information; (2) any description of all or any component of the Debt Financing; or (3) projectionsattorneys, risk factors accountants or other forward-looking statements relating to all or any component of the Debt Financing; and (h) no Group Company shall be required to provide access to or disclose information that the Company determines would jeopardize any attorney–client privilege or other similar privilege of the Company or any of its Subsidiaries. Promptly upon request by the Company, Xxxxx will reimburse the Company for any reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Company, the Company Subsidiaries or any of their Representatives agents in connection with the cooperation of the Company, the Company Subsidiaries and their Representatives any of them as contemplated by this Section 8.11. Except in the case of fraud or a breach of this Agreement, Buyer 6.14 and (ii) shall indemnify, defend, indemnify and hold harmless the Group Companies Sellers’ Representative, Sellers, their Affiliates and their respective Representatives directors, managers, officers, employees, representatives, consultants, financial advisors, attorneys, accountants or other agents from and against any and all losses, damages, awards, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecution, investigation, defense or settlement of any of the foregoing) and other amounts actual losses suffered or incurred by them in connection with (i) any action taken by them at the request of Buyer pursuant to this Section 8.11 or in connection with the arrangement of the Debt Financing or (ii) any information utilized in connection therewith, and the foregoing obligations shall survive termination of this Agreement and the occurrence of the Closing. In addition, no action, liability or obligation of the Company, any of the Company Subsidiaries or any performance of their respective Representatives pursuant to obligations under this Section 6.14 (including any certificate, agreement, arrangement, document or instrument relating to action taken in accordance with this Section 6.14) and any Debt Financing information used in connection therewith (other than historical information related to Sellers or the execution Acquired Company Entities provided by or on behalf of Sellers’ Representative, Sellers, or the authorization letters referred to Acquired Company Entities in clause (c)(ii) of Section 8.11.1) will be effective until the Closing Date. All material, non-public information regarding the Group Companies provided to Buyer or any of its Representatives pursuant to this Section 8.11 shall be kept confidential by them in accordance with the Confidentiality Agreement except writing specifically for disclosure to potential investors as required use in connection with the Debt Financing subject to customary confidentiality protections. Notwithstanding anything to offering documents), in each case, except for any losses (x) resulting from Actual Fraud, gross negligence, willful misconduct or intentional misrepresentation on the contrarypart of Sellers or the Acquired Companies or any of their respective directors, managers, officers, employees, representatives, consultants, financial advisors, attorneys, accountants or other agents thereof or (y) resulting from any material inaccuracy in the Company shall be deemed to have complied with this Section 8.11 for all purposes of this Agreement (including Article 6 and Article 7) unless the Debt Financing has not been obtained primarily as a result of the Company’s Willful Breach of its obligations under this Section 8.11. Notwithstanding anything herein to the contrary, Xxxxx acknowledges and agrees that obtaining any Debt Financing is not a condition to the ClosingFinancial Statements.
Appears in 2 contracts
Samples: Equity Purchase Agreement (Infrastructure & Energy Alternatives, Inc.), Equity Purchase Agreement (Infrastructure & Energy Alternatives, Inc.)
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (xa) provide Seller and the Company with written notice that such Debt Financing has been obtained and (y) deliver (or cause to be delivered) to Seller and the Company true, correct and complete copies of all arrangements pursuant to which any Financing Parties shall have committed to provide any portion of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further that, in no event shall the receipt of such Debt Financing be a condition to Closing and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. Prior to the Closing, subject to Section 8.11.2, the The Company shall use its commercially reasonable best efforts toefforts, and shall cause its Subsidiaries to use commercially reasonable best efforts, and each of them shall use their commercially reasonable efforts to cause the Company Subsidiaries and its and their respective applicable Representatives toto use their commercially reasonable efforts, to provide customary cooperation, to the extent reasonably requested by Parent in writing, in each case at Buyer’s sole expense, provide to Buyer such cooperation reasonably requested by Buyer that is reasonably the extent necessary in arranging, obtaining and syndicating for the Debt Financing, if any arrangement of the Financing (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the ongoing business operations of the Group CompaniesCompany or any of its Affiliates), including as promptly as reasonably practical, using commercially reasonable efforts to:
(ai) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies as may be reasonably requested by Buyer for the completion cause appropriate members of management of the Debt FinancingCompany to participate in a reasonable number of meetings, (b) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentations, road shows, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies agencies, at reasonable times and with reasonable advance notice, and in each case which shall be virtual unless otherwise agreed to by the Company;
(ii) [reserved];
(iii) (x) furnish to Parent the Financing Information and such other historical financial information regarding the Company and its Subsidiaries as is reasonably available to the Company at such time, customarily required in connection with the Debt Financing execution of financings of a type similar to the extent Financing and reasonably requested by Parent in connection with the Financing and (y) cause the Company’s independent auditors to provide, consistent with customary practice, any customary “comfort” letters with regard to financial information relating to the Company and its Subsidiaries (including customary “negative assurance” comfort for any applicable Financing (including any Alternative Financing or permanent financing)); it being understood that the Company shall have satisfied the obligations set forth in this sentence if the Company shall have used its commercially reasonable efforts to comply with such obligations whether or not any applicable deliverables are actually obtained or provided;
(iv) provide reasonable and customary for financings of such type, (c) reasonably assisting assistance to Parent and the Lenders in the Parent’s preparation of (i) customary bank information memorandaoffering documents, lender and investor presentations, offering documents, offering or private placement memoranda memoranda, syndication memoranda, ratings agency presentations and other similar marketing documents and due diligence efforts material for the Debt Financing Financing;
(v) if and to the extent Parent elects to prepay the Company Credit Agreement at or after the Effective Time, provide customary prepayment notices within the time periods contemplated by the Company Credit Agreement and use commercially reasonable efforts to assist Parent in obtaining customary payoff letters with respect thereto at least one Business Day prior to the Closing Date and take all actions reasonably requested in connection therewith including (x) the release of all collateral, (y) the termination of all guaranties and any agreements evidencing subordination in connection therewith and (iiz) customary authorization the termination or replacement of all letters of credit outstanding thereunder, in each case to be effective at the Closing;
(vi) provide at least two (2) Business Days prior to the Closing Date all documentation and representation lettersother information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, each as required in connection with including the Debt FinancingUSA PATRIOT Act and 31 C.F.R. §1010.230, authorizing relating to the distribution of information to prospective lenders and containing a representation that the public side of such documents, if any, do not include any information about any Group Company or any securities of any Group Company that would constitute material non-public information within the meaning of the United States federal and state securities laws if any Group Company were a public reporting companyits Subsidiaries, in each case as reasonably requested by Parent at least ten (d10) using reasonable best efforts to cause the Company’s independent registered accounting firm to provide customary assistance, including (i) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) in connection with any capital markets transaction comprising a part of the Debt Financing, (ii) providing customary consents Business Days prior to the inclusion of their audit report in respect of any financial statements of Closing Date;
(vii) cooperate with Parent to obtain customary corporate and facilities credit ratings;
(viii) cooperate with the Company and the Company Subsidiaries in any offering documents relating to the Debt Financing and (iii) reasonable assistance and cooperation to Buyer with respect to any auditor Lenders’ due diligence, (e) to the extent customary and reasonable; and assist in the preparation of, and in the execution and delivery of at Closing, the Definitive Agreements, and taking all corporate and other organizational actions reasonably requested by Parent necessary to permit the Financing, subject to and conditioned on the occurrence of the Closing, the taking of customary corporate actions reasonably necessary to permit the consummation of and funding of the Debt Financing, ; and
(fix) reasonably assisting cooperate in Buyer’s efforts to satisfy satisfying the conditions precedent set forth in 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 Group CompaniesCompany and/or its Subsidiaries.
(b) The foregoing notwithstanding, none of the Company nor any of its Affiliates shall be required to take or permit the taking of any action pursuant to this Section 5.17 that could: (gi) delivering require the Company or any of its Affiliates or any persons who are officers or directors of such entities to Buyer at least three pass resolutions or consents to approve or authorize the execution of the Financing or enter into, execute or deliver any certificate, document, instrument or agreement or agree to any change or modification of any existing certificate, document, instrument or agreement (3) Business Days prior to provided that the Closing all such documentation and information as is reasonably requested in writing by Buyer at least ten (10) Business Days prior to the Closing Company will, to the extent otherwise required by U.S. regulatory authorities under applicable “know your customer” hereby, use commercially reasonable efforts to cause persons who will continue as officers or directors, as applicable, of the Company or its Subsidiaries, as applicable, after the occurrence of Closing, and anti-money laundering rules who will not be removed or replaced in connection therewith, to pass resolutions and regulationsto execute documents in each case which are subject to and conditioned upon, including and do not become effective until, the PATRIOT Act and the requirements occurrence of 31 C.F.R. §1010.230Closing), (hii) facilitating and assisting cause any representation or warranty in the preparation and delivery of any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents relating to the Debt Financing relating to the Group Companies, and their respective businesses this Agreement to be included in breached by the definitive documents relating to the Debt Financing, and assist with the execution and delivery of the same, in each case, solely to the extent reasonable and customary for financings of such type, (i) cooperating with internal and external counsel of Buyer 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 Debt Financing, in each case, solely to the extent reasonable and customary for financings of such type, and (j) obtaining and providing documents to Buyer (including draft payoff letters) relating to the repayment of the Indebtedness and the release of related guarantees and Liens in accordance with the terms of this Agreement. The Company hereby consents, on behalf of itself and the Group Companies, to the use of the logos of the Group Companies in connection with the Debt Financing; provided that such logos are used solely in a manner that is not intended to, nor is reasonably likely to, harm or disparage the Company’s or any of its Affiliates’ reputation or goodwill.
8.11.2. Notwithstanding anything in this Agreement to the contrary, (aiii) no Group require the Company nor or any of their respective Representatives shall be required, under the provisions of this Section 8.11 or otherwise in connection with the Debt Financing, its Affiliates to pay any commitment or other similar fee or enter into any binding agreement (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) or commitment or incur any other actual or potential expense, liability or obligation in connection with the Debt Financing prior or otherwise incur any obligation under any agreement, certificate, document or instrument (except, with respect to the Closing that Company and its Subsidiaries only, to the extent the effectiveness of any such fee, expense, liability or obligation is not advanced by Buyersubject to and conditioned upon the occurrence of Closing), (biv) no Group reasonably be expected to cause any director, officer, employee or stockholder of the Company or any of their respective Representativesits Affiliates to incur any personal liability, managers, officers or employees shall (v) reasonably be required expected to execute or enter into, perform or authorize any agreement conflict with respect to the Debt Financing (other than the execution organizational documents of the authorization letters referred to in clause (c)(ii) Company or any of Section 8.11.1) that is not contingent upon the Closing its Affiliates or that would be effective prior to the Closing Dateany Laws, (cvi) no Representative, manager, officer or employee of any Group Company shall be required to deliver any certificate or take any other action pursuant to this Section 8.11 to the extent any such action would reasonably be expected to result in personal liability to such Representative, manager, officer or employee, (d) no Group Company or their respective Representatives shall be required to take any action that would reasonably be expected, in the reasonable judgment of the Company, to conflict with, or result in any a material violation or breach of, any applicable Lawsor a default (with or without notice, lapse of time, or both) under, any organizational documents of any Group Company, any contract or obligations of confidentiality (not created in contemplation hereof) binding on any Group Company, (e) no Group Contract to which the Company or any of their respective Representatives shall be required to take any action that would cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreementits Affiliates is a party, (fvii) no Group Company or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, the Company has, in its good faith, determined is not true, (g) no Group Companies or their respective Representatives shall be required to provide, and the Buyer will be solely responsible for the preparation of: (1) pro forma financial information; (2) any description of all or any component of the Debt Financing; or (3) projections, risk factors or other forward-looking statements relating to all or any component of the Debt Financing; and (h) no Group Company shall be required to provide access to or disclose information that the Company determines or any of its Affiliates determine would jeopardize any attorney–-client privilege or other similar applicable privilege or protection of the Company or any of its SubsidiariesAffiliates, (viii) require the delivery of any opinion of counsel to the Company, (ix) require the Company or any of its Affiliates to prepare any financial statements or information that are not available to the Company and prepared in the ordinary course of the Company’s or the Company’s financial reporting practice or (x) require the Company or any of its Affiliates to prepare or deliver any Excluded Information. Promptly upon Nothing contained in this Section 5.17 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, Xxxxx will reimburse the Company for any reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Company, the Company Subsidiaries or any of its Affiliates for all reasonable out-of-pocket costs incurred by them or their respective Representatives in connection with the such cooperation of the Companyand shall reimburse, the Company Subsidiaries and their Representatives contemplated by this Section 8.11. Except in the case of fraud or a breach of this Agreement, Buyer shall indemnify, defend, indemnify and hold harmless the Group Companies Company and its Affiliates and their respective Representatives from and against any and all losses, damages, awards, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecution, investigation, defense or settlement of any of the foregoing) and other amounts losses suffered or incurred by them in connection with (i) the arrangement of the Financing, any action taken by them at the request of Buyer Parent or its Representatives pursuant to this Section 8.11 5.17 and any information used in connection therewith except (i) with respect to the Financing Information, (ii) to the extent such losses or expenses arise from the material breach of this Agreement by the Company or result from the gross negligence, bad faith or willful misconduct of the Company, any of its Subsidiaries or their respective Representatives or Affiliates, or (iii) with respect to any material misstatement or omission of a material fact in information provided hereunder in writing by any of the foregoing persons.
(c) The parties hereto acknowledge and agree that the provisions contained in this Section 5.17 represent the sole obligation of the Company and its Affiliates and their respective Representatives with respect to cooperation in connection with the arrangement of any financing (including the Debt Financing or (iiFinancing) any information utilized in connection therewith, and to be obtained by Parent with respect to the foregoing obligations shall survive termination of transactions contemplated by this Agreement and the occurrence Commitment Letter, and no other provision of this Agreement (including the ClosingExhibits and Schedules hereto) or the Commitment Letter shall be deemed to expand or modify such obligations. In additionno event shall the receipt or availability of any funds or financing (including the Financing) by Parent or 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, no action, liability or obligation of the Company, ’s breach of any of the covenants required to be performed by it under this Section 5.17 shall not be considered in determining the satisfaction of the condition set forth in Section 6.3(b), unless such breach is a willful and material breach and 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 Subsidiaries or any of their respective Representatives pursuant to any certificate, agreement, arrangement, document its Affiliates obtained by Parent or instrument relating to any Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) will be effective until the Closing Date. All material, non-public information regarding the Group Companies provided to Buyer or any of its Representatives pursuant to this Section 8.11 5.17 shall be kept confidential by them in accordance with the Confidentiality Agreement except for disclosure to potential investors as required in connection with the Debt Financing subject to customary confidentiality protections. Notwithstanding anything to the contrary, the Company shall be deemed to have complied with this Section 8.11 for all purposes of this Agreement (including Article 6 and Article 7) unless the Debt Financing has not been obtained primarily as a result of the Company’s Willful Breach of its obligations under this Section 8.11. Notwithstanding anything herein to the contrary, Xxxxx acknowledges and agrees that obtaining any Debt Financing is not a condition to the ClosingAgreement.
Appears in 2 contracts
Samples: Merger Agreement (Emerson Electric Co), Merger Agreement (National Instruments Corp)
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (x1) provide Seller and the Company with written notice that such Debt Financing has been obtained and (y) deliver (or cause to be delivered) to Seller and the Company true, correct and complete copies of all arrangements pursuant to which any Financing Parties shall have committed to provide any portion of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further that, in no event shall the receipt of such Debt Financing be a condition to Closing and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. Prior to the Closing, subject to Section 8.11.2at the Purchaser’s sole cost and expense, the Company shall, and shall use reasonable best efforts cause its Subsidiaries to, and shall use reasonable best efforts to cause the Company Subsidiaries and its and their respective Representatives to, use reasonable best efforts to provide the Purchaser in each case at Buyer’s sole expense, provide to Buyer such a timely manner with all cooperation reasonably requested by Buyer that the Purchaser (provided such request is made upon reasonable notice and reasonably necessary in arranging, obtaining and syndicating advance of Closing) to assist it in causing the conditions in the Debt FinancingCommitment Letter, if any which the Purchaser cannot satisfy on its own behalf, to be satisfied or as is otherwise necessary or reasonably requested by the Purchaser (provided that such requested cooperation request is consistent with applicable Laws made upon reasonable notice and does not unreasonably interfere with the operations reasonably in advance of the Group Companies), including as promptly as reasonably practical, (aClosing) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies as may be reasonably requested by Buyer for the completion of the Debt Financing, (b) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies in connection with the Debt Financing to (including the extent syndication thereof, and which term, for purposes of this Section 4.12, shall include any debt securities or other alternative financings issued or incurred in lieu thereof), including, without limitation:
(a) participation by senior executives of the Company and its Subsidiaries in a reasonable and customary for financings number of such type, meetings (cincluding one-on-one meetings) reasonably assisting in the preparation of (i) customary bank information memorandawith actual or prospective lenders or investors, lender and investor presentations, offering documentsroad shows, offering or private placement memoranda and other similar marketing documents and due diligence efforts for the Debt Financing sessions, drafting sessions and (ii) customary authorization sessions with rating agencies and representation letters, each as required their representatives in connection with the Debt Financing;
(b) providing reasonable assistance in the preparation of customary rating agency presentations, authorizing marketing materials, offering memoranda, lender and investor presentations (including “road show” presentations) and bank information memoranda necessary or advisable in connection with the distribution Debt Financing and providing reasonable assistance in the preparation of customary authorization letters by the Purchaser or its Affiliates (including as to the accuracy of information to prospective lenders and containing a representation that the public side absence of such documents, if any, do not include any information about any Group Company or any securities of any Group Company that would constitute material non-public information within information) in connection therewith to the meaning extent requested by a Debt Financing Source (provided that no offering memoranda will be issued by the Company or any of its Subsidiaries prior to the Closing);
(c) give to the Purchaser and the lead arranger, underwriters and initial purchasers in the Debt Financing, and each of their Representatives reasonable access upon prior notice to the offices, properties, books and records of the United States federal Company and state securities laws if any Group Company were a public reporting company, its Subsidiaries during normal business hours;
(d) as promptly as reasonably practicable, furnishing the Purchaser and its Debt Financing Sources with the Required Financial Information that is and remains Compliant and continuing to comply with its reporting obligations under Securities Laws through Closing;
(e) providing reasonable assistance to the Purchaser in connection with the Purchaser’s preparation of pro forma financial statements required by the Debt Commitment Letter;
(f) using reasonable best efforts to cause the Company’s independent registered accounting firm accountants of the Company and its Subsidiaries to provide reasonable and customary assistanceassistance and cooperation in connection with the Debt Financing, including participating in a reasonable number of drafting and due diligence sessions and providing (i) providing consents for use of their reports in any materials or disclosures relating to the Debt Financing where financial information of the Company, its Subsidiaries and the Joint Ventures is included and (ii) customary comfort letters (including “negative assurance assurance” comfort” and “change period comfort”) in connection with any capital markets transaction comprising a part of the Debt Financing, (ii) providing customary consents to the inclusion of their audit report in respect of any financial statements the Required Financial Information and confirmation that such auditors are prepared to deliver such consents and comfort letters throughout the Marketing Period;
(g) using reasonable best efforts to cause the independent “qualified persons” within the meaning of NI 43-101 who participated in the preparation of technical reports filed on behalf of the Company to participate in due diligence sessions and to provide customary consents and other written confirmations with respect to technical information regarding the Company Subsidiaries Joint Ventures in any offering documents materials or disclosures relating to the Debt Financing and (iiiprovided that, for greater certainty, nothing in this Agreement shall require the Company to update or prepare new technical reports in respect of any of its mineral projects);
(h) providing reasonable assistance to facilitate the pledging of collateral and cooperation to Buyer with the granting of security interests in respect to any auditor due diligence, (e) subject to and conditioned on the occurrence of the Closing, the taking of customary corporate actions reasonably necessary to permit the consummation of and funding of the Debt FinancingFinancing to the extent required by the Debt Commitment Letter; provided that such pledge of collateral, (f) reasonably assisting in Buyer’s efforts to satisfy granting of security interests and any such obligations of the conditions precedent set forth in Company and its Subsidiaries under any definitive agreement related thereto or other agreement or document relating to the Debt Financing shall be conditioned upon and not become effective until the Closing;
(i) providing reasonable assistance to the extent satisfaction Purchaser in connection with obtaining customary corporate and facilities ratings, surveys and title insurance (including such affidavits and non-imputation endorsements in connection therewith);
(j) assisting with obtaining customary lien and guarantee terminations and instruments of such condition requires discharge to be delivered at the cooperation of, or is within the control of, the Group Companies, Closing; and
(gk) delivering to Buyer at least three (3) Business Days prior to the Closing Effective Date, furnishing the Purchaser and the Debt Financing Sources with all such documentation and other information as is reasonably requested by the Purchaser in writing by Buyer at least ten (10) Business Days prior to the Closing to the extent required by U.S. regulatory authorities under connection with applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Patriot Act and the requirements applicable Laws of 31 C.F.R. §1010.230Canada.
(2) The Company shall use reasonable best efforts to obtain, at least three Business Days prior to the Closing, and shall obtain prior to the Closing, a customary payoff letter with respect to the Existing Senior Secured Credit Agreement, providing for the termination of all Liens securing obligations under the Existing Senior Secured Credit Agreement and the termination of the Existing Senior Secured Credit Agreement, all guarantees thereof and all related documents (other than obligations thereunder which expressly survive termination), upon payment of all obligations owing under the Existing Senior Secured Credit Agreement as of the Closing. The Purchaser acknowledges that in the case of letters of credit outstanding under the Existing Senior Secured Credit Agreement, it will be required to replace such letters of credit or provide alternative security in respect thereof at (but not prior to) the Closing.
(3) Nothing in this Section 4.12 shall require the Company or any of its Subsidiaries to (i) waive or amend any terms of this Agreement or pay or agree to pay any fees or incur any cost, expense or liability or reimburse any expenses prior to the Effective Time for which it has not received prior reimbursement or is not otherwise indemnified or required to be reimbursed by or on behalf of the Purchaser, or to give any indemnities that are effective prior to the Closing, (hii) facilitating take any action that would unreasonably interfere with the ongoing operations of Company or its Subsidiaries, (iii) take any action or do anything that would contravene Law or any Contract; (iv) disclose any information in violation of Section 4.5 hereof, (v) commit to take any action that, other than the actions contemplated by this Section 4.12, is not conditioned upon and assisting in the preparation and delivery of shall not become effective until Closing, or (vi) execute or enter into or perform any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents relating agreement with respect to the Debt Financing relating contemplated by the Debt Commitment Letter or otherwise that is not conditioned upon and shall not become effective until Closing. All nonpublic or otherwise confidential information regarding the Company and its Subsidiaries obtained by the Purchaser, the Debt Financing Sources or their respective Representatives pursuant to the Group Companiesforegoing is information which is subject to the Confidentiality Agreement and will be treated in accordance with the Confidentiality Agreement, except that Purchaser will be permitted to disclose such information to any lead arranger, underwriter or initial purchaser in the Debt Financing and their respective businesses Representatives so long as each such Person to be included in the definitive documents relating to the Debt Financing, and assist with the execution and delivery of the same, in each case, solely to the extent reasonable and customary for financings of whom such type, information is disclosed (i) cooperating with internal and external counsel of Buyer in connection with providing agrees to be bound by the Confidentiality Agreement as if a party thereto or (ii) is subject to customary back-up certificates and factual confidentiality obligations. To the extent any information regarding any legal opinion that such counsel may be the Purchaser reasonably determines is required to deliver be disclosed in connection with the Debt FinancingFinancing is subject to confidentiality restrictions that would not permit such disclosure, the Parties will cooperate and use their respective reasonable best efforts to seek consent to permit such disclosure; provided, that no disclosure will be made that would cause the Company and its Subsidiaries to violate any confidentiality obligation to a third party, it being understood that the Purchaser may disclose the matters listed on Section 4.12(3) of the Company Disclosure Letter. No cooperation by the Company pursuant to this Section 4.12 shall be considered to constitute a breach of the representations, warranties or covenants of the Company hereunder or be considered in each casedetermining whether any of the conditions in Section 6.1 or Section 6.2 have been satisfied.
(4) The Purchaser shall, solely within 30 days after written request by the Company, reimburse the Company for all reasonable and reasonably documented costs and expenses incurred by the Company and its Subsidiaries and its and their respective officers, directors, managers, employees, consultants, counsel, accountants, agents, advisors and other representatives (collectively, the “Company Related Parties”) in connection with their respective obligations pursuant to this Section 4.12. The Purchaser indemnifies and holds the Company Related Parties harmless from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred by any of them in connection with or as a result of any arrangement of any Debt Financing or as a result of the cooperation provided under this Section 4.12 or any actions or omissions by any of them requested by the Purchaser pursuant to this Section 4.12 and for any alleged misstatement or omission in any information provided hereunder at the request of the Purchaser, except to the extent reasonable and customary for financings resulting from, or by reason of, information provided in writing by or at the direction of such type, and (j) obtaining and providing documents to Buyer (including draft payoff letters) relating the Company Related Parties or to the repayment extent that such losses resulted from the willful misconduct, fraud or gross negligence of the Indebtedness and the release of related guarantees and Liens in accordance with the terms of this Agreement. Company or its Representatives.
(5) The Company hereby consents, on behalf of itself and the Group Companies, consents to the use of the logos names of the Group Companies Company and its Subsidiaries and, to the extent permitted under the Joint Venture Agreements, the Joint Ventures and related logos by the Purchaser in any offering documents, information memoranda, investor or lender presentations or other marketing materials used in connection with the Debt Financing; provided provided, however, that such names and related logos are used solely in a manner that is not intended to, nor or that is not reasonably likely to, harm or disparage the Company’s or any of its Affiliates’ reputation or goodwill.
8.11.2. Notwithstanding anything in this Agreement to the contrary, (a) no Group Company nor any of their respective Representatives shall be required, under the provisions of this Section 8.11 or otherwise in connection with the Debt Financing, to pay any commitment or other similar fee or enter into any binding agreement (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) or commitment or incur any other actual or potential liability or obligation in connection with the Debt Financing prior to the Closing that is not advanced by Buyer, (b) no Group Company or any of their respective Representatives, managers, officers or employees shall be required to execute or enter into, perform or authorize any agreement with respect to the Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) that is not contingent upon the Closing or that would be effective prior to the Closing Date, (c) no Representative, manager, officer or employee of any Group Company shall be required to deliver any certificate or take any other action pursuant to this Section 8.11 to the extent any such action would reasonably be expected to result in personal liability to such Representative, manager, officer or employee, (d) no Group Company or their respective Representatives shall be required to take any action that would reasonably be expected, in the reasonable judgment of the Company, to conflict with, or result in any violation or breach of, any applicable Laws, any organizational documents of any Group Company, any contract or obligations of confidentiality (not created in contemplation hereof) binding on any Group Company, (e) no Group Company or any of their respective Representatives shall be required to take any action that would cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement, (f) no Group Company or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, the Company has, in its good faith, determined is not true, (g) no Group Companies or their respective Representatives shall be required to provide, and the Buyer will be solely responsible for the preparation of: (1) pro forma financial information; (2) any description of all or any component of the Debt Financing; or (3) projections, risk factors or other forward-looking statements relating to all or any component of the Debt Financing; and (h) no Group Company shall be required to provide access to or disclose information that the Company determines would jeopardize any attorney–client privilege or other similar privilege of the Company or any of its Subsidiaries. Promptly upon request by ’ or the Company, Xxxxx will reimburse Joint Ventures reputation or goodwill.
(6) The Parties acknowledge and agree that the provisions contained in this Section 4.12 represent the sole obligations of the Company for any reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Company, the Company its Subsidiaries or any of their Representatives in connection with the respect to cooperation of the Company, the Company Subsidiaries and their Representatives contemplated by this Section 8.11. Except in the case of fraud or a breach of this Agreement, Buyer shall indemnify, defend, and hold harmless the Group Companies and their respective Representatives from and against any and all losses, damages, awards, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecution, investigation, defense or settlement of any of the foregoing) and other amounts suffered or incurred by them in connection with (i) any action taken by them at the request of Buyer pursuant to this Section 8.11 or in connection with the arrangement of the Debt Financing or (ii) any information utilized in connection therewith, and the foregoing obligations shall survive termination of this Agreement and the occurrence of the Closing. In addition, no action, liability or obligation of the Company, any of the Company Subsidiaries or any of their respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to any Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) will be effective until the Closing Date. All material, non-public information regarding the Group Companies provided to Buyer or any of its Representatives pursuant to this Section 8.11 shall be kept confidential by them in accordance with the Confidentiality Agreement except for disclosure to potential investors as required in connection with the Debt Financing subject to customary confidentiality protections. Notwithstanding anything to the contrary, the Company shall be deemed to have complied with this Section 8.11 for all purposes of this Agreement (including Article 6 and Article 7) unless the Debt Financing has not been obtained primarily as a result of the Company’s Willful Breach of its obligations under this Section 8.11. Notwithstanding anything herein to the contrary, Xxxxx acknowledges and agrees that obtaining any Debt Financing is not a condition to the ClosingFinancing.
Appears in 2 contracts
Samples: Arrangement Agreement, Arrangement Agreement (Dominion Diamond Corp)
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (x) provide Seller and the Company with written notice that such Debt Financing has been obtained and (y) deliver (or cause to be delivered) to Seller and the Company true, correct and complete copies of all arrangements pursuant to which any Financing Parties shall have committed to provide any portion of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further that, in no event shall the receipt of such Debt Financing be a condition to Closing and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. Prior to the Closing, subject to Section 8.11.2, the Company shall use reasonable best efforts to, and Sellers shall use reasonable best efforts to cause the Company Subsidiaries and its and their respective Representatives to, in each case at Buyer’s sole expense, provide to Buyer such Purchaser all reasonable cooperation reasonably requested by Buyer Purchaser that is reasonably necessary in arranging, obtaining and syndicating connection with the Debt Financing, if any including (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the operations of the Group Companies), including as promptly as reasonably practical, x) using reasonable best efforts to (a) furnishing Buyer participate, at reasonable times and upon reasonable notice, in a reasonable number of meetings (including customary meetings with the Required Financial Information parties acting as lead arrangers or agents for, and other pertinent information regarding the Group Companies as may be reasonably requested by Buyer for the completion of prospective lenders and purchasers of, the Debt Financing), (b) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentations, road shows, due diligence sessions, drafting sessions (including accounting due diligence sessions) and sessions with rating agencies in connection with the Debt Financing, (b) assist Purchaser and its Financing Sources in the preparation of customary offering memoranda, bank information memoranda, rating agency presentations and lender presentations relating to the extent reasonable and customary for financings of such typeDebt Financing, (c) reasonably assisting in the preparation of (i) customary bank information memoranda, lender and investor presentations, offering documents, offering or private placement memoranda and other similar marketing documents and due diligence efforts for the Debt Financing and (ii) customary authorization and representation letters, each as required in connection cooperate with the Debt Financing, authorizing the distribution marketing efforts of information to prospective lenders Purchaser and containing a representation that the public side of such documents, if any, do not include any information about any Group Company its Financing Sources for all or any securities of any Group Company that would constitute material non-public information within the meaning of the United States federal and state securities laws if any Group Company were a public reporting company, (d) using reasonable best efforts to cause the Company’s independent registered accounting firm to provide customary assistance, including (i) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) in connection with any capital markets transaction comprising a part portion of the Debt Financing, (iid) providing customary consents to provide and execute documents as may be reasonably requested by Purchaser or its Financing Sources, (e) execute and deliver any pledge and security documents and otherwise facilitate the inclusion pledging of their audit report in respect collateral, and (f) provide such information about powers of any financial statements attorney executed on behalf of the Company Transferred Entities as may be reasonably requested by Purchaser or its Financing Sources, and the Company Subsidiaries (y) using commercially reasonable efforts to assist in any offering documents relating obtaining accountant's comfort letters and legal opinions reasonably requested by Purchaser and customary for financings similar to the Debt Financing Financing; provided, however, that, (i) irrespective of the above, no obligation of the Sellers or any of their Affiliates under any certificate, document or instrument shall be effective until the Closing and none of the Sellers or any of their Affiliates shall be required to take or commit to take any action under any certificate, document or instrument that is not contingent upon the Closing (including the entry into any agreement that is effective before the Closing) or that would be effective prior to the Closing, (ii) nothing herein shall require such cooperation to the extent it would interfere unreasonably with the business or operations of the Sellers or their Affiliates or encumber any assets of the Sellers or their Affiliates, and (iii) reasonable assistance and cooperation to Buyer with respect to any auditor due diligence, (e) subject to and conditioned on the occurrence none of the Closing, the taking Sellers or any of customary corporate actions reasonably necessary their Affiliates shall be required to permit the consummation of and funding of the Debt Financing, (f) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth in issue any definitive document relating offering or information document. Notwithstanding anything to the Debt Financing to the extent satisfaction of such condition requires the cooperation of, or is within the control of, the Group Companies, contrary in this Agreement (g) delivering to Buyer at least three (3) Business Days prior to the Closing all such documentation and information as is reasonably requested in writing by Buyer at least ten (10) Business Days prior to the Closing to the extent required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act and the requirements of 31 C.F.R. §1010.230, (h) facilitating and assisting in the preparation and delivery of any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents relating to the Debt Alternative Financing relating to the Group Companies, and their respective businesses to be included in the definitive documents relating to the Debt Financing, and assist with the execution and delivery of the samecontemplated by Section 5.18(c)), in each case, solely no event shall Sellers or any of their Affiliates be obligated to the extent reasonable and customary for financings of such type, (i) cooperating provide Purchaser with internal and external counsel of Buyer any cooperation that would not otherwise be necessary in connection with providing customary back-up certificates the type of Debt Financing contemplated by the Debt Commitment Letter entered into by Purchaser as of the date hereof and factual information regarding attached as Exhibit C. None of the Sellers or any legal opinion that such counsel may of their Affiliates shall be required to deliver bear any cost or expense or to pay any commitment or other similar fee or make any other payment (unless such payment is promptly reimbursed by Purchaser) or incur any other liability in connection with the Debt Financing, in each case, solely Financing or any of the foregoing prior to the extent reasonable Closing. Purchaser shall indemnify and customary for financings hold harmless the Sellers, their Affiliates 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 such type, and (j) obtaining and providing documents to Buyer the Debt Financing (including draft payoff lettersany action taken in accordance with this Section 5.19) and any information utilized in connection therewith (other than historical information relating to the repayment Sellers or their Subsidiaries provided by the Sellers in writing specifically for use in the Debt Financing offering documents). Purchaser shall, promptly upon request by the Sellers, reimburse the Sellers for all documented and reasonable out-of-pocket costs (including reasonable fees and expenses of outside counsel and other advisors) incurred by the Indebtedness and the release of related guarantees and Liens Sellers or their Affiliates in accordance connection with the terms of this AgreementSection 5.19. The Company Sellers hereby consents, on behalf of itself and the Group Companies, consent to the use of the their and their Subsidiaries’ logos of the Group Companies in connection with the Debt Financing; provided that such logos are shall be used solely in a manner customary for financing transactions of this type and in a manner that is not intended to, nor is or reasonably likely toto harm, harm or disparage the Company’s or any of its Affiliates’ reputation or goodwill.
8.11.2. Notwithstanding anything in this Agreement to the contrary, (a) no Group Company nor any of their respective Representatives shall be required, under the provisions of this Section 8.11 or otherwise in connection with adversely affect the Debt Financing, to pay any commitment or other similar fee or enter into any binding agreement (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) or commitment or incur any other actual or potential liability or obligation in connection with the Debt Financing prior to the Closing that is not advanced by Buyer, (b) no Group Company Sellers or any of their respective Representatives, managers, officers or employees shall be required to execute or enter into, perform or authorize any agreement with respect to the Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) that is not contingent upon the Closing or that would be effective prior to the Closing Date, (c) no Representative, manager, officer or employee of any Group Company shall be required to deliver any certificate or take any other action pursuant to this Section 8.11 to the extent any such action would reasonably be expected to result in personal liability to such Representative, manager, officer or employee, (d) no Group Company or their respective Representatives shall be required to take any action that would reasonably be expected, in the reasonable judgment of the Company, to conflict with, or result in any violation or breach of, any applicable Laws, any organizational documents of any Group Company, any contract or obligations of confidentiality (not created in contemplation hereof) binding on any Group Company, (e) no Group Company or any of their respective Representatives shall be required to take any action that would cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement, (f) no Group Company or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, the Company has, in its good faith, determined is not true, (g) no Group Companies or their respective Representatives shall be required to provide, and the Buyer will be solely responsible for the preparation of: (1) pro forma financial information; (2) any description of all or any component of the Debt Financing; or (3) projections, risk factors or other forward-looking statements relating to all or any component of the Debt Financing; and (h) no Group Company shall be required to provide access to or disclose information that the Company determines would jeopardize any attorney–client privilege or other similar privilege of the Company or any of its Subsidiaries. Promptly upon request by the Company, Xxxxx will reimburse the Company for any reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Company, the Company Subsidiaries or any of their Representatives in connection with the cooperation of the Company, the Company Subsidiaries and their Representatives contemplated by this Section 8.11. Except in the case of fraud or a breach of this Agreement, Buyer shall indemnify, defend, and hold harmless the Group Companies and their respective Representatives from and against any and all losses, damages, awards, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecution, investigation, defense or settlement of any of the foregoing) and other amounts suffered or incurred by them in connection with (i) any action taken by them at the request of Buyer pursuant to this Section 8.11 or in connection with the arrangement of the Debt Financing or (ii) any information utilized in connection therewith, and the foregoing obligations shall survive termination of this Agreement and the occurrence of the Closing. In addition, no action, liability or obligation of the Company, any of the Company Subsidiaries or any of their respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to any Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) will be effective until the Closing Date. All material, non-public information regarding the Group Companies provided to Buyer or any of its Representatives pursuant to this Section 8.11 shall be kept confidential by them in accordance with the Confidentiality Agreement except for disclosure to potential investors as required in connection with the Debt Financing subject to customary confidentiality protections. Notwithstanding anything to the contrary, the Company shall be deemed to have complied with this Section 8.11 for all purposes of this Agreement (including Article 6 and Article 7) unless the Debt Financing has not been obtained primarily as a result of the Company’s Willful Breach of its obligations under this Section 8.11. Notwithstanding anything herein to the contrary, Xxxxx acknowledges and agrees that obtaining any Debt Financing is not a condition to the Closing.
Appears in 2 contracts
Samples: Stock and Asset Purchase Agreement (Chemtura CORP), Stock and Asset Purchase Agreement (Platform Specialty Products Corp)
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of (a) From and after the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (x) provide Seller and the Company with written notice that such Debt Financing has been obtained and (y) deliver (or cause to be delivered) to Seller and the Company true, correct and complete copies of all arrangements pursuant to which any Financing Parties shall have committed to provide any portion of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further that, in no event shall the receipt of such Debt Financing be a condition to Closing and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. Prior to the Closing, subject to Section 8.11.2date hereof, the Company shall, and shall cause its subsidiaries to, and shall use its reasonable best efforts to cause its and its subsidiaries’ representatives to, cooperate with Walgreens and Alliance Boots in connection with any Debt Financing in the following manner (in each case to the extent reasonably required in connection with any such Debt Financing):
(i) furnish the report(s) of the auditors with respect to the audited financial statements of the Company and its subsidiaries, and use reasonable best efforts toto obtain the consent of such auditors to the use of such report(s) in accordance with normal custom and practice with respect to any such Debt Financing, and shall use reasonable best efforts to cause the Company Subsidiaries and its and their respective Representatives to, in each case at Buyer’s sole expense, provide to Buyer such cooperation reasonably requested by Buyer that is reasonably necessary in arranging, obtaining and syndicating the Debt Financing, if any (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the operations of the Group Companies), including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies as may be reasonably requested by Buyer for the completion of the Debt Financing, (b) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies in connection with the Debt Financing to the extent reasonable and customary for financings of such type, (c) reasonably assisting in the preparation of (i) customary bank information memoranda, lender and investor presentations, offering documents, offering or private placement memoranda and other similar marketing documents and due diligence efforts for the Debt Financing and (ii) customary authorization and representation letters, each as required in connection with the Debt Financing, authorizing the distribution of information to prospective lenders and containing a representation that the public side of such documents, if any, do not include any information about any Group Company or any securities of any Group Company that would constitute material non-public information within the meaning of the United States federal and state securities laws if any Group Company were a public reporting company, (d) using reasonable best efforts to cause the Company’s independent registered accounting firm auditors to provide customary assistance, including (i) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) to the underwriters, initial purchasers or placement agents, as applicable, in connection with any capital markets transaction comprising a part of the such Debt Financing, ;
(ii) providing customary consents furnish Walgreens and Alliance Boots (and their respective representatives) with additional financial statements, schedules or other financial data relating to the inclusion of their audit report in respect of any financial statements of the Company and the Company Subsidiaries in any offering documents relating to the Debt Financing its subsidiaries and assist Walgreens and Alliance Boots (iii) reasonable assistance and cooperation to Buyer with respect to any auditor due diligence, (e) subject to and conditioned on the occurrence of the Closing, the taking of customary corporate actions reasonably necessary to permit the consummation of and funding of the Debt Financing, (f) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth in any definitive document relating to the Debt Financing to the extent satisfaction of such condition requires the cooperation of, or is within the control of, the Group Companies, (g) delivering to Buyer at least three (3) Business Days prior to the Closing all such documentation and information as is reasonably requested in writing by Buyer at least ten (10) Business Days prior to the Closing to the extent required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act and the requirements of 31 C.F.R. §1010.230, (h) facilitating and assisting in the preparation and delivery of any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents relating to the Debt Financing relating to the Group Companies, and their respective businesses to be included in the definitive documents relating to the Debt Financing, and assist representatives) with the execution and delivery of the samepreparing pro forma financial statements, in each case, solely as reasonably requested in connection with any such Debt Financing (it being understood that none of Walgreens, Alliance Boots or any of their Affiliates (or any of their respective representatives) shall be permitted to disclose (whether by including such information in, or reflecting such information on, their financial statements or otherwise) any financial information provided by the Company pursuant to this clause (ii) prior to the Company first publicly disclosing such information in its ordinary course of business);
(iii) reasonably cooperate with the due diligence of the proposed lenders, underwriters, initial purchasers, ratings agencies or placement agents, as applicable, and/or Walgreens, Alliance Boots and their respective representatives in connection with any such Debt Financing, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of the Company (and in the case of the provision of information, to the extent already existing or that can be prepared without excessive cost or management time), and only as long as any person involved in such due diligence enters into a confidentiality agreement with the Company in customary for financings form and substance reasonably acceptable to the Company; provided, however, that none of such typethe Company, (i) cooperating with internal and external counsel of Buyer in connection with providing customary back-up certificates and factual information regarding any legal opinion that such counsel may its subsidiaries or their respective representatives shall be required to deliver any opinions, 10b-5 statements or officer’s certificates in connection with any such due diligence efforts; provided, further that none of the Debt FinancingCompany, in each case, solely its subsidiaries or their respective representatives shall be required to provide any cooperation or information to the extent that (x) such information is competitively sensitive, (y) providing such cooperation or information (A) would reasonably be expected to jeopardize attorney-client privilege or loss of attorney work product protection, (B) would violate a confidentiality obligation to any person or (C) would violate any applicable law; provided, that with respect to clauses (x) and (y), the Company uses reasonable and customary for financings of such typeefforts, and cooperates in good faith with Walgreens and/or Alliance Boots, as applicable, to develop and implement reasonable alternative arrangements to provide Walgreens and Alliance Boots (jand their respective representatives) obtaining and providing documents with the intended benefits of this Section 3.7; and
(iv) reasonably assist in the review or preparation of applicable portions (i.e., to Buyer (including draft payoff letters) the extent relating to the repayment Company) of the Indebtedness one or more confidential information memoranda, prospectuses, offering memoranda and the release of related guarantees other marketing and Liens in accordance with the terms of this Agreement. The Company hereby consents, on behalf of itself and the Group Companies, to the use of the logos of the Group Companies syndication materials in connection with the such Debt Financing; provided that such logos are used solely in a manner that is not intended to, nor is reasonably likely to, harm or disparage the Company’s or any of its Affiliates’ reputation or goodwill.
8.11.2. (b) Notwithstanding anything in this Agreement Section 3.7 to the contrary, (a) no Group in fulfilling obligations of the Company pursuant to this Section 3.7, neither the Company nor any of their respective Representatives its subsidiaries shall be required, under the provisions of this Section 8.11 or otherwise in connection with the Debt Financing, required to pay any commitment or other similar fee fee, provide any security or incur any other liability or execute or enter into any binding agreement (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) or commitment or incur any other actual or potential liability or obligation in connection with the Debt Financing prior to the Closing that is not advanced by Buyer, (b) no Group Company or any of their respective Representatives, managers, officers or employees shall be required to execute or enter into, perform or authorize any agreement with respect to the Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) that is not contingent upon the Closing or that would be effective prior to the Closing Date, (c) no Representative, manager, officer or employee of any Group Company shall be required to deliver any certificate or take any other action pursuant to this Section 8.11 to the extent any such action would reasonably be expected to result in personal liability to such RepresentativeDebt Financing. Walgreens and Alliance Boots shall promptly, manager, officer or employee, (d) no Group Company or their respective Representatives shall be required to take any action that would reasonably be expected, in the reasonable judgment of upon request by the Company, to conflict with, or result in any violation or breach of, any applicable Laws, any organizational documents of any Group Company, any contract or obligations of confidentiality (not created in contemplation hereof) binding on any Group Company, (e) no Group Company or any of their respective Representatives shall be required to take any action that would cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement, (f) no Group Company or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, reimburse the Company has, in its good faith, determined is not true, (g) no Group Companies or their respective Representatives shall be required to provide, for all reasonable out of pocket costs and the Buyer will be solely responsible for the preparation of: (1) pro forma financial information; (2) any description of all or any component of the Debt Financing; or (3) projections, risk factors or other forward-looking statements relating to all or any component of the Debt Financing; and (h) no Group Company shall be required to provide access to or disclose information that the Company determines would jeopardize any attorney–client privilege or other similar privilege of expenses incurred by the Company or any of its Subsidiaries. Promptly upon request by the Company, Xxxxx will reimburse the Company for any reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Company, the Company Subsidiaries or any of their Representatives subsidiaries in connection with the cooperation of the Company, the Company Subsidiaries and their Representatives its subsidiaries contemplated by this Section 8.113.7. Except in the case of fraud or a breach For purposes of this Agreement, Buyer shall indemnify, defend, and hold harmless the Group Companies and their respective Representatives from and against “Debt Financing” means any and all losses, damages, awards, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecution, investigation, defense or settlement of any of the foregoing) and other amounts suffered or debt financing incurred by them Walgreens or Alliance Boots, as applicable, for purposes of exercising the Warrants and/or acquiring Initial Open Market Shares, Additional Open Market Shares or any New Securities or Replacement Pre-emptive Shares (each as defined in connection with (i) any action taken by them at the request Shareholders Agreement), including, for the avoidance of Buyer pursuant to this Section 8.11 or in connection with the arrangement of the Debt Financing or (ii) any information utilized in connection therewith, and the foregoing obligations shall survive termination of this Agreement and the occurrence of the Closing. In addition, no action, liability or obligation of the Companydoubt, any refinancings or “take-out” financings with respect thereto. The obligations of the Company Subsidiaries or any of their respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to any Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) will be effective until the Closing Date. All material, non-public information regarding the Group Companies provided to Buyer or any of and its Representatives pursuant to this Section 8.11 shall be kept confidential by them in accordance with the Confidentiality Agreement except for disclosure to potential investors as required in connection with the Debt Financing subject to customary confidentiality protections. Notwithstanding anything to the contrary, the Company shall be deemed to have complied with this Section 8.11 for all purposes of this Agreement (including Article 6 and Article 7) unless the Debt Financing has not been obtained primarily as a result of the Company’s Willful Breach of its obligations subsidiaries under this Section 8.11. Notwithstanding anything herein to 3.7 shall automatically terminate upon the contrarydate that the Beneficial Ownership (as defined in the Shareholders Agreement) of the Investors, Xxxxx acknowledges and agrees that obtaining any Debt Financing in the aggregate, of Common Stock is not a condition to the Closingless than five percent (5%).
Appears in 2 contracts
Samples: Framework Agreement (Walgreen Co), Framework Agreement (Amerisourcebergen Corp)
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund (a) In connection with the Financing and any portion of the Purchase Price (the “Debt Alternative Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (x) provide Seller and the Company with written notice that such Debt Financing has been obtained and (y) deliver (or cause to be delivered) to Seller and the Company true, correct and complete copies of all arrangements pursuant to which any Financing Parties shall have committed to provide any portion of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further that, in no event shall the receipt of such Debt Financing be a condition to Closing and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. Prior to the Closing, subject to Section 8.11.2, the Company shall use reasonable best efforts toto provide to Parent, and shall use reasonable best efforts to cause the Company Subsidiaries and its and their respective Representatives to, in each case at BuyerParent’s sole expense, provide to Buyer such all cooperation reasonably requested by Buyer that is reasonably necessary Parent in arranging, obtaining and syndicating connection with the Debt Financing, if Financing or any Alternative Financing (provided that the foregoing shall not require such requested cooperation is consistent with applicable Laws and does not to the extent it would interfere unreasonably interfere with the business or operations of the Group CompaniesCompany or its Subsidiaries), including including:
(i) furnishing Parent and its sources of Financing or Alternative Financing as promptly as reasonably practical, (a) furnishing Buyer practicable with the Required Financial Information financial and other pertinent information regarding the Group Companies Company and its Subsidiaries as may be reasonably requested by Buyer for Parent or the completion sources of the Debt Financing, (b) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies Financing or Alternative Financing in connection with the Debt Financing or Alternative Financing, including financial statements (including the financial statements set forth in clause (ii) below) (which, with respect to annual financial statements, shall have been audited and, with respect to interim financial statements, shall have been reviewed by the independent accountants for the Company as provided in Statement on Auditing Standards No. 100), pro forma financial statements (provided that it is understood that assumptions underlying the pro forma adjustments are to be the responsibility of Parent), and business and other financial data, in each case, of the type and form required by Regulation S-X and Regulation S-K under the Securities Act and of the type and form customarily included in a registration statement on Form S-1 under the Securities Act for a public offering of the debt securities contemplated by the Alternative Financing, assuming that such offering was consummated at the same time during the Company’s fiscal year as the offering of debt securities contemplated by the Alternative Financing (other than consolidating and other financial statements; provided that customary data as to the total assets, revenue, EBITDA and Adjusted EBITDA of non-guarantor subsidiaries shall be provided), all other data that would be necessary for the underwriter of such offering of debt securities contemplated by the Alternative Financing to receive customary “comfort” (including “negative assurance” comfort) from the extent Company’s independent accountants in connection with such offering of the debt securities contemplated by the Alternative Financing, all data that would be necessary to obtain or confirm a corporate rating for the Company’s secured and unsecured Indebtedness on a standalone basis, all data of the type that has historically been required by the Company’s lenders in connection with its secured debt financings and reasonable and customary for financings of such type, (c) reasonably assisting in authorization letters to the preparation of (i) customary bank information memoranda, lender and investor presentations, offering documents, offering or private placement memoranda and other similar marketing documents and due diligence efforts for the Debt Financing and (ii) customary authorization and representation letters, each as required in connection with the Debt Financing, financing sources authorizing the distribution of information to prospective lenders and containing a representation customary information, and such other financial or other data as Parent or its lenders may reasonably request;
(ii) furnishing Parent and its financing sources when filed with the SEC (A) the unaudited consolidated balance sheet of the Company as of the end of any quarterly period ended no less than forty-five (45) calendar days prior to the anticipated Closing Date and the related unaudited statements of income, equity and cash flows and (B) the audited consolidated balance sheet of the Company as of the end of any fiscal year ended not less than ninety (90) days prior to the anticipated Closing Date, and the related audited statements of income, equity and cash flows for the year then ended, and the notes and schedules thereto (the information described in clauses (A) and (B) being referred to as the “Required Information”), provided that the public side of such documents, if any, do not include any information about any Group Company or any securities of any Group Company that would constitute material non-public information within the meaning of the United States federal and state securities laws if any Group Company were a public reporting company, (d) using shall use reasonable best efforts to cause file the Company’s independent registered accounting firm Required Information on a timely basis pursuant to provide customary assistance, including applicable Law;
(iiii) providing customary comfort letters participating in a reasonable number of meetings (including “negative assurance comfort” customary one-on-one meetings with the parties acting as lead arrangers or agents for, and “change period comfort”) in connection prospective lenders and purchasers of, the financing and senior management and Representatives, with any capital markets transaction comprising a part of the Debt Financingappropriate seniority and expertise, (ii) providing customary consents to the inclusion of their audit report in respect of any financial statements of the Company and its Subsidiaries), presentations, road shows, due diligence sessions, drafting sessions and sessions with rating agencies in connection with the Company Subsidiaries in any offering documents relating to the Debt Financing and (iii) reasonable assistance and cooperation to Buyer with respect to any auditor due diligence, (e) subject to and conditioned on the occurrence of the Closing, the taking of customary corporate actions reasonably necessary to permit the consummation of and funding of the Debt or Alternative Financing, (f) reasonably assisting and providing reasonable cooperation in Buyer’s efforts to satisfy the conditions precedent set forth in any definitive document relating to the Debt Financing to the extent satisfaction of such condition requires the cooperation of, or is within the control of, the Group Companies, (g) delivering to Buyer obtaining corporate and facilities ratings at least three (3) Business Days twenty days prior to the anticipated Closing all such documentation and information as is reasonably requested in writing by Buyer at least ten (10) Business Days prior to the Closing Date to the extent required under the Financing or Alternative Financing;
(iv) facilitating the pledging of collateral and the granting and perfection of security interests (including obtaining customary payoff letters, lien releases and instruments of termination or discharge and preparing information and due diligence schedules) as required by U.S. regulatory authorities the Financing or Alternative Financing, including executing and delivering any customary collateral documents and other customary documents and certificates as may be reasonably requested by Parent, providing all documentation or other information required by Governmental Entities with respect to the Financing or Alternative Financing under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act and the requirements of 31 C.F.R. §1010.230, (h) facilitating cooperating and assisting Parent in obtaining customary legal opinions, field exams and appraisals, environmental assessments, surveys, title insurance and other certifications and documents reasonably requested by the sources of Financing or Alternative Financing for financings similar to the Financing or Alternative Financing;
(v) assisting with the preparation of materials for rating agencies and rating agency presentations, bank information memoranda, offering documents (including (x) assistance in the preparation of pro forma financial statements giving effect to the transactions contemplated hereunder; it being understood that assumptions underlying the pro forma adjustments to be made are the responsibility of Parent and delivery (y) requesting consents of accountants for use of their reports in any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents materials relating to the Debt Financing relating to or Alternative Financing and the Group Companiesdelivery of one or more customary representation letters), private placement memoranda and their respective businesses to be included similar documents required in connection with the definitive documents relating to the Debt Financing or Alternative Financing, and assist with ;
(vi) facilitating the execution and delivery at the Closing of definitive Financing or Alternative Financing documents by the same, in each case, solely to the extent reasonable Company and its Subsidiaries and all other customary for financings of such type, (i) cooperating with internal and external counsel of Buyer documents in connection with providing customary back-up therewith, including pledge and security agreements, mortgages, guarantees, filings and certificates and factual information regarding any legal opinion that such counsel may be as reasonably required to deliver in connection with the Debt Financing or Alternative Financing (including a certificate of the Chief Financial Officer of the Company or any of its Subsidiaries with respect to solvency matters and consents of independent accountants for the use of their reports in any materials relating to the Financing or Alternative Financing, ) (provided that any obligations contained in each case, solely such documents shall be effective no earlier than as of the Closing); and
(vii) using reasonable best efforts to cooperate with Parent to satisfy the conditions precedent to the Financing or Alternative Financing to the extent reasonable within the control of the Company and customary causing the taking of corporate actions by the Company and its Subsidiaries reasonably necessary to permit the completion of the Financing or Alternative Financing.
(b) The Company shall provide Parent with an electronic version of the trademarks, service marks and corporate logo of the Company and its Subsidiaries for financings use in marketing materials for the purpose of such typefacilitating the marketing of the Financing or Alternative Financing, and (j) obtaining and providing documents to Buyer (including draft payoff letters) relating to the repayment of the Indebtedness and the release of related guarantees and Liens in accordance with the terms of this Agreement. The Company hereby consents, on behalf of itself and the Group Companies, consents to the use of the logos of the Group Companies foregoing in connection with the Debt Financing or Alternative Financing; provided that such logos are used solely in a manner that is not intended to, nor or is reasonably likely to, to harm or disparage the Company’s Company or any of its Affiliates’ Subsidiaries or their marks or the reputation or goodwillgoodwill of the Company.
8.11.2. Notwithstanding anything in this Agreement to (c) Neither of the contrary, (a) no Group Company nor any of their respective Representatives its Subsidiaries shall be requiredrequired to take any action that would subject it to actual or reasonably anticipated liability, under the provisions of this Section 8.11 to bear any cost or otherwise in connection with the Debt Financing, expense or to pay any commitment or other similar fee or enter into make any binding agreement (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) or commitment payment or incur any other actual or potential liability or obligation provide or agree to provide any indemnity in connection with the Debt Financing or Alternative Financing or any of the foregoing prior to the Closing that is not advanced Date unless reimbursed or indemnified by Buyer, (b) no Group Company or any of their respective Representatives, managers, officers or employees shall be required to execute or enter into, perform or authorize any agreement with respect to the Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) that is not contingent upon the Closing or that would be effective prior to the Closing Date, (c) no Representative, manager, officer or employee of any Group Company shall be required to deliver any certificate or take any other action Parent. Unless this Agreement has been terminated by Parent pursuant to this Section 8.11 to the extent any such action would reasonably be expected to result in personal liability to such Representative8.1(g), manager, officer or employee, (d) no Group Company or their respective Representatives Parent shall be required to take any action that would reasonably be expected, in the reasonable judgment of the Company, to conflict with, or result in any violation or breach of, any applicable Laws, any organizational documents of any Group Company, any contract or obligations of confidentiality (not created in contemplation hereof) binding on any Group Company, (e) no Group Company or any of their respective Representatives shall be required to take any action that would cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement, (f) no Group Company or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, the Company has, in its good faith, determined is not true, (g) no Group Companies or their respective Representatives shall be required to provide, and the Buyer will be solely responsible for the preparation of: (1) pro forma financial information; (2) any description of all or any component of the Debt Financing; or (3) projections, risk factors or other forward-looking statements relating to all or any component of the Debt Financing; and (h) no Group Company shall be required to provide access to or disclose information that the Company determines would jeopardize any attorney–client privilege or other similar privilege of the Company or any of its Subsidiaries. Promptly upon request by the Company, Xxxxx will reimburse the Company for any reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Company, the Company Subsidiaries or any of their Representatives in connection with the cooperation of the Company, the Company Subsidiaries and their Representatives contemplated by this Section 8.11. Except in the case of fraud or a breach of this Agreement, Buyer shall indemnify, defend, indemnify and hold harmless the Group Companies Company and its Subsidiaries and their respective officers, directors, employees and Representatives from and against any and all liabilities, losses, damages, awardsclaims, fines, penaltiescosts, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, expenses (including interest, penaltiesawards, reasonable legal, consulting judgments and other professional fees and expenses and all amounts paid in prosecution, investigation, defense or settlement of any of the foregoing) and other amounts penalties suffered or incurred by them in connection with (i) any action taken by them at the request of Buyer pursuant to this Section 8.11 or in connection with the arrangement of the Debt Financing or Alternative Financing (iiincluding any action taken in accordance with Section 6.21(a) and any information utilized in connection therewith, and the foregoing obligations shall survive termination of this Agreement and the occurrence of the Closing. In addition, no action, liability or obligation of the Company, any of the Company Subsidiaries or any of their respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to any Debt Financing therewith (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) will be effective until the Closing Date. All material, non-public historical information regarding the Group Companies provided to Buyer or any of its Representatives pursuant to this Section 8.11 shall be kept confidential by them in accordance with the Confidentiality Agreement except for disclosure to potential investors as required in connection with the Debt Financing subject to customary confidentiality protections. Notwithstanding anything relating to the contraryCompany or its Subsidiaries)).
(d) For the avoidance of doubt, if the Company shall be deemed to have complied with this Section 8.11 for all purposes of this Agreement (including Article 6 and Article 7) unless Financing becomes unavailable or the Debt Alternative Financing has not been obtained primarily as a result obtained, Parent and Merger Sub shall continue to be obligated to consummate the Merger on the terms contemplated by this Agreement and subject only to the satisfaction or waiver of the Company’s Willful Breach of its obligations under this Section 8.11. Notwithstanding anything herein to the contrary, Xxxxx acknowledges and agrees that obtaining any Debt Financing is not a condition to the Closingconditions set forth in Article VII.
Appears in 2 contracts
Samples: Merger Agreement (GenOn Energy, Inc.), Merger Agreement (NRG Energy, Inc.)
Financing Cooperation. 8.11.1. Buyer may determine, (a) To assist Parent in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (x) provide Seller and the Company with written notice that such Debt Financing has been obtained and (y) deliver (or cause to be delivered) to Seller and the Company true, correct and complete copies of all arrangements pursuant to which any Financing Parties shall have committed to provide any portion of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further that, in no event shall the receipt of such Debt Financing be a condition to Closing and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. Prior to the Closing, subject to Section 8.11.2efforts, the Company shall agrees to use its commercially reasonable best efforts to, and shall use reasonable best efforts to cause the Company Subsidiaries and its and their respective Representatives to, in each case at Buyer’s sole expense, provide to Buyer such cooperation reasonably requested by Buyer that is reasonably necessary in arranging, obtaining and syndicating the Debt Financing, if cooperate with any (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the operations of the Group Companies), including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies Offering as may be reasonably requested by Buyer for Parent or with the completion arrangement of the Debt Financing, (b) participating in telephonic meetings Financing as may be reasonably requested by Parent and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies in connection with the Debt Financing to the extent reasonable is necessary and customary for financings of such type, (c) reasonably assisting in the preparation of (i) customary bank information memoranda, lender and investor presentations, offering documents, offering or private placement memoranda and other similar marketing documents and due diligence efforts for the Debt Financing and (ii) customary authorization and representation letters, each as required type contemplated in connection with the Debt arrangement of the Financing, authorizing including, in each case (subject in each case to Section 6.05(b) below), by (i)(A) preparing and providing to Parent, its Financing Sources and the distribution underwriters in connection with the Offering (an “Underwriter”), as promptly as reasonably practicable after Parent’s written request therefor, customary and reasonably available financial and other information with respect to the Company and each of information to prospective lenders its Subsidiaries and containing a representation that the public side transactions contemplated hereby and by the Financing, including (x) audited consolidated annual financial statements of such documents, if any, do not include the Company and (y) unaudited interim consolidated financial statements of the Company (which shall have been reviewed by the independent accountants for the Company as provided in Statement on Auditing Standards No. 100) and (B) providing as promptly as reasonably practicable after Parent’s written request therefor any information about with respect to the Company and its Subsidiaries reasonably necessary to assist Parent with the preparation of customary pro forma financial statements that meet the requirements of Regulation S-X and all other applicable accounting rules and regulations of the SEC promulgated thereunder and required to be included in a Registration Statement on Form S-3 under the 1933 Act or reasonably and customarily required by the Financing Sources or Underwriters to be included in any Group offering documents; provided, that notwithstanding anything to the contrary in this Section 6.05, nothing will require the Company to provide (or be deemed to require the Company to provide) any (1) pro forma financial statements; (2) description of all or any securities of any Group Company that would constitute material non-public information within the meaning portion of the United States federal Financing, including any “description of notes”, and state securities laws if other information customarily provided by financing sources or their counsel; (3) risk factors relating to all or any Group Company were a public reporting companycomponent of the Financing; (4) “segment” financial information or (5) any Compensation Discussion and Analysis or other information required by Item 402 of Regulation S -K under the 1933 Act or any other information customarily excluded from offering documents for the type of financing contemplated by the Financing, (dii) using commercially reasonable best efforts to cause the Company’s independent registered accounting firm accountants to reasonably cooperate with the Financing Sources or Underwriters in a manner consistent with their customary practice and to participate in customary auditor due diligence calls and provide customary assistance, accountants’ “comfort letters” (including customary “negative assurances”) (i) providing customary it being understood that the comfort letters (including “negative assurance comfort” and “change period comfort”) delivered in connection with any capital markets transaction comprising a part the Company’s public offerings shall be deemed to be customary for purposes of the Debt Financing, (iithis Section 6.05) providing and customary consents to the inclusion of their audit report reports in respect of any connection with the Financing if historical financial statements or other financial information of the Company and the Company Subsidiaries are included in any offering documents relating to for the Debt Financing and Financing, (iii) providing reasonable assistance cooperation with customary syndication or other marketing efforts, or a customary offering, by Parent for all or any portion of the Financing or the Offering, including reasonable access to documents and cooperation other information in connection with customary due diligence investigations and causing its management team, with appropriate seniority and expertise, to Buyer assist in a reasonable number of meetings and presentations (which, in the Company’s discretion, may be in the form of virtual meetings, video calls or conference calls) with respect to any auditor due diligenceFinancing Sources or Underwriters and ratings agencies, in each case, on reasonable advance notice during normal business hours, (eiv) subject to upon reasonable advance notice and conditioned on the occurrence of the Closingduring normal business hours, the taking of providing customary corporate actions and reasonably necessary assistance to permit Parent (including by causing its management team, with appropriate seniority and expertise), to participate in a reasonable number of meetings and presentations (which, in the consummation Company’s discretion, may be in the form of virtual meetings, video calls or conference calls and funding shall be during normal business hours) in the preparation of offering documents for the Debt FinancingFinancing or the Offering, (fv) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth in any definitive document relating to the Debt Financing to the extent satisfaction of such condition requires the cooperation of, or is within the control of, the Group Companies, (g) delivering to Buyer furnishing Parent at least three (3) four Business Days prior to the date of the Closing with all such customary documentation and other information as is reasonably requested in writing by Buyer at least ten (10) Business Days prior to the Closing to the extent required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulationsregulations and under the USA Patriot Act of 2001 reasonably required and reasonably requested in writing by the parties acting as lead arrangers for, including or lenders under, the PATRIOT Act and Financing or the requirements Underwriters to the Company at least ten days prior to the date of 31 C.F.R. §1010.230the Closing, (hvi) facilitating providing reasonable facilitation (through providing and assisting in the preparation and delivery of any credit executing customary agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates documents or other definitive documents relating to the Debt Financing relating to the Group Companies, and their respective businesses to be included in the definitive documents relating to the Debt Financing, and assist with the execution and delivery certificates) of the same, in each case, solely to the extent reasonable pledge and customary for financings perfection of such type, (i) cooperating with internal liens and external counsel of Buyer in connection with providing customary back-up certificates and factual information regarding any legal opinion that such counsel may be required to deliver security interests in connection with the Debt Financing, in each case, solely as may be reasonably requested by Parent (provided that no obligation under any such document or agreement will take effect on or prior to the extent reasonable and customary for financings of such type, Closing) and (jvii) obtaining otherwise providing cooperation that is customary and providing documents to Buyer (including draft payoff letters) relating to the repayment of the Indebtedness and the release of related guarantees and Liens in accordance with the terms of this Agreement. The Company hereby consents, on behalf of itself and the Group Companies, to the use of the logos of the Group Companies reasonable in connection with the Debt Financing; provided marketing efforts of Parent, the Financing Sources and any Underwriters.
(b) Notwithstanding the foregoing, nothing in this Section 6.05 shall require the Company or any of its Subsidiaries to: (i) take any action in respect of the Financing or an Offering to the extent that such logos are used solely action would cause any condition to Closing set forth in Article 9 or any condition set forth in Article 9 to fail to be satisfied by the End Date or the Effective Time, as applicable, or otherwise result in a manner breach of this Agreement by the Company; (ii) take any action in respect of the Financing or an Offering that is not intended to, nor is reasonably likely to, harm would conflict with or disparage violate the Company’s or any if its Subsidiaries’ organizational documents or any Applicable Law, or result in the contravention of, or violation or breach of, or default under, any Contract to which the Company or any of its Affiliates’ reputation Subsidiaries is a party; (iii) take any action to the extent such action would (A) unreasonably interfere with the business or goodwill.
8.11.2. Notwithstanding anything in operations of the Company or its Subsidiaries or (B) cause significant competitive harm to the Company or its Subsidiaries if the transactions contemplated by this Agreement are not consummated; (iv) execute and deliver any letter, Contract, registration statement, document or certificate in connection with the Financing or take any corporate action that is not contingent on, or that would be effective prior to, the occurrence of the Closing, it being agreed that the foregoing shall not apply to the contrary, inclusion of customary acquiree financial and related information in a registration statement or prospectus prior to Closing and cooperation in connection therewith; (av) no Group Company nor pay any commitment fee or other fee or payment to obtain consent or incur any liability with respect to or cause or permit any Lien to be placed on any of their respective Representatives shall be required, under the provisions of this Section 8.11 or otherwise assets in connection with the Debt Financing, to pay any commitment or other similar fee or enter into any binding agreement (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) or commitment or incur any other actual or potential liability or obligation in connection with the Debt Financing prior to the Closing date of the Closing; (vi) provide access to or disclose information where the Company determines that is such access or disclosure would reasonably be expected to jeopardize the attorney-client privilege or contravene any Applicable Law or Contract (but shall use commercially reasonable efforts to grant such access or provide such disclosure in a manner which would not advanced by Buyer, jeopardize such privilege or contravene any such Applicable Law or Contract); (bvii) no Group Company or subject any of their the Company’s or its Subsidiaries’ respective Representativesdirectors, managers, officers or employees shall be required to execute any actual or enter into, perform or authorize any agreement with respect to potential personal liability; (viii) cause the Debt Financing (other than the execution directors and managers of the authorization letters referred Company to in clause (c)(ii) of Section 8.11.1) that adopt resolutions approving the agreements, documents and instruments pursuant to which the Financing is not obtained unless such resolutions are contingent upon the Closing occurrence of, or that would be only effective prior to as of, the Closing Date, Closing; (cix) no Representative, manager, officer waive or employee amend any terms of any Group Company shall be required to deliver any certificate this Agreement or take any other action pursuant Contract to this Section 8.11 to which the extent any such action would reasonably be expected to result in personal liability to such Representative, manager, officer or employee, (d) no Group Company or their respective Representatives shall be required to its Subsidiaries is party; or (x) take any action that would reasonably subject it to actual or potential liability, to bear any cost or expense or to make any other payment or agree to provide any indemnity in connection with any commitment letters or the definitive documents related to the Financing or any information utilized in connection therewith (in each case under this clause (x), except following the Closing). In no event shall the Company be expected, in breach of this Agreement because of the failure to deliver any financial or other information that is not currently readily available to the Company on the date hereof or is not otherwise prepared in the reasonable judgment ordinary course of business of the Company at the time requested by Parent or for the failure to obtain any comfort with respect to, or review of, any financial or other information by its accountants. Whether or not the Closing occurs, Parent shall indemnify and hold harmless the Company, to conflict witheach Subsidiary thereof, or result in any violation or breach of, any applicable Laws, any organizational documents of any Group Company, any contract or obligations of confidentiality (not created in contemplation hereof) binding on any Group Company, (e) no Group Company or any and each of their respective Representatives shall be required to take any action that would cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement, (f) no Group Company or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, the Company has, in its good faith, determined is not true, (g) no Group Companies or their respective Representatives shall be required to provide, and the Buyer will be solely responsible for the preparation of: (1) pro forma financial information; (2) any description of all or any component of the Debt Financing; or (3) projections, risk factors or other forward-looking statements relating to all or any component of the Debt Financing; and (h) no Group Company shall be required to provide access to or disclose information that the Company determines would jeopardize any attorney–client privilege or other similar privilege of the Company or any of its Subsidiaries. Promptly upon request by the Company, Xxxxx will reimburse the Company for any reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Company, the Company Subsidiaries or any of their Representatives in connection with the cooperation of the Company, the Company Subsidiaries and their Representatives contemplated by this Section 8.11. Except in the case of fraud or a breach of this Agreement, Buyer shall indemnify, defend, and hold harmless the Group Companies and their respective Representatives Affiliates from and against any and all losses, damages, awards, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecution, investigation, defense liabilities or settlement of any of the foregoing) and other amounts losses suffered or incurred by them in connection with (i) the arrangement of the Financing or any action taken by them at the request of Buyer Offering, any cooperation provided pursuant to this Section 8.11 or in connection with the arrangement of the Debt Financing or (ii) 6.05, and any information utilized in connection therewith. Additionally, and the foregoing obligations shall survive termination of if this Agreement and the occurrence of the Closing. In addition, no action, liability or obligation of the Company, any of is terminated by the Company Subsidiaries pursuant to Section 10.01(d), Parent shall, promptly upon written request by the Company or any of their respective Representatives pursuant to any certificateSubsidiary thereof, agreementreimburse such party for all reasonable and documented out-of-pocket costs, arrangement, document or instrument relating to any Debt Financing fees and expenses (other than the execution of the authorization letters referred to in clause (c)(iiincluding reasonable attorneys’ fees and expenses) of Section 8.11.1) will be effective until the Closing Date. All material, non-public information regarding the Group Companies provided to Buyer or any of its Representatives pursuant to this Section 8.11 shall be kept confidential incurred by them in accordance with the Confidentiality Agreement except for disclosure to potential investors as required such Persons in connection with any such Person complying with the Debt Financing subject to customary confidentiality protectionsobligations under this Section 6.05. Notwithstanding anything to the contrary, upon any breach by the Company or its Subsidiaries of their obligations under this Section 6.05, neither the Company nor its Subsidiaries shall be deemed to have complied with this Section 8.11 for all purposes of breached their respective obligations under this Agreement (including Article 6 and Article 7for purposes of the termination right set forth in Section 10.01(c)) or the condition described in Section 9.02(b) unless (i) such breach is a Knowing and Intentional Breach and for this purpose each obligation in this Section 6.05 that is not qualified by a commercially reasonable efforts qualification will be deemed to be so qualified, (ii) Parent provides written notice of such alleged breach and the Debt Company fails to promptly use commercially reasonable efforts to cure any such alleged breach that is a breach and (iii) the failure to obtain the Financing has not been obtained primarily as or to complete the Offering is a result of such breach; provided that nothing in this sentence will preclude Parent from seeking specific performance in respect thereof in accordance with Section 11.14. Parent and Merger Sub expressly acknowledge and agree that none of the Company’s Willful Breach of its obligations under this Section 8.11. Notwithstanding anything herein to the contrary, Xxxxx acknowledges and agrees that obtaining any Debt Financing following is not a condition to either Parent’s or Merger Sub’s obligation to consummate the ClosingMerger: Parent or Merger Sub obtaining Financing, or Parent or Merger Sub or any Affiliate of Parent completing an Offering.
Appears in 2 contracts
Samples: Merger Agreement (ProFrac Holding Corp.), Merger Agreement (FTS International, Inc.)
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (x1) provide Seller and the Company with written notice that such Debt Financing has been obtained and (y) deliver (or cause to be delivered) to Seller and the Company true, correct and complete copies of all arrangements pursuant to which any Financing Parties shall have committed to provide any portion of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further that, in no event shall the receipt of such Debt Financing be a condition to Closing and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. Prior to the Closing, the Vendor shall (and shall cause the Corporation to), at the sole cost and expense of the Purchaser (subject to Section 8.11.27.2(2) below), the Company shall use their commercially reasonable best efforts to, and shall use reasonable best efforts to cause the Company Subsidiaries applicable officers, Employees and its advisors, including legal and their respective Representatives toaccounting, of the Corporation, to cooperate with the Purchaser as necessary in each case at Buyer’s sole expense, provide to Buyer such cooperation connection with the arrangement of any financing as may be customary and reasonably requested by Buyer that is reasonably necessary in arranging, obtaining and syndicating the Debt Financing, if any Purchaser (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the ongoing operations of the Group CompaniesCorporation), including as promptly as reasonably practical, using their commercially reasonable efforts to:
(a) furnishing Buyer with participate at reasonable times in a reasonable number of meetings, presentations and due diligence sessions; (b) assist the Required Financial Information Purchaser and any financing sources in the preparation of bank information memoranda, private placement memoranda and similar documents for any portion of financing; (c) take all corporate actions reasonably requested by the Purchaser to permit the consummation of a financing and to permit the proceeds thereof to be made available to the Purchaser at Closing; (d) execute and deliver any customary credit agreements and pledge and security documents and otherwise reasonably facilitate the granting of a security interest (and perfection thereof) in collateral, guarantees, mortgages, other pertinent information regarding the Group Companies definitive financing documents or other certificates, customary closing certificates (including a solvency certificate) and documents as may be reasonably requested by Buyer the Purchaser (provided that no obligation of the Corporation under any agreement or financing document contemplated in this Section 7.2(1) shall be effective until Closing); (e) obtain customary authorization letters with respect to the bank information memoranda and consents of accountants to the use of their reports in any materials relating to a financing; and (f) cooperate reasonably with the due diligence of financing sources, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of the Corporation; provided, however, that the Vendor and the Corporation shall not be obligated to provide or be responsible for any post-Closing or pro forma statements, information, or adjustments desired to be incorporated into any information used in connection with procurement of the financing unless already required to be provided by the Vendor for the completion of Prospectus.
(2) The Purchaser shall promptly reimburse the Debt FinancingVendor for all reasonable and documented out-of-pocket costs incurred by the Corporation or the Vendor in connection with such cooperation (it being understood and agreed, (b) participating in telephonic meetings and otherwise reasonably assisting with however, that the preparation of appropriate and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies Purchaser shall not be responsible for any amounts that would have been incurred in connection with the Debt Financing transactions contemplated hereby regardless of efforts to the extent reasonable and customary for financings of such typeobtain financing, (c) reasonably assisting in the preparation of (i) customary bank information memoranda, lender and investor presentations, offering documents, offering or private placement memoranda and other similar marketing documents and due diligence efforts for the Debt Financing and (ii) customary authorization and representation letters, each as required in connection with the Debt Financing, authorizing the distribution of information to prospective lenders and containing a representation that the public side of such documents, if any, do not include any information about any Group Company or any securities of any Group Company that would constitute material non-public information within the meaning otherwise incurred independently of the United States federal and state securities laws if any Group Company were a public reporting company, (d) using reasonable best efforts to cause the Company’s independent registered accounting firm to provide customary assistance, including (i) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) in connection with any capital markets transaction comprising a part of the Debt Financing, (ii) providing customary consents to the inclusion of their audit report in respect of any financial statements of the Company and the Company Subsidiaries in any offering documents relating to the Debt Financing and (iii) reasonable assistance and cooperation to Buyer with respect to any auditor due diligence, (e) subject to and conditioned on the occurrence of the Closing, the taking of customary corporate actions reasonably necessary to permit the consummation of and funding of the Debt Financing, (f) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth in any definitive document relating to the Debt Financing to the extent satisfaction of such condition requires the cooperation of, or is within the control of, the Group Companies, (g) delivering to Buyer at least three transactions contemplated hereby).
(3) Business Days prior to In the Closing all such documentation and information as is reasonably requested event that the minimum cash requirement in writing by Buyer at least ten (10section 7.03(E) Business Days prior to the Closing to the extent required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act and the requirements of 31 C.F.R. §1010.230, (h) facilitating and assisting in the preparation and delivery of any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents relating to the Debt Financing relating to the Group Companies, and their respective businesses to be included in the definitive documents relating to the Debt Financing, and assist with the execution and delivery of the same, in each case, solely to the extent reasonable and customary for financings of such type, (i) cooperating with internal and external counsel of Buyer 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 Debt Financing, in each case, solely to the extent reasonable and customary for financings of such type, and (j) obtaining and providing documents to Buyer (including draft payoff letters) relating to the repayment of the Indebtedness and the release of related guarantees and Liens in accordance with the terms of this Agreement. The Company hereby consents, on behalf of itself and the Group Companies, to the use of the logos of the Group Companies in connection with the Debt Financing; provided that such logos are used solely in a manner that Signing Date Sagicor Arrangement Agreement is not intended to, nor is reasonably likely to, harm or disparage the Company’s or any met due to excessive redemptions of its Affiliates’ reputation or goodwill.
8.11.2. Notwithstanding anything in this Agreement to the contraryAlignvest Class A Shares, (a) no Group Company nor any of their respective Representatives Alignvest shall be required, under the provisions of this Section 8.11 use reasonable commercial efforts to seek to obtain additional debt or otherwise in connection with the Debt Financing, to pay any commitment equity or other similar fee financing sufficient to restore Alignvest’s cash level to meet such minimum cash requirement, or enter into any binding agreement (make other than appropriate arrangements to seek to complete the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) or commitment or incur any other actual or potential liability or obligation in connection with the Debt Financing prior to the Closing that is not advanced by BuyerSagicor Acquisition Closing, and (b) no Group Company or any of their respective Representatives, managers, officers or employees Sagicor shall be required use reasonable commercial efforts to execute or enter into, perform or authorize any agreement cooperate with respect Alignvest’s efforts to the Debt Financing (other than the execution of the authorization letters referred seek to in clause (c)(ii) of Section 8.11.1) that is not contingent upon the Closing or that would be effective prior to the Closing Date, (c) no Representative, manager, officer or employee of any Group Company shall be required to deliver any certificate or take any other action pursuant to this Section 8.11 to the extent any obtain such action would reasonably be expected to result in personal liability to such Representative, manager, officer or employee, (d) no Group Company or their respective Representatives shall be required to take any action that would reasonably be expected, in the reasonable judgment of the Company, to conflict with, or result in any violation or breach of, any applicable Laws, any organizational documents of any Group Company, any contract or obligations of confidentiality (not created in contemplation hereof) binding on any Group Company, (e) no Group Company or any of their respective Representatives shall be required to take any action that would cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement, (f) no Group Company or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, the Company has, in its good faith, determined is not true, (g) no Group Companies or their respective Representatives shall be required to provide, and the Buyer will be solely responsible for the preparation of: (1) pro forma financial information; (2) any description of all or any component of the Debt Financing; or (3) projections, risk factors or other forward-looking statements relating to all or any component of the Debt Financing; and (h) no Group Company shall be required to provide access to or disclose information that the Company determines would jeopardize any attorney–client privilege or other similar privilege of the Company or any of its Subsidiaries. Promptly upon request by the Company, Xxxxx will reimburse the Company for any reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Company, the Company Subsidiaries or any of their Representatives in connection with the cooperation of the Company, the Company Subsidiaries and their Representatives contemplated by this Section 8.11. Except in the case of fraud or a breach of this Agreement, Buyer shall indemnify, defend, and hold harmless the Group Companies and their respective Representatives from and against any and all losses, damages, awards, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecution, investigation, defense or settlement of any of the foregoing) and other amounts suffered or incurred by them in connection with (i) any action taken by them at the request of Buyer pursuant to this Section 8.11 or in connection with the arrangement of the Debt Financing or (ii) any information utilized in connection therewith, and the foregoing obligations shall survive termination of this Agreement and the occurrence of the Closing. In addition, no action, liability or obligation of the Company, any of the Company Subsidiaries or any of their respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to any Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) will be effective until the Closing Date. All material, non-public information regarding the Group Companies provided to Buyer or any of its Representatives pursuant to this Section 8.11 shall be kept confidential by them in accordance with the Confidentiality Agreement except for disclosure to potential investors as required in connection with the Debt Financing subject to customary confidentiality protections. Notwithstanding anything to the contrary, the Company shall be deemed to have complied with this Section 8.11 for all purposes of this Agreement (including Article 6 and Article 7) unless the Debt Financing has not been obtained primarily as a result of the Company’s Willful Breach of its obligations under this Section 8.11. Notwithstanding anything herein to the contrary, Xxxxx acknowledges and agrees that obtaining any Debt Financing is not a condition to the Closingfinancing.
Appears in 2 contracts
Financing Cooperation. 8.11.1. Buyer may determinePrior to the Closing, in each Seller shall use its sole discretioncommercially reasonable efforts to, and shall use its commercially reasonable efforts to obtain debt financing to fund any portion of cause the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (x) provide Seller Company Group and its and the Company with written notice that such Debt Financing has been obtained Group’s representatives to, cooperate as reasonably requested by Buyer (including by providing reasonable access (subject to execution of non-disclosure and (y) deliver (or cause confidentiality agreements reasonably acceptable to be deliveredParent) to Seller and the Company true, correct and complete copies of all arrangements pursuant to which any Financing Parties shall have committed to provide any portion of the Debt Financing; provided that any fee letters Buyer’s prospective financing sources as may be redacted reasonably necessary to evaluate the Business) in a customary manner; provided further thatconnection with any equity, debt or other financing sought by Buyer or its Affiliates in no event shall the receipt of such Debt Financing be a condition to Closing and Buyer confirms that it will have at Closing sufficient cash to consummate connection with the transactions contemplated by this Agreement (the “Financing”) (it being acknowledged and to perform its obligations hereunder. Prior agreed by Buyer that, notwithstanding anything to the Closing, subject to Section 8.11.2contrary in this Agreement, the Company shall use reasonable best efforts to, and shall use reasonable best efforts receipt of such Financing is not a condition to cause the Company Subsidiaries and its and their respective Representatives to, in each case at Buyer’s sole expense, provide to Buyer such cooperation reasonably requested by Buyer that is reasonably necessary in arranging, obtaining and syndicating the Debt Financing, if consummation of any (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the operations of the Group Companiestransactions contemplated by this Agreement), including as promptly as reasonably practical(i) upon reasonable prior notice, participating in a reasonable number of meetings, presentations and due diligence sessions, (aii) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies as may be reasonably requested by Buyer for the completion of the Debt Financing, (b) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies in connection with the Debt Financing to the extent reasonable and customary for financings of such typesyndication documents, (c) reasonably assisting in the preparation of (i) customary bank information memoranda, lender and investor presentations, offering documents, offering or private placement memoranda and other similar marketing documents and due diligence efforts for the Debt Financing and (ii) customary authorization and representation letters, each as required in connection with the Debt Financing, authorizing the distribution of information to prospective lenders and containing a representation that the public side of such documents, if any, do not include any information about any Group Company or any securities of any Group Company that would constitute material non-public information within the meaning of the United States federal and state securities laws if any Group Company were a public reporting company, (diii) using commercially reasonable best efforts to cause the Company’s its independent registered accounting firm accountants to provide customary assistance, including (i) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) in connection with any capital markets transaction comprising a part of the Debt Financing, (ii) providing customary consents to the inclusion of their audit report in respect of any financial statements of the Company and the Company Subsidiaries in any offering documents relating to the Debt Financing and (iii) reasonable assistance and cooperation to Buyer (subject to execution of non-reliance, non-disclosure and confidentiality agreements reasonably acceptable to such independent accountants), (iv) cooperating in connection with the repayment, discharge or defeasance of any existing Indebtedness of the Business and the Company Group prior to or at the Closing, including by obtaining customary payoff, discharge or defeasance or similar letters and other instruments of termination and discharge reasonably requested by Buyer, (v) executing and delivering any definitive financing documents to the extent reasonably requested by Buyer, provided, however, that no such documents or agreements shall be effective prior to the Closing, (vi) assisting Buyer in obtaining corporate and facilities ratings for the Financing and (vii) furnishing Buyer and any lenders involved with the Financing with all documentation and other information required by any Governmental Authority with respect to any auditor due diligence, (e) subject to and conditioned on the occurrence of the Closing, the taking of customary corporate actions reasonably necessary to permit the consummation of and funding of the Debt Financing, (f) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth in any definitive document relating to the Debt Financing to the extent satisfaction of such condition requires the cooperation of, or is within the control of, the Group Companies, (g) delivering to Buyer at least three (3) Business Days prior to the Closing all such documentation and information as is reasonably requested in writing by Buyer at least ten (10) Business Days prior to the Closing to the extent required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act and Act. Notwithstanding the requirements foregoing: (A) such requested cooperation shall not unreasonably interfere with the ongoing operations of 31 C.F.R. §1010.230the Business as currently conducted by the Company Group, (hB) facilitating and assisting in the preparation and delivery of any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents relating to the Debt Financing relating to the Company Group Companies, and their respective businesses to be included in the definitive documents relating to the Debt Financing, and assist with the execution and delivery of the same, in each case, solely to the extent reasonable and customary for financings of such type, (i) cooperating with internal and external counsel of Buyer in connection with providing customary back-up certificates and factual information regarding any legal opinion that such counsel may shall not be required to deliver in connection with the Debt Financing, in each case, solely to the extent reasonable and customary for financings of such type, and (j1) obtaining and providing documents to Buyer (including draft payoff letters) relating to the repayment of the Indebtedness and the release of related guarantees and Liens in accordance with the terms of this Agreement. The Company hereby consents, on behalf of itself and the Group Companies, to the use of the logos of the Group Companies in connection with the Debt Financing; provided that such logos are used solely in a manner that is not intended to, nor is reasonably likely to, harm or disparage the Company’s or any of its Affiliates’ reputation or goodwill.
8.11.2. Notwithstanding anything in this Agreement to the contrary, (a) no Group Company nor any of their respective Representatives shall be required, under the provisions of this Section 8.11 or otherwise in connection with the Debt Financing, to pay any commitment or other similar fee or enter into any binding agreement (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) or commitment or incur any other actual or potential liability or obligation in connection with the Debt Financing prior to the Closing that or (2) incur any other Liability in connection with the Financing prior to the Closing, in each case, for which the Company Group is not advanced entitled to reimbursement and indemnification by BuyerBuyer pursuant to the last sentence of this Section 5.11, (bC) no Group Company or personal liability shall be imposed on any of their respective Representativesthe officers, managers, officers or employees and representatives of the Company Group in connection with the Financing and (D) the Company Group shall not be required to execute enter into or approve any Financing or any definitive agreement or enter intointo any instrument, perform document or authorize any agreement with respect to certificate for the Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) that is not contingent upon the Closing or that would be effective prior to the Closing Date, Closing. Buyer shall (cI) no Representative, manager, officer or employee of any Group Company shall be required to deliver any certificate or take any other action pursuant to this Section 8.11 to the extent any such action would reasonably be expected to result in personal liability to such Representative, manager, officer or employee, (d) no Group Company or their respective Representatives shall be required to take any action that would reasonably be expected, in the reasonable judgment of the Company, to conflict with, or result in any violation or breach of, any applicable Laws, any organizational documents of any Group Company, any contract or obligations of confidentiality (not created in contemplation hereof) binding on any Group Company, (e) no Group Company or any of their respective Representatives shall be required to take any action that would cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement, (f) no Group Company or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, the Company has, in its good faith, determined is not true, (g) no Group Companies or their respective Representatives shall be required to provide, and the Buyer will be solely responsible for the preparation of: (1) pro forma financial information; (2) any description of all or any component of the Debt Financing; or (3) projections, risk factors or other forward-looking statements relating to all or any component of the Debt Financing; and (h) no Group Company shall be required to provide access to or disclose information that the Company determines would jeopardize any attorney–client privilege or other similar privilege of the Company or any of its Subsidiaries. Promptly promptly upon request by the CompanySellers, Xxxxx will reimburse the Company Sellers for any all reasonable costs and documented out-of-pocket fees and expenses of the Sellers and their respective Affiliates (including reasonable attorneys’ fees) incurred by including, prior to the CompanyClosing, the Company Subsidiaries or any Group) and all reasonable and documented fees and expenses of their Representatives outside representatives incurred in connection with the cooperation of the Companysuch requested cooperation, the Company Subsidiaries and their Representatives contemplated by this Section 8.11. Except in the case of fraud or a breach of this Agreement, Buyer shall indemnify, defend, (II) indemnify and hold harmless the Group Companies Sellers and their respective Representatives from Affiliates (including, prior to the Closing, the Company Group), and their respective officers, employees and representatives, against any and all lossesclaim, damagesLoss, awardsdamage, finesinterest, penaltiesinjury, expenses, fees, costs, actions, demandsLiability, judgment, Taxesaward, finespenalty, feesfine, expenses Tax, cost (including interestcost of investigation), penalties, expense (including reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecution, investigation, defense of outside representatives) or settlement payment incurred as a result of any of the foregoing) such cooperation and other amounts suffered or incurred by them in connection with (i) any action taken by them at the request of Buyer pursuant to this Section 8.11 or in connection with the arrangement of the Debt Financing or (ii) any information utilized in connection therewiththerewith (including any claim by or with respect to any such lenders, prospective lenders, agents and arrangers and ratings agencies), it being understood that no such fees, expenses, claims, Losses, damages, interest, injuries, Liabilities, judgments, awards, penalties, fines, Taxes, costs (including costs of investigation) or settlement payments incurred by the foregoing obligations shall survive termination of this Agreement and the occurrence of Sellers or their Affiliates (including, prior to the Closing. In addition, no action, liability or obligation of the Company, any of the Company Subsidiaries or any of their respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to any Debt Financing (other than the execution of the authorization letters referred to in clause (c)(iiGroup) of Section 8.11.1) will be effective until the Closing Date. All material, non-public information regarding the Group Companies provided to Buyer or any of its Representatives pursuant to this Section 8.11 5.11 shall be kept confidential by them in accordance with the Confidentiality Agreement except constitute Transaction Expenses for disclosure to potential investors as required in connection with the Debt Financing subject to customary confidentiality protections. Notwithstanding anything to the contrary, the Company shall be deemed to have complied with this Section 8.11 for all purposes of this Agreement (including Article 6 and Article 7) unless the Debt Financing has not been obtained primarily as a result of the Company’s Willful Breach of its obligations under this Section 8.11. Notwithstanding anything herein to the contrary, Xxxxx acknowledges and agrees that obtaining any Debt Financing is not a condition to the Closingpurpose hereunder.
Appears in 2 contracts
Samples: Stock Purchase Agreement, Stock Purchase Agreement (Mosaic Co)
Financing Cooperation. 8.11.1. Buyer may determineThe Parties agree to provide, and each Party will cause its respective Subsidiaries and its and its Subsidiaries' respective officers, employees and advisers to provide, all cooperation reasonably necessary in its sole discretion, to obtain debt financing to fund any portion connection with the arrangement of the Purchase Price financing described in the Commitment Letters (including any capital markets financing contemplated by the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (xEngagement Letter) provide Seller and the Company with written notice that such Debt Financing has been obtained and (y) deliver (or cause to be delivered) to Seller and the Company true, correct and complete copies in respect of all arrangements pursuant to which any Financing Parties shall have committed to provide any portion of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further that, in no event shall the receipt of such Debt Financing be a condition to Closing and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and the Separation Agreement and any other financing, all to perform its obligations hereunder. Prior to be consummated contemporaneously with or at or after the ClosingEffective Time in respect of the transactions contemplated by this Agreement or the Separation Agreement, subject to Section 8.11.2including participation in meetings, due diligence sessions, road shows, the Company shall use reasonable best efforts topreparation of offering memoranda, private placement memoranda, prospectuses and shall use reasonable best efforts to cause similar documents, the Company Subsidiaries execution and its delivery of any commitment letters, credit agreements, underwriting or placement agreements, pledge and their respective Representatives tosecurity documents, in each case at Buyer’s sole expenseother definitive financing documents, provide to Buyer such cooperation reasonably or other requested by Buyer that is reasonably necessary in arranging, obtaining and syndicating the Debt Financing, if any (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the operations of the Group Companies)certificates or documents, including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information comfort letters of accountants and other pertinent information regarding the Group Companies legal opinions as may be reasonably requested by Buyer for any other Party, and taking such other actions as are reasonably required to be taken by the completion Parties and each Party's respective Subsidiaries in the Commitment Letters; provided, however, that neither Party shall have any obligation at any time to continue to attempt to arrange or otherwise pursue the capital markets financing contemplated by the Engagement Letter if at such time such capital markets financing is not available on commercially reasonable terms in accordance with Section 7.2(f) of the Debt FinancingSpinco Disclosure Letter; provided, (bfurther, that neither Party shall have any obligation to attempt to arrange or otherwise pursue any capital markets financing contemplated by the Engagement Letter in an original principal amount in excess of $300,000,000. Notwithstanding the timing reflected in the preceding sentence, the Parties agree to use commercially reasonable efforts to investigate the feasibility of accelerating the borrowing of the capital markets financing contemplated by the Engagement Letter so that the condition to Heinz's and Spinco's obligation to consummate the Merger set forth in Section 8.2(h)(ii) participating in telephonic meetings and otherwise reasonably assisting shall be satisfied as promptly as practicable. The Parties will keep one another informed of the status of their efforts to arrange the financing contemplated by the Commitment Letters, including making reports with respect to significant developments. In the preparation of appropriate and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies in connection with the Debt Financing to the extent reasonable and customary for financings event any portion of such type, (c) reasonably assisting financing becomes unavailable in the preparation manner or from the sources originally contemplated at the times contemplated in the first sentence of (ithis Section 7.2(f), Section 7.2(f) customary bank information memoranda, lender and investor presentations, offering documents, offering or private placement memoranda and other similar marketing documents and due diligence efforts for the Debt Financing and (ii) customary authorization and representation letters, each as required in connection with the Debt Financing, authorizing the distribution of information to prospective lenders and containing a representation that the public side of such documents, if any, do not include any information about any Group Company or any securities of any Group Company that would constitute material non-public information within the meaning of the United States federal Spinco Disclosure Letter and state securities laws if any Group Company were a public reporting companythis sentence, (d) using the Parties will use their reasonable best efforts to arrange replacement financing, if necessary, on terms and conditions that would cause the Company’s independent registered accounting firm conditions set forth in Sections 8.1(h), 8.2(h) and 8.3(e) to provide customary assistancebe satisfied, including it being understood that (i) providing the Parties shall have a reasonable and customary comfort letters (including “negative assurance comfort” and “change period comfort”) in connection with any time to endeavor to arrange the capital markets transaction comprising a part financing described in the Engagement Letter following receipt of the Debt Financing, Section 355 Ruling (or waiver by Heinz of the condition set forth in Section 8.2(f)) and that (ii) providing customary consents to in the inclusion of their audit report event that such capital markets financing is not available on commercially reasonable terms in respect of any financial statements accordance with Section 7.2(f) of the Company and Spinco Disclosure Letter, the Company Subsidiaries in any offering documents relating to the Debt Financing and (iii) reasonable assistance and cooperation to Buyer with respect to any auditor due diligence, (e) subject to and conditioned on the occurrence issuance of the Closingsenior secured notes contemplated by the Second Commitment Letter on terms and conditions not materially more burdensome to Heinz, Spinco, Del Monte or the taking of customary corporate actions reasonably necessary to permit the consummation of and funding of the Debt Financing, (f) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent Surviving Corporation than those set forth in any definitive document relating to the Debt Financing to the extent satisfaction of such condition requires the cooperation of, or is within the control of, the Group Companies, (g) delivering to Buyer at least three (3) Business Days prior to the Closing all such documentation and information as is reasonably requested in writing by Buyer at least ten (10) Business Days prior to the Closing to the extent required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act and the requirements of 31 C.F.R. §1010.230, (h) facilitating and assisting in the preparation and delivery of any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents relating to the Debt Financing relating to the Group Companies, and their respective businesses to be included in the definitive documents relating to the Debt Financing, and assist with the execution and delivery of the same, in each case, solely to the extent reasonable and customary for financings of such type, (i) cooperating with internal and external counsel of Buyer 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 Debt Financing, in each case, solely to the extent reasonable and customary for financings of such type, and (j) obtaining and providing documents to Buyer (including draft payoff letters) relating to the repayment of the Indebtedness and the release of related guarantees and Liens in accordance with the terms of this Agreement. The Company hereby consents, on behalf of itself and the Group Companies, to the use of the logos of the Group Companies in connection with the Debt Financing; provided that such logos are used solely in a manner that is not intended to, nor is reasonably likely to, harm or disparage the Company’s or any of its Affiliates’ reputation or goodwill.
8.11.2. Notwithstanding anything in this Agreement to the contrary, (a) no Group Company nor any of their respective Representatives shall be required, under the provisions of this Section 8.11 or otherwise in connection with the Debt Financing, to pay any commitment or other similar fee or enter into any binding agreement (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) or commitment or incur any other actual or potential liability or obligation in connection with the Debt Financing prior to the Closing that is not advanced by Buyer, (b) no Group Company or any of their respective Representatives, managers, officers or employees shall be required to execute or enter into, perform or authorize any agreement with respect to the Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) that is not contingent upon the Closing or that would be effective prior to the Closing Date, (c) no Representative, manager, officer or employee of any Group Company shall be required to deliver any certificate or take any other action pursuant to this Section 8.11 to the extent any such action would reasonably be expected to result in personal liability to such Representative, manager, officer or employee, (d) no Group Company or their respective Representatives shall be required to take any action that would reasonably be expected, in the reasonable judgment of the Company, to conflict with, or result in any violation or breach of, any applicable Laws, any organizational documents of any Group Company, any contract or obligations of confidentiality (not created in contemplation hereof) binding on any Group Company, (e) no Group Company or any of their respective Representatives shall be required to take any action that would cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement, (f) no Group Company or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, the Company has, in its good faith, determined is not true, (g) no Group Companies or their respective Representatives shall be required to provide, and the Buyer will be solely responsible for the preparation of: (1) pro forma financial information; (2) any description of all or any component of the Debt Financing; or (3) projections, risk factors or other forward-looking statements relating to all or any component of the Debt Financing; and (h) no Group Company shall be required to provide access to or disclose information that the Company determines would jeopardize any attorney–client privilege or other similar privilege of the Company or any of its Subsidiaries. Promptly upon request by the Company, Xxxxx will reimburse the Company for any reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Company, the Company Subsidiaries or any of their Representatives in connection with the cooperation of the Company, the Company Subsidiaries and their Representatives contemplated by this Section 8.11. Except in the case of fraud or a breach of this Agreement, Buyer shall indemnify, defend, and hold harmless the Group Companies and their respective Representatives from and against any and all losses, damages, awards, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecution, investigation, defense or settlement of any of the foregoing) and other amounts suffered or incurred by them in connection with (i) any action taken by them at the request of Buyer pursuant to this Section 8.11 or in connection with the arrangement of the Debt Financing or (ii) any information utilized in connection therewith, and the foregoing obligations shall survive termination of this Agreement and the occurrence of the Closing. In addition, no action, liability or obligation of the Company, any of the Company Subsidiaries or any of their respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to any Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) will be effective until the Closing Date. All material, non-public information regarding the Group Companies provided to Buyer or any of its Representatives pursuant to this Section 8.11 shall be kept confidential by them in accordance with the Confidentiality Agreement except for disclosure to potential investors as required in connection with the Debt Financing subject to customary confidentiality protections. Notwithstanding anything to the contrary, the Company Second Commitment Letter shall be deemed to have complied with this satisfy the condition set forth in Section 8.11 for all purposes of this Agreement (including Article 6 and Article 7) unless the Debt Financing has not been obtained primarily as a result of the Company’s Willful Breach of its obligations under this Section 8.11. Notwithstanding anything herein to the contrary, Xxxxx acknowledges and agrees that obtaining any Debt Financing is not a condition to the Closing8.2(h)(ii).
Appears in 2 contracts
Samples: Merger Agreement (Del Monte Foods Co), Merger Agreement (Heinz H J Co)
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (x) provide Seller and the Company with written notice that such Debt Financing has been obtained and (y) deliver (or cause to be delivered) to Seller and the Company true, correct and complete copies of all arrangements pursuant to which any Financing Parties shall have committed to provide any portion of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further that, in no event shall the receipt of such Debt Financing be a condition to Closing and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. Prior to and until the Closing, subject to Section 8.11.2, the Company shall use reasonable best efforts to, and shall use reasonable best efforts to cause the Company Subsidiaries its Subsidiaries, Affiliates, respective officers and its directors, employees and their respective Representatives agents to, in each case at BuyerParent’s sole cost and expense, provide to Buyer such customary cooperation that is reasonably requested by Buyer that Parent or Merger Sub to assist Parent and Merger Sub in connection with causing the conditions to the Financing to be satisfied or as is otherwise reasonably necessary requested by Parent or Merger Sub in arranging, obtaining connection with Parent’s efforts to obtain the Financing and syndicating is customarily required for debt financings similar to the Debt Financing, if any which cooperation may include: (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the operations of the Group Companies)i) furnishing, including as promptly as reasonably practicalor causing to be furnished to, (a) furnishing Buyer with Parent, Merger Sub and/or its Debt Financing Sources the Required Financial Information (it being understood that the Company shall have no responsibility for preparing any pro forma financial statements) and all other customary pertinent financial, business and other pertinent information regarding the Group Companies Company and its Subsidiaries as may be reasonably requested by Buyer for the completion Parent, (ii) causing members of senior management of the Debt FinancingCompany to participate in a reasonable number of lender meetings, (b) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary lender presentations, due diligence sessions (including accounting due diligence sessions) ), road shows, drafting sessions and sessions with rating agencies agency meetings, in connection with the Debt Financing to the extent each case, upon reasonable advance notice, at mutually agreed locations and customary for financings of such typetimes (including by electronic means), (ciii) reasonably assisting providing reasonable assistance to Parent in the its preparation of (i) customary bank information memorandarating agency presentations, lender and investor presentations, offering documentsmemoranda, offering or private placement customary bank information memoranda and other similar marketing documents and due diligence efforts for the Debt Financing and (ii) customary authorization and representation letters, each as reasonably required in connection with the Debt Financing, authorizing Financing (including by reasonably assisting in the distribution of information to prospective lenders and containing a representation that the public side preparation of such documents, if any, materials that do not include any information about any Group Company or any securities of any Group Company that would constitute material non-public information), in each case, solely with respect to information within relating to the meaning of Company (to the United States federal extent related to its business) and state securities laws if any Group Company were a public reporting companyits Subsidiaries, (div) using reasonable best efforts delivering information and documentation related to cause the Company’s independent registered accounting firm to provide customary assistance, including (i) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) in connection with any capital markets transaction comprising a part of the Debt Financing, (ii) providing customary consents to the inclusion of their audit report in respect of any financial statements of the Company and its Subsidiaries that is required by the Company Subsidiaries in Debt Commitment Letter (or any offering documents relating to successor provision thereof) and reasonably requested by Parent or the Debt Financing and (iii) reasonable assistance and cooperation to Buyer with respect to any auditor due diligence, (e) subject to and conditioned on the occurrence of the Closing, the taking of customary corporate actions reasonably necessary to permit the consummation of and funding of the Debt Financing, (f) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth in any definitive document relating to the Debt Financing to the extent satisfaction of such condition requires the cooperation of, or is within the control of, the Group Companies, (g) delivering to Buyer at least three (3) Business Days prior to the Closing all such documentation and information as is reasonably requested in writing by Buyer Sources at least ten (10) Business Days prior to the Closing Date with respect to the extent required by U.S. regulatory authorities compliance under applicable “know your customer” ”, beneficial ownership and anti-money laundering rules and regulations, including the USA PATRIOT Act Act, which information shall be provided no later than two (2) Business Days prior to the Closing Date, (v) cooperating with the Financing Sources’ due diligence, to the extent reasonably requested in connection with the Financing, (vi) to the extent required by the Financing Sources, executing and delivering customary authorization letters to the Financing Sources, to the extent such customary authorization letters (or the bank information memoranda in which such letters are included) include language that exculpates the Company, each of its Subsidiaries and their respective Representatives and Affiliates from any liability in connection with the unauthorized use by the recipients thereof of the information set forth in any such bank confidential information memoranda or similar memoranda or report distributed in connection therewith, (vii) providing reasonable and customary assistance with Parent’s preparation, negotiation and execution of definitive financing documentation and the requirements of 31 C.F.R. §1010.230, schedules and exhibits thereto (h) facilitating and assisting in the preparation and delivery of any credit agreements, including indentures, notes, underwriting loan agreements, purchase agreements, security documentation, guarantees, schedulescollateral agreements, perfection hedging arrangements, payoff letters and release agreements, customary officer’s certificates and corporate resolutions or other definitive documents relating corporate actions, as applicable) as may reasonably be requested by Parent or Merger Sub and subject to the Debt Financing relating to occurrence of the Group CompaniesClosing, (viii) provide reasonable and their respective businesses to be included customary assistance with facilitating the pledging of collateral (including possessory collateral) in the definitive documents relating to connection with the Debt Financing, including executing and assist with delivering any customary pledge and security documents or other customary definitive security documents, (ix) taking all reasonable actions necessary to permit the execution Debt Financing Sources to evaluate the Company’s and delivery its Subsidiaries’ current assets, cash management and accounting systems, policies, and procedures relating thereto for the purposes of establishing collateral arrangements as of the sameClosing, and (x) using reasonable best efforts to supplement the Required Information on a reasonably current basis to the extent that any Required Information, to the Knowledge of the Company, when taken as a whole and in light of the circumstances under which such statements were made, contains any material misstatement of fact or omits to state any material fact necessary to make such information not materially misleading; provided, that the requested cooperation shall not (A) require the Company or any of its Subsidiaries or their respective Representatives to (i) execute, deliver, enter into, approve or perform any agreement, commitment, certificate, document or instrument (excluding any customary authorization letters described in clause (vi) above), or modification of any agreement, commitment, document or instrument, in each case, solely that would be effective prior to the extent reasonable and customary for financings of such typeEffective Time, (iii) cooperating with internal and external counsel deliver or cause the delivery of Buyer in connection with providing customary back-up certificates and factual information regarding any legal opinion that such counsel may be required opinions, (iii) deliver or cause the delivery of any reliance letters or any certificate as to deliver solvency or any other certificate in connection with the Debt Financing, in each case that would be effective prior to the Effective Time, (iv) adopt any resolutions, execute any consents or otherwise take any corporate or similar action or deliver any certificate, in connection with the Debt Financing or the incurrence of indebtedness thereby, in each case, solely that would be effective prior to the Effective Time, (v) pay any commitment or other similar fee, incur or reimburse any costs or expenses or incur any other liability or obligation of any kind or give any indemnities in connection with the Debt Financing, including under any certificate, agreement, arrangement, document or instrument related thereto, in each case, that would be effective prior to the Effective Time or (vi) prepare stand-alone financial statements for any Subsidiaries of the Company or prepare financial statements which the Company has not historically prepared, (B) require the Company or any of its Subsidiaries to take any action that will conflict with or violate its organizational documents or any Laws or result in a material breach of, or default under, any Company Material Contract (other than any Company Material Contract being entered in contemplation hereof) or otherwise breach any of the Company’s representations, warranties, covenants or agreements under this Agreement, (C) require the Company or any of its Subsidiaries to enter into or approve any binding commitment prior to the Effective Time, or (D) unreasonably interfere with the ongoing operations of the Company and its Subsidiaries. In the event this Agreement is terminated pursuant to Section 7.1, Parent shall promptly (and in any event within three (3) Business Days of delivery of documentation evidencing such cost and expenses) reimburse the Company for any out-of-pocket reasonable and documented expenses and costs (including reasonable outside attorneys’ fees and disbursements) incurred in connection with the Company’s or its Affiliates’ or Representatives’ obligations under Section 5.10 or this Section 5.11 and shall indemnify and hold harmless the Company, its Affiliates and their respective representatives from and against any and all losses, damages, claims, costs (including cost of investigation), settlement payments, injuries, liabilities, judgements, awards, penalties, fines or expenses (including reasonable outside attorneys’ fees and disbursements) suffered or incurred by any of them as a result of, or in connection with, (1) such cooperation or any other actions taken by any of them at the request of Parent or Merger Sub pursuant to this Section 5.11, (2) the Financing, and (3) any information used in connection with the Financing (except with respect to written information provided by the Company or any of its Affiliates specifically for inclusion in offering materials relating to the Financing), except, to the extent such losses, damages, claims, costs (including cost of investigation), settlement payments, injuries, liabilities, judgements, awards, penalties, fines or expenses (including reasonable outside attorneys’ fees and customary disbursements) arose from the fraud, bad faith, or willful misconduct of the Company, its Subsidiaries, or any of their respective Affiliates or representatives. The reimbursement and indemnification obligations of Parent set forth in this Section 5.11 are referred to, collectively, as the “Reimbursement Obligations”, which shall in no event exceed the Cap. Any offering materials, presentations, bank information memoranda and other documents prepared by or on behalf of or utilized by Xxxxxx, Merger Sub or their Affiliates, or Parent’s or Merger Sub’s Debt Financing Sources Related Parties, in connection with Parent’s financing activities in connection with the transactions contemplated hereby, which include any information provided by the Company or any of its Affiliates or Representatives, including any offering memorandum, banker’s book, prospectus or similar document used, or any other written offering materials used, in connection with any Debt Financing, shall include a conspicuous disclaimer to the effect that none of the Company or any of its Subsidiaries or their respective Affiliates or any of their or their Affiliates’ respective Representatives nor any employees thereof have any responsibility for financings the content of such typedocument and disclaim all responsibility therefor (other than, in all cases, those responsibilities arising from, directly or indirectly, the fraud, bad faith, or willful misconduct of the Company, its Subsidiaries, or any of their respective Affiliates or Representatives) and (j) obtaining and providing documents to Buyer (including draft payoff letters) relating shall further include a disclaimer with respect to the repayment Company and its Subsidiaries and their respective Affiliates and their and their Affiliates’ respective Representatives in any oral disclosure with respect to such financing, in each case, including any liability in connection with the unauthorized use by the recipients thereof of the Indebtedness and the release of related guarantees and Liens information set forth in accordance with the terms of this Agreementsuch document or oral disclosure. The Company hereby consents, on behalf of itself and the Group Companies, consents to the use of the its and its Subsidiaries’ logos of the Group Companies in connection with the Debt Financing; provided that such logos are used solely in the ordinary course as is customary for such purpose and in a manner that is not intended tointended, nor is or reasonably likely tolikely, harm or to harm, disparage the Company’s or any of its Affiliates’ reputation or goodwill.
8.11.2. Notwithstanding anything in this Agreement to the contrary, (a) no Group Company nor any of their respective Representatives shall be required, under the provisions of this Section 8.11 or otherwise in connection with the Debt Financing, to pay any commitment or other similar fee or enter into any binding agreement (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) or commitment or incur any other actual or potential liability or obligation in connection with the Debt Financing prior to the Closing that is not advanced by Buyer, (b) no Group Company or any of their respective Representatives, managers, officers or employees shall be required to execute or enter into, perform or authorize any agreement with respect to the Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) that is not contingent upon the Closing or that would be effective prior to the Closing Date, (c) no Representative, manager, officer or employee of any Group Company shall be required to deliver any certificate or take any other action pursuant to this Section 8.11 to the extent any such action would reasonably be expected to result in personal liability to such Representative, manager, officer or employee, (d) no Group Company or their respective Representatives shall be required to take any action that would reasonably be expected, in the reasonable judgment of the Company, to conflict with, or result in any violation or breach of, any applicable Laws, any organizational documents of any Group Company, any contract or obligations of confidentiality (not created in contemplation hereof) binding on any Group Company, (e) no Group Company or any of their respective Representatives shall be required to take any action that would cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement, (f) no Group Company or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, the Company has, in its good faith, determined is not true, (g) no Group Companies or their respective Representatives shall be required to provide, and the Buyer will be solely responsible for the preparation of: (1) pro forma financial information; (2) any description of all or any component of the Debt Financing; or (3) projections, risk factors or other forward-looking statements relating to all or any component of the Debt Financing; and (h) no Group Company shall be required to provide access to or disclose information that the Company determines would jeopardize any attorney–client privilege or other similar privilege of the Company or any of its Subsidiaries. Promptly upon request by the Company, Xxxxx will reimburse the Company for any reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Company, the Company Subsidiaries or any of their Representatives in connection with the cooperation of the Company, the Company Subsidiaries and their Representatives contemplated by this Section 8.11. Except in the case of fraud or a breach of this Agreement, Buyer shall indemnify, defend, and hold harmless the Group Companies and their respective Representatives from and against any and all losses, damages, awards, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecution, investigation, defense or settlement of any of the foregoing) and other amounts suffered or incurred by them in connection with (i) any action taken by them at the request of Buyer pursuant to this Section 8.11 or in connection with the arrangement of the Debt Financing or (ii) any information utilized in connection therewith, and the foregoing obligations shall survive termination of this Agreement and the occurrence of the Closing. In addition, no action, liability or obligation of adversely affect the Company, any of the Company its Subsidiaries or any of their respective Representatives pursuant to any certificate, agreement, arrangement, document reputation or instrument relating to any Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) will be effective until the Closing Date. All material, non-public information regarding the Group Companies provided to Buyer or any of its Representatives pursuant to this Section 8.11 shall be kept confidential by them in accordance with the Confidentiality Agreement except for disclosure to potential investors as required in connection with the Debt Financing subject to customary confidentiality protections. Notwithstanding anything to the contrary, the Company shall be deemed to have complied with this Section 8.11 for all purposes of this Agreement (including Article 6 and Article 7) unless the Debt Financing has not been obtained primarily as a result of the Company’s Willful Breach of its obligations under this Section 8.11goodwill. Notwithstanding anything herein to the contrary, Xxxxx acknowledges (i) the condition set forth in Section 6.2(b), as it applies in respect of the Company’s obligations under this Section 5.11, shall be deemed satisfied unless the Company has knowingly and agrees that obtaining any willfully breached its obligations under this Section 5.11 and which such breach directly resulted in Parent not being able to obtain the Debt Financing is and (ii) in no event shall the Company be deemed to have breached its obligations hereunder in the event Parent does not a condition to the Closingprepare any pro forma financial information.
Appears in 2 contracts
Samples: Merger Agreement (SP Plus Corp), Merger Agreement (SP Plus Corp)
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer a) The Company shall, promptly after such Debt Financing is obtained (x) provide Seller and the Company with written notice that such Debt Financing has been obtained and (y) deliver (or cause to be delivered) to Seller and the Company true, correct and complete copies of all arrangements pursuant to which any Financing Parties shall have committed to provide any portion of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further that, in no event shall the receipt of such Debt Financing be a condition to Closing and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. Prior to the Closing, subject to Section 8.11.2, the Company shall use reasonable best efforts to, and shall cause its Subsidiaries to (and shall use its reasonable best efforts to cause the Company Subsidiaries and its and their respective Representatives to), in each case at Buyer’s sole expense, use its and their respective reasonable best efforts to provide to Buyer such all cooperation as may be reasonably requested by Buyer that is reasonably necessary Parent in arranging, obtaining and syndicating any third party Indebtedness for borrowed money to be raised by Parent or its Subsidiaries or raising any equity financing by Parent, in each case for the purpose of financing the aggregate Merger Consideration and any other amounts required to be paid in connection with the consummation of the transactions contemplated hereby and all related fees and expenses of Parent and Merger Sub (any such debt financing, the “Debt Financing” and any such equity financing, the “Equity Financing” and, together with the Debt Financing, if any the “Financing”). Without limiting the generality of the foregoing, the Company shall, and shall cause its Subsidiaries to (provided that such requested cooperation is consistent and shall use its reasonable best efforts to cause its and their respective Representatives to), use its and their respective reasonable best efforts to (i) upon reasonable advance notice and during normal business hours, make senior management, external auditors and advisors of the Company and its Subsidiaries available to participate in a reasonable number of meetings, presentations, road shows, drafting sessions and due diligence sessions with applicable Laws proposed lenders, lead arrangers, initial purchasers, placement agents and/or other agents, lenders or investors for the Financing, and does not unreasonably interfere in sessions with rating agencies, (ii) provide reasonable assistance with the operations preparation of customary materials (to the Group Companies)extent relating to the Company or its Subsidiaries) for lender and investor presentations, rating agency presentations, confidential information memoranda, offering memoranda, prospectuses and similar documents customary or reasonably required in connection with the Financing, including as promptly as reasonably practicalthe marketing and syndication thereof, (a) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies in each case as may be reasonably requested by Buyer Parent, (iii) on an ongoing basis, and in any event prior to the Effective Time, furnish Parent and its Financing Sources with (A) audited consolidated balance sheets and related audited consolidated statements of income, comprehensive income, stockholders’ equity and cash flows of the Company for each of the three (or two in respect of audited consolidated balance sheets) most recently ended fiscal years that have ended at least 60 days prior to the Effective Time (and the audit reports for such financial statements shall not be subject to any “going concern” qualifications); (B) unaudited consolidated balance sheets and related unaudited consolidated statements of income, comprehensive income, stockholders’ equity and cash flows of the Company for each subsequent interim quarterly period that has ended at least 40 days prior to the Effective Time, in the case of each of clauses (A) and (B), prepared in accordance with GAAP (except, in the case of the unaudited statements, subject to normal year-end audit adjustments and the absence of footnote disclosure); and (C) such other customary financial statements, schedules or other financial data or information reasonably requested by Parent regarding the Company and its Subsidiaries of the type required to permit the Company’s independent accountants to issue customary “comfort letters” to Parent’s Financing Sources which are underwriters or initial purchasers of securities constituting a portion of the Financing, including as to customary negative assurances and change period in order to consummate any transaction comprising a part of the Financing, (iv) promptly furnish Parent and its Financing Sources with such other financial, due diligence and other information relating to the Company and its Subsidiaries as reasonably requested by the Parent or its Financing Sources from time to time or which is customary and reasonably necessary for the completion of the Debt FinancingFinancing (other than pro forma financial information, (b) participating in telephonic meetings but including such information as is necessary for Parent and its Representatives to prepare pro forma financial information and projections of Parent of the nature deemed necessary by Parent’s Financing Sources or otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies required by applicable Law in connection with the Debt Financing to the extent reasonable and customary for financings of such typeFinancing), (c) reasonably assisting in the preparation of (i) customary bank information memoranda, lender and investor presentations, offering documents, offering or private placement memoranda and other similar marketing documents and due diligence efforts for the Debt Financing and (ii) customary authorization and representation letters, each as required in connection with the Debt Financing, authorizing the distribution of information to prospective lenders and containing a representation that the public side of such documents, if any, do not include any information about any Group Company or any securities of any Group Company that would constitute material non-public information within the meaning of the United States federal and state securities laws if any Group Company were a public reporting company, (dv) using reasonable best efforts to cause the Company’s independent registered accounting firm accountants to provide reasonable assistance to Parent consistent with their customary assistance, including (i) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) in connection with any capital markets transaction comprising a part of the Debt Financingpractice, (iivi) providing customary consents furnish to the inclusion of their audit report in respect of any financial statements of the Company and the Company Subsidiaries in any offering documents relating to the Debt such Financing and (iii) reasonable assistance and cooperation to Buyer with respect to any auditor due diligence, (e) subject to and conditioned on the occurrence of the Closing, the taking of customary corporate actions reasonably necessary to permit the consummation of and funding of the Debt Financing, (f) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth in any definitive document relating to the Debt Financing to the extent satisfaction of such condition requires the cooperation of, or is within the control of, the Group Companies, (g) delivering to Buyer Sources at least three (3) Business Days prior to the Closing all such documentation information regarding the Company and information as its Subsidiaries that is reasonably requested required in writing connection with, and in accordance with the terms of, the Financing by Buyer at least ten (10) Business Days prior to the Closing to the extent required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act Patriot Act, to the extent requested by any Financing Source in writing at least 10 Business Days prior to Closing and (vii) provide customary authorization letters authorizing the requirements distribution of 31 C.F.R. §1010.230information to prospective lenders, (h) facilitating subject to customary terms and assisting in conditions, and containing a customary representation to the preparation and delivery Financing Sources which are arranging or providing the portion of any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents relating to the Debt Financing relating constituting syndicated credit facilities that such information does not contain a material misstatement or omission and containing a customary representation to such Financing Sources that the public side versions of such documents, if any, do not include material non-public information about the Company and its Subsidiaries or its or their securities.
(b) The provisions of Section 6.12(a) or any other provision of this Agreement to the Group Companiescontrary notwithstanding, and their respective businesses to be included in the definitive documents relating to the Debt Financing, and assist with the execution and delivery (i) none of the sameCompany, its Subsidiaries or its Representatives shall be required to (x) waive or amend any terms of this Agreement or agree to pay or pay any fees, reimburse any expenses, provide any security or otherwise incur any liability or give any indemnities, in each case, solely to the extent reasonable and customary for financings of such type, (i) cooperating with internal and external counsel of Buyer 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 Debt Financing, in each case, solely prior to the extent reasonable and customary for financings Effective Time, (y) take or permit the taking of such type, and (j) obtaining and providing documents to Buyer (including draft payoff letters) relating to the repayment of the Indebtedness and the release of related guarantees and Liens in accordance with the terms of this Agreement. The Company hereby consents, on behalf of itself and the Group Companies, to the use of the logos of the Group Companies any action in connection with the Debt Financing; provided that such logos are used solely Financing that, in a manner that is not intended to, nor is reasonably likely to, harm or disparage the good faith determination of the Company’s or any of its Affiliates’ reputation or goodwill.
8.11.2. Notwithstanding anything in this Agreement to the contrary, (a) no Group Company nor any of their respective Representatives shall be required, under the provisions of this Section 8.11 or otherwise in connection with the Debt Financing, to pay any commitment or other similar fee or enter into any binding agreement (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) or commitment or incur any other actual or potential liability or obligation in connection with the Debt Financing prior to the Closing that is not advanced by Buyer, (b) no Group Company or any of their respective Representatives, managers, officers or employees shall be required to execute or enter into, perform or authorize any agreement with respect to the Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) that is not contingent upon the Closing or that would be effective prior to the Closing Date, (c) no Representative, manager, officer or employee of any Group Company shall be required to deliver any certificate or take any other action pursuant to this Section 8.11 to the extent any such action would reasonably be expected to result in personal liability to such Representative, manager, officer or employee, (d) no Group Company or their respective Representatives shall be required to take any action that would reasonably be expected, in the reasonable judgment of the Company, to conflict with, or result in any violation or breach of, or default (with or without lapse of time, or both) under, the Company Organizational Documents or Company Subsidiary Organizational Documents or any applicable Laws, any organizational documents or (z) pass resolutions or consents in connection with, or approve or authorize the execution of, the Financing or the definitive financing agreements in respect thereof, in each case that would be effective prior to the Effective Time (provided that this clause (z) shall not prohibit the adoption or execution of any Group Companyresolutions, consents, approvals or authorizations effective no earlier than the Effective Time by any contract persons that are officers or obligations directors of confidentiality (not created in contemplation hereof) binding on any Group Company, (e) no Group Merger Sub and will become officers or directors of the Company or any of their respective Representatives its Subsidiaries as of the Effective Time), and (ii) any requested cooperation pursuant to Section 6.12(a) shall not (x) unreasonably interfere (in the good faith determination of the Company) with the ongoing operations of the Company and its Subsidiaries, (y) require the Company’s cooperation to the extent it would cause any representation or warranty in Article IV of this Agreement to be required to take any action that would breached or cause any condition to the Closing set forth herein to not fail to be satisfied or otherwise cause any breach of this Agreement, (f) no Group Company or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, the Company has, in its good faith, determined is not true, (g) no Group Companies or their respective Representatives shall be required to provide, and the Buyer will be solely responsible for the preparation of: (1) pro forma financial information; (2) any description of all or any component of the Debt Financing; Agreement or (3z) projectionscause any director, risk factors officer or other forward-looking statements relating to all or any component of the Debt Financing; and (h) no Group Company shall be required to provide access to or disclose information that the Company determines would jeopardize any attorney–client privilege or other similar privilege employee of the Company or any of its Subsidiaries. Promptly upon request by the Company, Xxxxx will reimburse the Company for any reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Company, the Company Subsidiaries or any of their Representatives in connection with the cooperation of the Company, the Company Subsidiaries and their Representatives contemplated by this Section 8.11. Except in the case of fraud or a breach of this Agreement, Buyer shall indemnify, defend, and hold harmless the Group Companies and their respective Representatives from and against any and all losses, damages, awards, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecution, investigation, defense or settlement of any of the foregoing) and other amounts suffered or incurred by them in connection with (i) to take any action taken by them at the request of Buyer pursuant that would reasonably be expected to this Section 8.11 result in any personal liability to such director, officer or in connection with the arrangement of the Debt Financing or (ii) any information utilized in connection therewith, and the foregoing obligations shall survive termination of this Agreement and the occurrence of the Closingemployee. In addition, no No action, liability or obligation of the Company, any of the Company its Subsidiaries or any of their respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to any Debt Financing (other than customary authorization and representation letters) relating to the execution Financing will be required to be effective prior to the Effective Time.
(c) Parent shall promptly, upon written request by the Company, reimburse (or cause to be reimbursed) the Company and its Subsidiaries for all reasonable and documented out-of-pocket costs and expenses (but, for the sake of clarity, excluding the costs of the authorization letters referred to in clause (c)(iiCompany’s preparation of its annual and quarterly financial statements) of Section 8.11.1) will be effective until incurred by the Closing Date. All material, non-public information regarding the Group Companies provided to Buyer Company or any of its Subsidiaries or their respective Representatives pursuant to this Section 8.11 shall be kept confidential by them in accordance with the Confidentiality Agreement except for disclosure to potential investors as required in connection with the Debt Financing subject to customary confidentiality protections. Notwithstanding anything to Financing, including the contrary, cooperation of the Company and its Subsidiaries and Representatives contemplated by Section 6.12(a), and shall be deemed to have complied indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all losses, damages, claims, interest, awards, judgments, penalties, costs or expenses suffered or incurred by any of them in connection with this Section 8.11 for all purposes of this Agreement (including Article 6 and Article 7) unless the Debt Financing has not been obtained primarily as a result arrangement of the Company’s Financing and any information used in connection therewith, except with respect to (i) any information provided in writing by the Company or any of its Subsidiaries to Parent or any Financing Source for use in connection with the Financing or (ii) any fraud or Willful Breach by any such persons, as determined by a final, non-appealable judgment by a court of its obligations under this Section 8.11. Notwithstanding anything herein to the contrary, Xxxxx acknowledges and agrees that obtaining any Debt Financing is not a condition to the Closingcompetent jurisdiction.
Appears in 2 contracts
Samples: Merger Agreement, Merger Agreement (WHITEWAVE FOODS Co)
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (xa) provide Seller and the Company with written notice that such Debt Financing has been obtained and (y) deliver (or cause to be delivered) to Seller and the Company true, correct and complete copies of all arrangements pursuant to which any Financing Parties shall have committed to provide any portion of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further that, in no event shall the receipt of such Debt Financing be a condition to Closing and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. Prior to the Closing, subject to Section 8.11.2Acceptance Time, the Company shall use reasonable best efforts toshall, and shall use reasonable best efforts to cause the Company Subsidiaries its officers, employees, consultants and its advisors, including legal and their respective Representatives accounting advisors, to, in each case at Buyer’s sole expense, provide to Buyer Parent such cooperation reasonably requested by Buyer that is reasonably necessary in arranging, obtaining and syndicating the Debt Financing, if any (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the operations of the Group Companies), including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies as may be reasonably requested by Buyer for the completion of Parent in connection with obtaining the Debt Financing, including, (bi) participating making senior management and advisors of the Company available to participate in telephonic meetings and otherwise reasonably assisting with the preparation a reasonable number of appropriate and customary materials customary meetings, presentations, and due diligence sessions (including accounting due diligence sessions) with proposed lenders or placement agents, and in sessions with rating agencies agencies, in each case at such times as coordinated reasonably in advance thereof, (ii) assisting Parent with Parent’s preparation of pro forma financial information and pro forma financial statements and other materials for rating agency presentations, bank information memoranda, financial projections and similar documents used in connection with the Debt Financing and providing customary estimates and other forward-looking financial information regarding the future performance of the business of the Company to the extent reasonable and customary for financings of such type, (c) reasonably assisting in the preparation of (i) customary bank information memoranda, lender and investor presentations, offering documents, offering or private placement memoranda and other similar marketing documents and due diligence efforts for requested by the Debt Financing sources, and (ii) providing customary authorization and representation lettersletters in connection therewith, (iii) 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 collateral (provided that, in each case, to the extent provided in clause (iii) of the first sentence of Section 6.14(b), such documents shall be subject to the Closing and shall only be effective at or after the Effective Time), (iv) requesting and cooperating in obtaining customary lien terminations and instruments of discharge (the effectiveness of which shall be subject to the Closing and the occurrence of the Effective Time), relating to any indebtedness of the Company (it being understood and agreed that the Company’s obligations to provide payoff letters in respect of the Existing Loan Agreement are as required set forth in Section 6.14(c) below), (v) providing reasonable access 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, (vi) assisting with due diligence activities relating to the Company’s financial and other information during normal business hours upon reasonable advance notice, (vii) furnishing to Parent and its Debt Financing sources all pertinent and customary financial and other information regarding the Company reasonably requested by Parent as promptly as practicable following such request (it being agreed that the fiscal year 2013 audited financial statements described in the immediately following clause (1) shall be furnished as soon as they become available and in any event no later than 75 days after December 31, 2013), including (1) the Company’s fiscal year 2013, 2012 and 2011 audited financial statements and (2) the Company unaudited consolidated balance sheets and related statements of income and cash flows for each fiscal quarter ended after the close of its fiscal year 2013 and at least 40 days prior to the Closing Date (viii) taking all actions reasonably requested to (A) permit the prospective lenders and placement agents involved in the Debt Financing to evaluate the Company’s assets, business, 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 Debt Financing, authorizing foregoing after the distribution of information to prospective lenders and containing a representation that the public side of such documents, if any, do not include any information about any Group Company or any securities of any Group Company that would constitute material non-public information within the meaning of the United States federal and state securities laws if any Group Company were a public reporting companyAcceptance Time, (d) using reasonable best efforts to cause the Company’s independent registered accounting firm to provide customary assistance, including (iix) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) in connection with any capital markets transaction comprising a part of the Debt Financing, (ii) providing customary consents to the inclusion of their audit report in respect of any financial statements of the Company and the Company Subsidiaries in any offering documents relating to the Debt Financing and (iii) reasonable assistance and cooperation to Buyer with respect to any auditor due diligence, (e) subject to and conditioned on the occurrence of the Closing, the taking of customary corporate actions reasonably necessary to permit the consummation of and funding of the Debt Financing, (f) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth in any definitive document relating to the Debt Financing to the extent satisfaction of such condition requires the cooperation of, or is within the control of, the Group Companies, (g) delivering to Buyer at least three four (34) Business Days prior to the Closing Acceptance Time all such documentation and other information as is reasonably requested in writing by Buyer at least ten (10) Business Days prior to about the Closing to the extent Company required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, regulations including the PATRIOT USA Patriot Act and the requirements of 31 C.F.R. §1010.230, (h) facilitating and assisting in the preparation and delivery of any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents relating to the Debt Financing relating extent requested at least eight (8) calendar days prior to the Group Companiesanticipated Acceptance Time and (x) subject to the occurrence of the Acceptance Time, and their respective businesses taking all corporate actions necessary to be included in the definitive documents relating to permit consummation of the Debt Financing; provided, that nothing herein shall require (1) such cooperation to the extent it would interfere materially and assist unreasonably with the execution and business or operations of the Company, (2) delivery of (A) any other financial information in a form not customarily prepared by the sameCompany 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, unless, except in the case of clauses (A) and (C), such information is earlier reasonably available to the Company and reasonably requested by Parent, or (3) the taking of any action that would conflict with or violate (x) the Company’ Certificate of Incorporation or Bylaws, in each case, solely to case that are not contingent upon the extent reasonable and customary for financings of such type, (i) cooperating with internal and external counsel of Buyer 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 Debt Financing, in each case, solely to the extent reasonable and customary for financings of such type, and (j) obtaining and providing documents to Buyer (including draft payoff letters) relating to the repayment earlier of the Indebtedness Acceptance Time and the release of related guarantees and Liens in accordance with the terms of this AgreementEffective Time or (y) any applicable Laws. The Company hereby consents, on behalf of itself and the Group Companies, consents to the use of the its logos of the Group Companies in connection with the Debt Financing; provided that such logos are used solely in a manner that is not intended to, nor is to or reasonably likely to, to harm or disparage the Company’s Company or the reputation or goodwill of the Company or any of its Affiliates’ reputation or goodwilllogos and on such other customary terms and conditions as the Company shall reasonably impose, and Parent and its representatives shall cease all such use on the date of termination of this Agreement in the event that this Agreement is terminated in accordance with Section 8.01.
8.11.2. Notwithstanding anything (b) Nothing in this Agreement Section 6.14 shall require the Company to the contrary, (ai) no Group Company nor bear any of their respective Representatives shall be required, under the provisions of out-of-pocket cost or expense that is not reimbursed pursuant to this Section 8.11 6.14(b) or otherwise pay any fee in connection with the Debt Financing, to pay any commitment or other similar fee or enter into any binding agreement (other than the execution of the authorization letters referred to in clause (c)(iiii) of Section 8.11.1) or commitment or incur any other actual liability (or potential liability cause their respective directors, officers or obligation in connection with employees to incur any liability) under the Debt Financing prior to the Closing that is not advanced by Buyer, Effective Time or (biii) no Group Company enter into any definitive agreement or any of their respective Representatives, managers, officers or employees shall be required to execute or enter into, perform or authorize any agreement with respect to the Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) that is not contingent upon the Closing or commitment that would be effective prior to the Closing DateEffective Time (other than such management representation letters and authorization letters with respect to information memoranda, (c) no Representative, manager, officer authorizing the distribution of information to prospective lenders and placement agents and containing customary representations that such information does not contain a material misstatement or employee of any Group Company shall be required to deliver any certificate or take any other action pursuant to this Section 8.11 to the extent any such action would reasonably be expected to result in personal liability to such Representative, manager, officer or employee, (d) no Group Company or their respective Representatives shall be required to take any action that would reasonably be expected, in the reasonable judgment of the Company, to conflict with, or result in any violation or breach of, any applicable Laws, any organizational documents of any Group Company, any contract or obligations of confidentiality (not created in contemplation hereof) binding on any Group Company, (e) no Group Company or any of their respective Representatives shall be required to take any action that would cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement, (f) no Group Company or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, the Company has, in its good faith, determined is not true, (g) no Group Companies or their respective Representatives shall be required to provideomission, and the Buyer will be solely responsible for the preparation of: (1) pro forma financial information; (2) any description of all or any component of the Debt Financing; or (3) projections, risk factors or other forward-looking statements relating to all or any component of the Debt Financing; and (h) no Group Company shall be required to provide access to or disclose information that the Company determines would jeopardize any attorney–client privilege or other similar privilege public-side versions of such documents, if any, do not include material non-public information with respect to the Company or any its securities for purposes of its Subsidiariesfederal securities laws). Promptly Furthermore, Parent shall, promptly upon request by the Company, Xxxxx will reimburse the Company for any all reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred by the Company, the Company Subsidiaries or any of their Representatives and its representatives in connection with the cooperation of the Company, the Company Subsidiaries and their Representatives contemplated by respective obligations pursuant to this Section 8.116.14. Except in the case of fraud or a breach of this Agreement, Buyer Parent shall indemnify, defend, indemnify and hold harmless the Group Companies Company, its Affiliates and their respective Representatives its representatives (collectively, the “Financing Indemnitees”) from and against any and all losses, damages, awardsclaims, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, costs or expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecution, investigation, defense or settlement of any of the foregoing) and other amounts suffered or incurred by them in connection with (i) any action taken by them at the request of Buyer pursuant to this Section 8.11 or in connection with the arrangement of the Debt Financing or (ii) any information utilized in connection therewith, and the foregoing obligations shall survive termination of this Agreement and the occurrence of the Closing. In addition, no action, liability or obligation of the Company, any of the Company Subsidiaries or any of their respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to any Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) will be effective until the Closing Date. All material, non-public information regarding the Group Companies provided to Buyer or any of its Representatives pursuant to this Section 8.11 shall be kept confidential by them in accordance with the Confidentiality Agreement except for disclosure to potential investors as required in connection with the Debt Financing and any information utilized in connection therewith (other than any information provided in writing specifically for use by or on behalf of the Company), 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 a Financing Indemnitee (the obligations in this sentence, the “Financing Cooperation Indemnity”). The obligations of Parent in the foregoing sentence shall survive the consummation of the Merger and any termination of this Agreement. After the Effective Time, the Financing Cooperation Indemnity only may be amended or waived in respect of any Financing Indemnitee with the consent of such Financing Indemnitee.
(c) The Company shall use reasonable best efforts to deliver to Parent and Merger Sub at least three (3) Business Days’ prior to the Acceptance Time, but in no event later than two (2) Business Days before the Acceptance Time, a payoff letter with respect to the Second Amended and Restated Loan and Security Agreement dated December 22, 2011 by and among the Company and Oxford Finance LLC, Silicon Valley Bank and General Electric Capital Corporation (as amended, supplemented, or otherwise modified from time to time, the “Existing Loan Agreement”), which payoff letter shall substantially provide (subject to customary confidentiality protections. Notwithstanding anything exceptions) (x) that upon receipt of the payoff amount set forth in the payoff letter at or prior to the contraryEffective Time, the respective indebtedness incurred thereunder and related instruments shall be terminated and (y) that all Liens (and guarantees), if any, in connection therewith relating to the assets, rights and properties of the Company securing such Indebtedness, shall be, upon the payment of the amount set forth in the payoff letter at or prior to the Effective Time (and, if applicable, providing for letters of credit or cash collateral) be released and terminated. At or prior to the Effective Time (but subject to the Effective Time occurring), the Company shall be deemed to have complied with this Section 8.11 for pay off all purposes of this amounts outstanding (including related fees and expenses) under the Existing Loan Agreement (including Article 6 and Article 7) unless the Debt Financing has not been obtained primarily as a result of the Company’s Willful Breach of its obligations under this Section 8.11. Notwithstanding anything herein up to the contrary, Xxxxx acknowledges and agrees that obtaining any Debt Financing is not a condition extent of cash available to the ClosingCompany at such time).
Appears in 2 contracts
Samples: Merger Agreement (Mallinckrodt PLC), Merger Agreement (Cadence Pharmaceuticals Inc)
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (x) provide Seller and the Company In connection with written notice that such Debt Financing has been obtained and (y) deliver (or cause to be delivered) to Seller and the Company true, correct and complete copies of all arrangements pursuant to which any Financing Parties shall have committed to provide any portion of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further that, in no event shall the receipt of such Debt Financing be a condition to Closing and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. Prior to the Closing, subject to Section 8.11.2, the Company Seller shall use commercially reasonable best efforts toto provide, and shall use its commercially reasonable best efforts to cause its Representatives, including legal and accounting advisors, to provide (in all cases prior to the Company Subsidiaries and its and their respective Representatives toClosing), reasonable cooperation in each case at Buyer’s sole expense, provide to Buyer such cooperation reasonably requested by Buyer that is reasonably necessary in arranging, obtaining and syndicating connection with the arrangement of the Debt Financing, if any (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the operations of the Group Companies), including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies Financing as may be reasonably requested by Buyer for the completion of Purchaser and that is necessary or customary and is reasonably requested by the Purchaser in connection with the Purchaser’s efforts to obtain the Debt Financing, including using commercially reasonable efforts to:
(bi) participating as promptly as practicable furnish the Purchaser with information regarding the Business customarily included in telephonic meetings marketing materials for financings similar to the financings contemplated by the Debt Commitment Letter;
(ii) upon reasonable prior notice, reasonably participate in a reasonable number of meetings, conference calls, presentations and roadshows with prospective lenders and investors, and drafting sessions and otherwise reasonably assisting cooperate with customary marketing efforts for any of the debt financing contemplated by the Debt Commitment Letter;
(iii) reasonably assist the Purchaser and the Lenders with the timely preparation of appropriate and any customary materials customary bank information memoranda, lender presentations, due diligence sessions investor presentations and similar customary documents for use in connection with the financing contemplated by the Debt Commitment Letter;
(including accounting due diligence sessionsiv) cause the Transferred Entities to promptly execute and sessions deliver to the Purchaser and the Lenders at least four Business Days prior to the Closing Date all documentation and other information with rating agencies respect to the Business that is required in connection with the Debt Financing to the extent reasonable and customary for financings of such type, (c) reasonably assisting in the preparation of (i) customary bank information memoranda, lender and investor presentations, offering documents, offering or private placement memoranda and other similar marketing documents and due diligence efforts for the Debt Financing and (ii) customary authorization and representation letters, each as required in connection with the Debt Financing, authorizing the distribution of information to prospective lenders and containing a representation that the public side of such documents, if any, do not include any information about any Group Company or any securities of any Group Company that would constitute material non-public information within the meaning of the United States federal and state securities laws if any Group Company were a public reporting company, (d) using reasonable best efforts to cause the Company’s independent registered accounting firm to provide customary assistance, including (i) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) in connection with any capital markets transaction comprising a part of the Debt Financing, (ii) providing customary consents to the inclusion of their audit report in respect of any financial statements of the Company and the Company Subsidiaries in any offering documents relating to the Debt Financing and (iii) reasonable assistance and cooperation to Buyer with respect to any auditor due diligence, (e) subject to and conditioned on the occurrence of the Closing, the taking of customary corporate actions reasonably necessary to permit the consummation of and funding of the Debt Financing, (f) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth in any definitive document relating to the Debt Financing to the extent satisfaction of such condition requires the cooperation of, or is within the control of, the Group Companies, (g) delivering to Buyer at least three (3) Business Days prior to the Closing all such documentation and information as is reasonably requested in writing by Buyer at least ten (10) Business Days prior to the Closing to the extent required by U.S. regulatory authorities under applicable “know your know-your-customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act Act, and the requirements of 31 C.F.R. §1010.230, provided that such documentation and other information is requested at least eight Business Days prior to the Closing Date; and
(hv) facilitating cause the Transferred Entities to execute and assisting in the preparation deliver as of Closing (but not prior to Closing) any guarantee, pledge and delivery of any credit agreementssecurity documents, indenturesand other definitive financing documents, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection or other certificates or documents as may be reasonably requested by the Purchaser or the Lenders (but not including any certificate from any officer or employee of the Business with respect to solvency matters) it being understood that such documents will not take effect until the Closing, and otherwise reasonably facilitate the pledging of collateral and the granting of security interests in respect of the financing contemplated by the Debt Commitment Letter (including using commercially reasonable efforts to deliver any original stock certificates and related powers and any original promissory notes and related powers to the extent intended to constitute collateral in respect of the Debt Financing), it being understood that such pledge and such documents with not take effect until the Closing; provided that, in connection with complying with this Section 5.10(b), (A) none of the Seller, any of its Subsidiaries or any of their respective officers, directors, managers, employees, accountants, consultants, legal counsel, agents or other definitive documents Representatives shall be required to pay (or agree to pay) any commitment or other fee or incur any Liability with respect to matters relating to the Debt Financing relating to the Group Companies, and their respective businesses to be included in the definitive documents relating to the Debt Financing, and assist with the execution and delivery of the same, in each case, solely to the extent reasonable and customary for financings of such type, (i) cooperating with internal and external counsel of Buyer 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 Debt Financing, in each case, solely to the extent reasonable and customary for financings of such type, and (j) obtaining and providing documents to Buyer (including draft payoff letters) relating to the repayment of the Indebtedness and the release of related guarantees and Liens in accordance with the terms of this Agreement. The Company hereby consents, on behalf of itself and the Group Companies, to the use of the logos of the Group Companies in connection with the Debt Financing; provided that such logos are used solely in a manner that is not intended to, nor is reasonably likely to, harm or disparage the Company’s or any of its Affiliates’ reputation or goodwill.
8.11.2. Notwithstanding anything in this Agreement to the contrary, (a) no Group Company nor any of their respective Representatives shall be required, under the provisions of this Section 8.11 or otherwise in connection with the Debt Financing, to pay any commitment or other similar fee or enter into any binding agreement (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) or commitment or incur any other actual or potential liability or obligation in connection with the Debt Financing prior to the Closing that is not advanced by Buyer, (b) no Group Company or any of their respective Representatives, managers, officers or employees shall be required to execute or enter into, perform or authorize any agreement with respect to the Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) that is not contingent upon the Closing or that would be effective prior to the Closing Date, (c) no Representative, manager, officer or employee of any Group Company shall be required to deliver any certificate or take any other action pursuant to this Section 8.11 except to the extent any such action would reasonably be expected with regard to result in personal liability to such Representative, manager, officer a Transferred Entity and effective upon or employeeafter the Closing), (dB) no Group Company or the Seller and its Subsidiaries and their respective Representatives officers and employees shall not be required to take any action that would reasonably be expected, in materially and unreasonably interfere with the reasonable judgment operation of the Company, to conflict with, or result in any violation or breach of, any applicable Laws, any organizational documents business of any Group Company, any contract or obligations of confidentiality (not created in contemplation hereof) binding on any Group Company, (e) no Group Company the Seller or any of their respective Representatives its Subsidiaries, (C) no such cooperation shall be required to take any action the extent that it would (i) cause any condition to the Closing set forth herein in Article VII to not fail to be satisfied or otherwise cause any breach of this Agreement, (fii) no Group Company reasonably be expected to cause any director, officer or employee of the Seller or any of their respective Representatives its Subsidiaries to incur any personal liability or (iii) cause any breach of any applicable Law or any Material Contract or organizational document to which the Seller or any of its Subsidiaries is a party, (D) Seller and its Subsidiaries other than the Transferred Entities shall not be required to enter into, execute, or approve any agreement or other documentation, or agree to any change or modification of any existing agreement or other documentation except as otherwise expressly contemplated by this Agreement, and (E) the only financial statements that the Seller or any of its Subsidiaries shall be required to make deliver in connection with this Section 5.10(b) shall be the Financial Statements. Nothing in this Agreement will require the Seller or any representation, warranties of its Subsidiaries or certifications as to which, the Company has, in any of its good faith, determined is not true, (g) no Group Companies or their respective Representatives shall be required to provide, and the Buyer will be solely responsible for the preparation of: (1) pro forma financial information; (2) any description of all or any component of the Debt Financing; or (3) projections, risk factors or other forward-looking statements relating to all or any component of the Debt Financing; and (h) no Group Company shall be required to provide access (or be deemed to or disclose information that require the Company determines would jeopardize any attorney–client privilege or other similar privilege of the Company Seller or any of its Subsidiaries. Promptly upon request by the Company, Xxxxx will reimburse the Company for any reasonable costs and expenses (including reasonable attorneys’ feesSubsidiaries to prepare) incurred by the Company, the Company Subsidiaries or any of their Representatives in connection with the cooperation of the Company, the Company Subsidiaries and their Representatives contemplated by this Section 8.11. Except in the case of fraud or a breach of this Agreement, Buyer shall indemnify, defend, and hold harmless the Group Companies and their respective Representatives from and against any and all losses, damages, awards, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecution, investigation, defense or settlement of any of the foregoing) and other amounts suffered or incurred by them in connection with (i) any action taken by them at the request of Buyer pursuant to this Section 8.11 or in connection with the arrangement of the Debt Financing or (ii) any information utilized in connection therewith, and the foregoing obligations shall survive termination of this Agreement and the occurrence of the Closing. In addition, no action, liability or obligation of the Company, any of the Company Subsidiaries or any of their respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to any Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) will be effective until the Closing Date. All material, non-public information regarding the Group Companies provided to Buyer or any of its Representatives pursuant to this Section 8.11 shall be kept confidential by them in accordance with the Confidentiality Agreement except for disclosure to potential investors as required in connection with the Debt Financing subject to customary confidentiality protections. Notwithstanding anything (1) a third-party solvency opinion, (2) any legal opinions or (3) any projections, pro forma financial statements or proposed debt and equity capitalization that is required for such pro forma financial statements relating to the contrary, the Company shall be deemed to have complied with this Section 8.11 for all purposes of this Agreement (including Article 6 and Article 7) unless transactions contemplated hereby or the Debt Financing has (provided, customary information for Purchaser to prepare pro forma financial statements shall not been obtained primarily as a result of the Company’s Willful Breach of its obligations under be excluded by this Section 8.11. Notwithstanding anything herein to the contrary, Xxxxx acknowledges and agrees that obtaining any Debt Financing is not a condition to the Closingclause (3)).
Appears in 2 contracts
Samples: Equity and Asset Purchase Agreement (Liberty Tax, Inc.), Equity and Asset Purchase Agreement (Sears Hometown & Outlet Stores, Inc.)
Financing Cooperation. 8.11.1. Buyer may determine(a) Prior to the Closing, in the Seller shall provide, and shall cause its sole discretionSubsidiaries to, and shall use its commercially reasonable efforts to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that cause their respective Representatives, including legal and accounting, to, provide all cooperation reasonably requested by the Buyer shallor any financing source providing the Financing in connection with the Financing, promptly after including, without limitation (i) furnishing the Buyer and its financing sources with readily-available historical financial and other pertinent information used by the Buyer to consummate the Financing or any other financing transaction executed in connection with the transactions contemplated hereby, (ii) delivering to the Title Company the Owner’s Affidavit and all other items reasonably requested by the Buyer or the Title Company in order to facilitate the issuance of customary lender’s policies of title insurance in form and substance satisfactory to the applicable financing source, (iii) taking such Debt Financing is obtained (x) provide Seller actions as are reasonably and customarily undertaken by sellers of real estate to mitigate mortgage recording or similar taxes such as requesting the Company with written notice that such Debt Financing has been obtained lender under the Existing Loans to assign over existing mortgages to Buyer’s lender, as described in Article XV of this Agreement and (yiv) deliver (or cause providing such information, documents and certificates reasonably requested by the Buyer customary in debt financings of transactions similar to be delivered) to Seller and the Company true, correct and complete copies of all arrangements pursuant to which any Financing Parties shall have committed to provide any portion of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further that, in no event shall the receipt of such Debt Financing be a condition to Closing and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. Prior to the Closing, subject to Section 8.11.2, the Company shall use reasonable best efforts to, and shall use reasonable best efforts to cause the Company Subsidiaries and its and their respective Representatives to, in each case at Buyer’s sole expense, provide to Buyer such cooperation reasonably requested by Buyer that is reasonably necessary in arranging, obtaining and syndicating the Debt Financing, if any (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the operations of the Group Companies), including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies as may be reasonably requested by Buyer for the completion of the Debt Financing, Agreement.
(b) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies in connection with the Debt Financing Notwithstanding anything to the extent reasonable and customary for financings of such type, (c) reasonably assisting in the preparation of (i) customary bank information memoranda, lender and investor presentations, offering documents, offering or private placement memoranda and other similar marketing documents and due diligence efforts for the Debt Financing and (ii) customary authorization and representation letters, each as required in connection with the Debt Financing, authorizing the distribution of information to prospective lenders and containing a representation that the public side of such documents, if any, do not include any information about any Group Company or any securities of any Group Company that would constitute material non-public information within the meaning of the United States federal and state securities laws if any Group Company were a public reporting company, (d) using reasonable best efforts to cause the Company’s independent registered accounting firm to provide customary assistance, including (i) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) in connection with any capital markets transaction comprising a part of the Debt Financing, (ii) providing customary consents to the inclusion of their audit report in respect of any financial statements of the Company and the Company Subsidiaries in any offering documents relating to the Debt Financing and (iii) reasonable assistance and cooperation to Buyer with respect to any auditor due diligence, (e) subject to and conditioned on the occurrence of the Closing, the taking of customary corporate actions reasonably necessary to permit the consummation of and funding of the Debt Financing, (f) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth in any definitive document relating to the Debt Financing to the extent satisfaction of such condition requires the cooperation of, or is within the control of, the Group Companies, (g) delivering to Buyer at least three (3) Business Days prior to the Closing all such documentation and information as is reasonably requested in writing by Buyer at least ten (10) Business Days prior to the Closing to the extent required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act and the requirements of 31 C.F.R. §1010.230, (h) facilitating and assisting in the preparation and delivery of any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents relating to the Debt Financing relating to the Group Companies, and their respective businesses to be included in the definitive documents relating to the Debt Financing, and assist with the execution and delivery of the same, in each case, solely to the extent reasonable and customary for financings of such typecontrary contained herein, (i) cooperating with internal and external counsel of Buyer 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 neither the Debt Financing, in each case, solely to the extent reasonable and customary for financings of such type, and (j) obtaining and providing documents to Buyer (including draft payoff letters) relating to the repayment of the Indebtedness and the release of related guarantees and Liens in accordance with the terms of this Agreement. The Company hereby consents, on behalf of itself and the Group Companies, to the use of the logos of the Group Companies in connection with the Debt Financing; provided that such logos are used solely in a manner that is not intended to, Seller nor is reasonably likely to, harm or disparage the Company’s or any of its Affiliates’ reputation or goodwill.
8.11.2. Notwithstanding anything in this Agreement to the contrary, (a) no Group Company nor any of their respective Representatives Subsidiaries shall be required, under the provisions of this Section 8.11 or otherwise in connection with the Debt Financing, required to pay any commitment or other similar fee or enter into any binding agreement (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) or commitment or incur any other actual or potential liability or obligation in connection with the Debt Financing Financing, (ii) neither the Seller nor any of its Subsidiaries shall be required to incur, and none of them shall have, prior to the Closing that is not advanced by BuyerClosing, any liability or obligation under any loan agreement or any related document or any other agreement or document or contract related to the Financing, (biii) no Group Company the pre-Closing directors of the Seller or any of their respective Representativesits Subsidiaries shall not be required to adopt resolutions approving the contracts, managersagreements, officers or employees documents and instruments pursuant to which the Financing is obtained, (iv) neither the Seller nor any of its Subsidiaries shall be required to execute any definitive financing documents, including any credit or enter intoother agreements, perform pledge or authorize security documents, or other certificates, legal opinions or documents in connection with the Financing and (v) neither the Seller nor any agreement with respect to the Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) that is not contingent upon the Closing or that would be effective prior to the Closing Date, (c) no Representative, manager, officer or employee of any Group Company shall be required to deliver any certificate or take any other action pursuant to this Section 8.11 to the extent any such action would reasonably be expected to result in personal liability to such Representative, manager, officer or employee, (d) no Group Company or their respective Representatives its Subsidiaries shall be required to take any action that would violate its respective Organizational Documents or any Laws or that would result in the contravention of, or that would reasonably be expected, in the reasonable judgment of the Company, expected to conflict with, or result in any a violation or breach of, any applicable Lawsor a default under, any organizational documents of Contract to which any Group Company, any contract or obligations of confidentiality (not created in contemplation hereof) binding on any Group Company, (e) no Group Company or any of their respective Representatives shall be required to take any action that would cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement, (f) no Group Company or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, the Company has, in its good faith, determined such Person is not true, (g) no Group Companies or their respective Representatives shall be required to provide, and the Buyer will be solely responsible for the preparation of: (1) pro forma financial information; (2) any description of all or any component of the Debt Financing; or (3) projections, risk factors or other forward-looking statements relating to all or any component of the Debt Financing; and (h) no Group Company shall be required to provide access to or disclose information that the Company determines would jeopardize any attorney–client privilege or other similar privilege of the Company or any of its Subsidiaries. Promptly upon request by the Company, Xxxxx will reimburse the Company for any reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Company, the Company Subsidiaries or any of their Representatives in connection with the cooperation of the Company, the Company Subsidiaries and their Representatives contemplated by this Section 8.11. Except in the case of fraud or a breach of this Agreement, Buyer shall indemnify, defend, and hold harmless the Group Companies and their respective Representatives from and against any and all losses, damages, awards, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecution, investigation, defense or settlement of any of the foregoing) and other amounts suffered or incurred by them in connection with (i) any action taken by them at the request of Buyer pursuant to this Section 8.11 or in connection with the arrangement of the Debt Financing or (ii) any information utilized in connection therewith, and the foregoing obligations shall survive termination of this Agreement and the occurrence of the Closing. In addition, no action, liability or obligation of the Company, any of the Company Subsidiaries or any of their respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to any Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) will be effective until the Closing Date. All material, non-public information regarding the Group Companies provided to Buyer or any of its Representatives pursuant to this Section 8.11 shall be kept confidential by them in accordance with the Confidentiality Agreement except for disclosure to potential investors as required in connection with the Debt Financing subject to customary confidentiality protections. Notwithstanding anything to the contrary, the Company shall be deemed to have complied with this Section 8.11 for all purposes of this Agreement (including Article 6 and Article 7) unless the Debt Financing has not been obtained primarily as a result of the Company’s Willful Breach of its obligations under this Section 8.11. Notwithstanding anything herein to the contrary, Xxxxx acknowledges and agrees that obtaining any Debt Financing is not a condition to the Closingparty.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Colony Financial, Inc.), Asset Purchase Agreement (Colony Financial, Inc.)
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (x) provide Seller and the Company with written notice that such Debt Financing has been obtained and (y) deliver (or cause to be delivered) to Seller and the Company true, correct and complete copies of all arrangements pursuant to which any Financing Parties shall have committed to provide any portion of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further that, in no event shall the receipt of such Debt Financing be a condition to Closing and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. Prior to the ClosingClosing or termination of this Agreement, subject to Section 8.11.2, the Company shall use reasonable best efforts to, and shall use reasonable best efforts to cause the Company Subsidiaries and its and their respective Representatives to, in each case at Buyer’s sole cost and expense, Sellers shall, and shall cause the Acquired Companies and each of the Sellers’, the Company’s, such Subsidiaries’, and their respective Affiliates’ directors, officers, managers, representatives, auditors, and advisors to, provide reasonable cooperation to Buyer such cooperation reasonably requested by Buyer that is reasonably necessary and its Affiliates in arranging, obtaining and syndicating the Debt Financing, if arranging of any (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the operations debt financing of the Group Companies)Buyer, including as promptly as reasonably practicalthe Company, or the Company’s Subsidiaries, and to use their respective commercially reasonable efforts (a) to cause appropriate officers and employees of the Acquired Companies (i) to be available on a customary basis to meet with prospective lenders, rating agencies and investors in presentations, meetings, road shows and due diligence sessions, (ii) to assist with the preparation of disclosure documents, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations, projections and similar documents in connection therewith, (iii) furnishing Buyer and its Financing Sources with the Required Financial Information financial statements and financial and other pertinent information regarding the Group Acquired Companies as may be reasonably requested by Buyer for to consummate the completion of the Debt Financingfinancing, (biv) participating in telephonic meetings to execute and otherwise deliver any definitive financing documentation, security documents, hedging arrangements, customary certificates, legal opinions (which may be reasoned, if counsel reasonably assisting with believes it cannot give the preparation of appropriate and customary materials customary presentations, due diligence sessions (including accounting due diligence sessionsopinion otherwise) and sessions with rating agencies or other documents as may be reasonably requested by Buyer in connection with the Debt Financing to financing, in each case which will become effective only on or after the extent reasonable and customary for financings of such typeClosing, (cv) reasonably assisting in to take such reasonable actions as may be required to facilitate the preparation pledge of collateral to secure the financing (i) customary bank information memoranda, lender and investor presentations, offering documents, offering or private placement memoranda and other similar marketing documents and due diligence efforts for the Debt Financing and (ii) customary authorization and representation letters, each as required including cooperation in connection with the Debt Financing, authorizing pay‑off of existing Indebtedness and the distribution release of information to prospective lenders and containing a representation that the public side of such documents, if any, do not include any information about any Group Company or any securities of any Group Company that would constitute material non-public information within the meaning of the United States federal and state securities laws if any Group Company were a public reporting companyLiens related thereto), (dvi) using reasonable best efforts to cause obtain all waivers, consents and approvals from other parties to contracts and liens to which the Company’s independent registered accounting firm to provide customary assistanceAcquired Companies are a party or by which any of them or their assets or properties are bound or subject, including (i) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) in connection with any capital markets transaction comprising a part of the Debt Financing, (ii) providing customary consents to the inclusion of their audit report in respect of any financial statements of the Company and the Company Subsidiaries in any offering documents relating to the Debt Financing and (iiivii) reasonable assistance and cooperation to Buyer with respect to any auditor due diligence, (e) subject to and conditioned on the occurrence of the Closing, the taking of customary corporate take all other actions reasonably necessary to permit the consummation of the financing and funding (b) to cause the independent certified public accountants of the Debt FinancingAcquired Companies to provide assistance to Buyer, (f) reasonably assisting in Buyer’s efforts including providing consent, on a customary basis, to satisfy the conditions precedent set forth in any definitive document Buyer to use their audit reports relating to the Debt Financing Acquired Companies and, at the cost of Buyer, to the extent satisfaction of such condition requires the cooperation of, or is within the control of, the Group Companies, (g) delivering to Buyer at least three (3) Business Days prior to the Closing all such documentation and information as is reasonably requested in writing by Buyer at least ten (10) Business Days prior to the Closing to the extent required by U.S. regulatory authorities under applicable provide any necessary “know your customercomfort letters” and anti-money laundering rules to prepare and regulations, including the PATRIOT Act deliver other customary documents and the requirements of 31 C.F.R. §1010.230, (h) facilitating and assisting in the preparation and delivery of any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents relating to the Debt Financing relating to the Group Companies, and their respective businesses to be included in the definitive documents relating to the Debt Financing, and assist with the execution and delivery of the same, in each case, solely to the extent reasonable and customary for financings of such type, (i) cooperating with internal and external counsel of Buyer 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 Debt Financing, in each case, solely to the extent reasonable and customary for financings of such type, and (j) obtaining and providing documents to Buyer (including draft payoff letters) relating to the repayment of the Indebtedness and the release of related guarantees and Liens in accordance with the terms of this Agreement. The Company hereby consents, on behalf of itself and the Group Companies, to the use of the logos of the Group Companies in connection with the Debt Financing; provided that such logos are used solely in a manner that is not intended to, nor is reasonably likely to, harm or disparage the Company’s or any of its Affiliates’ reputation or goodwillinstruments.
8.11.2. Notwithstanding anything in this Agreement to the contrary, (a) no Group Company nor any of their respective Representatives shall be required, under the provisions of this Section 8.11 or otherwise in connection with the Debt Financing, to pay any commitment or other similar fee or enter into any binding agreement (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) or commitment or incur any other actual or potential liability or obligation in connection with the Debt Financing prior to the Closing that is not advanced by Buyer, (b) no Group Company or any of their respective Representatives, managers, officers or employees shall be required to execute or enter into, perform or authorize any agreement with respect to the Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) that is not contingent upon the Closing or that would be effective prior to the Closing Date, (c) no Representative, manager, officer or employee of any Group Company shall be required to deliver any certificate or take any other action pursuant to this Section 8.11 to the extent any such action would reasonably be expected to result in personal liability to such Representative, manager, officer or employee, (d) no Group Company or their respective Representatives shall be required to take any action that would reasonably be expected, in the reasonable judgment of the Company, to conflict with, or result in any violation or breach of, any applicable Laws, any organizational documents of any Group Company, any contract or obligations of confidentiality (not created in contemplation hereof) binding on any Group Company, (e) no Group Company or any of their respective Representatives shall be required to take any action that would cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement, (f) no Group Company or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, the Company has, in its good faith, determined is not true, (g) no Group Companies or their respective Representatives shall be required to provide, and the Buyer will be solely responsible for the preparation of: (1) pro forma financial information; (2) any description of all or any component of the Debt Financing; or (3) projections, risk factors or other forward-looking statements relating to all or any component of the Debt Financing; and (h) no Group Company shall be required to provide access to or disclose information that the Company determines would jeopardize any attorney–client privilege or other similar privilege of the Company or any of its Subsidiaries. Promptly upon request by the Company, Xxxxx will reimburse the Company for any reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Company, the Company Subsidiaries or any of their Representatives in connection with the cooperation of the Company, the Company Subsidiaries and their Representatives contemplated by this Section 8.11. Except in the case of fraud or a breach of this Agreement, Buyer shall indemnify, defend, and hold harmless the Group Companies and their respective Representatives from and against any and all losses, damages, awards, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecution, investigation, defense or settlement of any of the foregoing) and other amounts suffered or incurred by them in connection with (i) any action taken by them at the request of Buyer pursuant to this Section 8.11 or in connection with the arrangement of the Debt Financing or (ii) any information utilized in connection therewith, and the foregoing obligations shall survive termination of this Agreement and the occurrence of the Closing. In addition, no action, liability or obligation of the Company, any of the Company Subsidiaries or any of their respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to any Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) will be effective until the Closing Date. All material, non-public information regarding the Group Companies provided to Buyer or any of its Representatives pursuant to this Section 8.11 shall be kept confidential by them in accordance with the Confidentiality Agreement except for disclosure to potential investors as required in connection with the Debt Financing subject to customary confidentiality protections. Notwithstanding anything to the contrary, the Company shall be deemed to have complied with this Section 8.11 for all purposes of this Agreement (including Article 6 and Article 7) unless the Debt Financing has not been obtained primarily as a result of the Company’s Willful Breach of its obligations under this Section 8.11. Notwithstanding anything herein to the contrary, Xxxxx acknowledges and agrees that obtaining any Debt Financing is not a condition to the Closing.
Appears in 2 contracts
Samples: Membership Interest Purchase and Sale Agreement, Membership Interest Purchase and Sale Agreement (Laredo Petroleum, Inc.)
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (xa) provide Seller and the Company with written notice that such Debt Financing has been obtained and (y) deliver (or cause to be delivered) to Seller and the Company true, correct and complete copies of all arrangements pursuant to which any Financing Parties shall have committed to provide any portion of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further that, in no event shall the receipt of such Debt Financing be a condition to Closing and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. Prior to the Closing, subject to Section 8.11.2at Parent’s sole expense, the Company shall use reasonable best efforts toMember shall, and shall cause each of its Subsidiaries to, use its and their reasonable best efforts to provide, and cause the Company Subsidiaries and its and their respective Representatives toto provide, in each case at Buyer’s sole expense, provide to Buyer such all cooperation reasonably requested by Buyer Parent in connection with the arrangement of the Financing and that is reasonably necessary customary in arrangingconnection with the arrangement of financings similar to those contemplated by the Commitment Letters, obtaining and syndicating the Debt Financing, if any (provided in a manner that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the business or ongoing operations of the Group CompaniesMember and its Subsidiaries, including:
(i) participating and making the appropriate senior officers of the Company available to participate in a reasonable number of meetings (including customary one-on-one meetings with Financing Sources and potential financing sources and senior management and other Representatives of the Company), due diligence sessions, drafting sessions, presentations, “road shows” and sessions with prospective rating agencies in connection with the Financing;
(ii) cooperating with the marketing efforts and due diligence efforts of Parent and its financing sources, including assisting with the preparation of customary offering memoranda, private placement memoranda, bank offering memoranda (including a bank information memorandum that does not include material non-public information), syndication memoranda, lender presentations and similar documents and other customary marketing materials (including causing the Company and its Subsidiaries to deliver customary representation letters, authorization letters, confirmations and undertakings, in each case as promptly as reasonably practical, contemplated by the Commitment Letters) required in connection with the Financing;
(aiii) furnishing Buyer providing Parent and its financing sources with the Required Financial Information in a timely fashion such that Parent is able to comply with its obligations under the Commitment Letters with respect thereto and other pertinent information regarding the Group Companies business of the Company and its Subsidiaries as may be reasonably requested in writing by Buyer Parent in order to consummate the Financing and supplementing the same to the extent any such Required Information or other information, to the knowledge of the Member, contains any material misstatement of fact or omits to state any material fact necessary to make such information not misleading, as soon as reasonably practicable after obtaining knowledge thereof;
(iv) executing and delivering any credit agreements, notes, guarantees, pledge and security documents, hedging arrangements and other definitive financing documents or other requested certificates or documents (including a certificate with respect to solvency matters);
(v) taking such actions as are reasonably requested by Parent to assist with collateral audits and due diligence examination, including collateral eligibility criteria and other related criteria described in or contemplated by the Commitment Letters and granting any valuation agent acting on behalf of the Financing Sources, at reasonable times and on reasonable advance notice, access to the books and records of the Group Companies for the completion preparation of a valuation report with respect to the assets of the Debt Group Companies to be included in the collateral contemplated by the Financing, ;
(bvi) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate the borrowing base certificate contemplated by the Commitment Letters and customary materials customary presentations, due diligence sessions facilitating the granting of a security interest (including accounting due diligence sessionsand perfection thereof) and sessions with rating agencies in connection with the Debt Financing to the extent reasonable and customary for financings of such type, (c) reasonably assisting in the preparation of collateral contemplated by the Financing; and
(ivii) customary bank information memoranda, lender and investor presentations, offering documents, offering or private placement memoranda and other similar marketing documents and due diligence efforts for the Debt Financing and (ii) customary authorization and representation letters, each as required in connection with the Debt Financing, authorizing the distribution of information to prospective lenders and containing a representation that the public side of such documents, if any, do not include any information about any Group Company or any securities of any Group Company that would constitute material non-public information within the meaning of the United States federal and state securities laws if any Group Company were a public reporting company, (d) using reasonable best efforts to cause the Company’s independent registered accounting firm to provide customary assistance, including (i) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) in connection with any capital markets transaction comprising a part of the Debt Financing, (ii) providing customary consents to the inclusion of their audit report in respect of any financial statements of the Company and the Company Subsidiaries in any offering documents relating to the Debt Financing and (iii) reasonable assistance and cooperation to Buyer with respect to any auditor due diligence, (e) subject to and conditioned on the occurrence of the Closing, the taking of customary corporate actions reasonably necessary to permit the consummation of and funding of the Debt Financing, (f) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth in any definitive document relating to the Debt Financing to the extent satisfaction of such condition requires the cooperation of, or is within the control of, the Group Companies, (g) delivering to Buyer at least three five (35) Business Days prior to the Closing Closing, providing all such documentation and other information as about the Group Companies that the Financing Sources have reasonably determined is reasonably requested in writing by Buyer at least ten (10) Business Days prior required to the Closing comply with applicable Law to the extent required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and (provided, that if the requirements Member does not provide such documentation at least five (5) Business Days prior to Closing, the Member shall not be deemed to be in breach of 31 C.F.R. §1010.230this Section 5.08(a)(vii) if such documentation or information was not requested, in writing, from the Member by Parent or a Financing Source at least five (5) Business Days prior to the Closing); provided, that nothing in this Agreement, (hincluding this Section 5.08) facilitating and assisting in the preparation and delivery of shall (x) require any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents relating to the Debt Financing relating to the Group Companies, and their respective businesses to be included in the definitive documents relating to the Debt Financing, and assist with the execution and delivery of the same, in each case, solely such cooperation to the extent reasonable and customary for financings of such type, that it would (iA) cooperating with internal and external counsel of Buyer 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 require the Debt Financing, in each case, solely to the extent reasonable and customary for financings of such type, and (j) obtaining and providing documents to Buyer (including draft payoff letters) relating to the repayment of the Indebtedness and the release of related guarantees and Liens in accordance with the terms of this Agreement. The Company hereby consents, on behalf of itself and the Group Companies, to the use of the logos of the Group Companies in connection with the Debt Financing; provided that such logos are used solely in a manner that is not intended to, nor is reasonably likely to, harm or disparage the Company’s Member or any of its Affiliates’ reputation Subsidiaries to enter into or goodwill.
8.11.2. Notwithstanding anything in this Agreement approve any agreement or other documentation that would be effective at any time before the time that will be immediately prior to the contrary, (a) no Group Company nor any Closing or the effectiveness of their respective Representatives shall be required, under which is not conditioned on the provisions of this Section 8.11 or otherwise in connection with the Debt Financing, to pay any commitment or other similar fee or enter into any binding agreement Closing (other than the execution of the representation letters, authorization letters letters, confirmations and undertakings referred to in clause (c)(iiii) of Section 8.11.1) or commitment or incur any other actual or potential liability or obligation in connection with the Debt Financing prior to the Closing that is not advanced by Buyerabove), (bB) no Group Company require the Member, or any of its Subsidiaries or any of their respective Representatives, managers, officers boards of directors (or employees shall be required equivalent bodies) to execute or enter into, perform approve or authorize any agreement the Financing (provided, that the Member and its Subsidiaries shall reasonably cooperate with respect Parent to appoint Parent’s designees to the Debt Financing respective boards of directors (other than the execution or equivalent bodies) of the authorization letters referred Group Companies as of immediately prior to in clause (c)(ii) Closing for purposes of Section 8.11.1) that approving resolutions, the effectiveness of which is not contingent to be conditioned upon the Closing or that would be effective prior Closing, related to the Closing DateFinancing), (cC) no Representative, manager, officer or employee of any Group Company shall be required to deliver any certificate or take any other action pursuant to this Section 8.11 to the extent any such action would reasonably be expected to result in personal liability to such Representative, manager, officer or employee, (d) no Group Company or their respective Representatives shall be required to take any action that would reasonably be expected, in the reasonable judgment of the Company, to conflict with, or result in any violation or breach of, any applicable Laws, any organizational documents of any Group Company, any contract or obligations of confidentiality (not created in contemplation hereof) binding on any Group Company, (e) no Group Company or any of their respective Representatives shall be required to take any action that would cause any condition to the Closing set forth herein in Section 8.01 or Section 8.02 to not be satisfied or otherwise cause any breach of this AgreementAgreement that would provide Parent the right to terminate this Agreement or seek indemnity under the terms hereof (unless, in each case, waived by Parent) or (fD) no Group Company conflict with or violate the Member’s or its Subsidiaries’ respective Governing Document or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, the Company has, in its good faith, determined is not true, (g) no Group Companies or their respective Representatives shall be required to provide, and the Buyer will be solely responsible for the preparation of: (1) pro forma financial information; (2) any description of all or any component of the Debt Financing; applicable Law or (3y) projectionsrequire the Member, risk factors or other forward-looking statements relating to all or any component of the Debt Financing; and (h) no Group Company shall be required to provide access to or disclose information that the Company determines would jeopardize any attorney–client privilege or other similar privilege of the Company or any of its Subsidiaries. Promptly Subsidiaries or any Representative thereof to cause the delivery of legal opinions, reliance letters or any certificates that would be effective at any time before the time that will be immediately prior to the Closing or that the effectiveness of which is not conditioned on the Closing (other than the representation letters, authorization letters, confirmations and undertakings referred to in clause (ii) above).
(b) Parent shall, promptly upon the request by of the CompanyMember, Xxxxx will reimburse the Company Member for any all reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred by the Company, the Company Member and its Subsidiaries or any of their Representatives in connection with the cooperation of the Company, the Company Subsidiaries and their Representatives contemplated by this Section 8.11. Except in the case of fraud or 5.08(a) and Parent and Holdco shall, on a breach of this Agreementjoint and several basis, Buyer shall indemnify, defend, indemnify and hold harmless the Group Companies Member and its Subsidiaries and their respective Representatives from and against any and all liabilities, losses, damages, claims, interest, awards, finesjudgments, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, penalties and reasonable and documented out-of-pocket costs or expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecution, investigation, defense or settlement of any of the foregoing) and other amounts suffered or incurred by any of them in connection with the Financing (i) including any action taken by them at the request of Buyer pursuant to actions under this Section 8.11 or in connection with the arrangement of the Debt Financing or (ii5.08) and any information utilized in connection therewith, and therewith (other than any information prepared or provided by the foregoing obligations shall survive termination of this Agreement and the occurrence of the Closing. In addition, no action, liability Member or obligation of the Company, any of the Company its Subsidiaries or any of their respective Representatives pursuant Representatives) except, in each case with respect to any certificatethe foregoing indemnity, agreementto the extent resulting from bad faith, arrangement, document gross negligence or instrument relating to any Debt Financing (other than the execution willful misconduct of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) will be effective until the Closing Date. All material, non-public information regarding the Group Companies provided to Buyer Member or any of its Representatives pursuant to this Section 8.11 shall be kept confidential by them in accordance with the Confidentiality Agreement except for disclosure to potential investors as required in connection with the Debt Financing subject to customary confidentiality protections. Notwithstanding anything to the contrary, the Company shall be deemed to have complied with this Section 8.11 for all purposes Subsidiaries or any of this Agreement (including Article 6 and Article 7) unless the Debt Financing has not been obtained primarily as a result of the Company’s Willful Breach of its obligations under this Section 8.11. Notwithstanding anything herein to the contrary, Xxxxx acknowledges and agrees that obtaining any Debt Financing is not a condition to the Closingtheir respective Representatives.
Appears in 2 contracts
Samples: Master Transaction Agreement (RTI Surgical Holdings, Inc.), Master Transaction Agreement (Rti Surgical, Inc.)
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (xa) provide Seller and the Company with written notice that such Debt Financing has been obtained and (y) deliver (or cause to be delivered) to Seller and the Company true, correct and complete copies of all arrangements pursuant to which any Financing Parties shall have committed to provide any portion of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further that, in no event shall the receipt of such Debt Financing be a condition to Closing and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. Prior to the Closing, subject the Acquired Companies shall provide to Section 8.11.2, the Company shall use reasonable best efforts toPurchaser, and shall use commercially reasonable best efforts to cause the Company Subsidiaries and its and their respective Representatives toofficers, in each case at Buyer’s sole expenseemployees, representatives and advisors, including legal and accounting, to provide to Buyer Purchaser, such customary cooperation reasonably requested by Buyer that is reasonably necessary in arranging, obtaining and syndicating the Debt Financing, if any (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the operations of the Group Companies), including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies as may be reasonably requested by Buyer for the completion of the Debt Financing, (b) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies in connection with the Debt Financing to the extent reasonable and customary for financings of such type, (c) reasonably assisting in the preparation of (i) customary bank information memoranda, lender and investor presentations, offering documents, offering or private placement memoranda and other similar marketing documents and due diligence efforts for the Debt Financing and (ii) customary authorization and representation letters, each as required Purchaser in connection with the Debt Financing, including the following: (i) furnishing Purchaser and the Lenders with such financial and operating data and other information with respect to the Acquired Companies as is reasonably requested by Purchaser and the Lenders and is customarily required for consummation of debt financings similar to the Debt Financing, including, without limitation, information that would enable the Lenders to have a quality of earnings report prepared, together with, to the extent required, a customary authorization letter authorizing the distribution of information to prospective lenders and containing a representation that the public side of such documents, if any, do not include any information about any Group Company or any securities of any Group Company that would constitute material non-public information within the meaning of the United States federal and state securities laws if any Group Company were a public reporting company, (d) using reasonable best efforts to cause the Company’s independent registered accounting firm to provide customary assistance, including (i) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) in connection with any capital markets transaction comprising a part of the Debt Financing, information; (ii) providing customary consents using commercially reasonable efforts: (A) to assist in the inclusion preparation and negotiation of their audit report in respect of any financial statements of the Company definitive financing documentation and the Company Subsidiaries in any offering documents relating schedules and exhibits thereto (including loan agreements, guarantees, collateral agreements, hedging arrangements, and customary officer’s certificates) as may reasonably be requested; and (B) to facilitate the Debt Financing and pledging of collateral; (iii) reasonable assistance furnishing Purchaser and cooperation to Buyer the Lenders promptly with respect to any auditor due diligence, (e) subject to and conditioned on the occurrence of the Closing, the taking of customary corporate actions reasonably necessary to permit the consummation of and funding of the Debt Financing, (f) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth in any definitive document relating to the Debt Financing to the extent satisfaction of such condition requires the cooperation of, or is within the control of, the Group Companies, (g) delivering to Buyer at least three (3) Business Days prior to the Closing all such documentation and other information as is reasonably requested in writing by Buyer at least ten (10) Business Days prior to the Closing to the extent required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and the requirements of 31 C.F.R. §1010.230Beneficial Ownership Regulation, that has been reasonably requested by Purchaser in writing, at least five (h5) facilitating and assisting in the preparation and delivery of any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents relating Business Days prior to the Debt Financing relating to the Group Companies, Closing Date and their respective businesses to be included (iv) participating in the definitive documents relating to the Debt Financing, a reasonable number of virtual or telephone meetings and assist with the execution and delivery of the same, in each case, solely to the extent reasonable and customary for financings of such type, due diligence sessions.
(b) Purchaser shall: (i) cooperating with internal promptly reimburse Seller, the Acquired Companies and external counsel any of Buyer their respective Affiliates and representatives for all of the reasonable and documented out-of-pocket costs and expenses (including attorneys’ fees) incurred by Seller, the Acquired Companies and any of their respective Affiliates and representatives in connection with providing customary back-up certificates this Section 6.9; and factual information regarding (ii) indemnify and hold harmless Seller, the Acquired Companies and any legal opinion that such counsel may be required to deliver of its Affiliates and representatives from and against all claims, losses, damages, injuries, liabilities, judgments, awards, penalties, fines, Taxes, costs (including cost of investigation), expenses (including reasonable and documented attorneys’ fees) or settlement payments suffered or incurred by any of them in connection with the Debt Financing, in each case, solely to the extent reasonable and customary for financings of such type, and (j) obtaining and providing documents to Buyer (including draft payoff letters) relating to the repayment arrangement of the Indebtedness Debt Financing and any information used in connection therewith other than as a result of Seller’s or the release Acquired Companies’ actual fraud or intentional misrepresentation, as finally determined by a court of related guarantees and Liens in accordance with competent jurisdiction. Purchaser shall provide Seller prompt written notice upon becoming aware of any material breach by any party to any Debt Commitment Letter, any failure to carry out any of the material terms of this Agreementany Debt Commitment Letter by any party thereto or any termination of any Debt Commitment Letter by any party thereto. The Company hereby consents, Purchaser shall keep Seller informed on behalf of itself a reasonable basis and the Group Companies, to the use in reasonable detail of the logos status of its efforts to arrange the Group Companies in connection with financings contemplated by the Debt Financing; provided that such logos are used solely in a manner that is not intended to, nor is reasonably likely to, harm or disparage the Company’s or any of its Affiliates’ reputation or goodwillCommitment Letters.
8.11.2. (c) Notwithstanding anything in this Agreement to the contrarycontrary (including this Section 6.9), (a) no Group Company nor none of the Acquired Company, Seller or any of their respective Representatives shall Affiliates or representatives shall: (i) be required, under the provisions required to waive or amend any terms of this Section 8.11 Agreement or otherwise in connection with the Debt Financing, agree to pay any commitment or other similar fee or enter into reimburse any binding agreement expenses prior to the Closing; (other than the execution of the authorization letters referred ii) be required to in clause (c)(ii) of Section 8.11.1) or commitment or incur any other actual or potential liability or obligation give any indemnity in connection with the Debt Financing prior to the Closing that is not advanced by Buyer, Closing; (biii) no Group Company or any of their respective Representatives, managers, officers or employees shall be required to execute or enter into, perform or authorize any agreement with respect to the Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) that is not contingent upon the Closing or that would be effective prior to the Closing Date, (c) no Representative, manager, officer or employee of any Group Company shall be required to deliver any certificate or take any other action pursuant to this Section 8.11 to the extent any such action would reasonably be expected to result in personal liability to such Representative, manager, officer or employee, (d) no Group Company or their respective Representatives shall be required to take any action that would reasonably be expectedrequire any director, in the reasonable judgment officer or employee of Seller or any of the CompanyAcquired Companies to execute any document, agreement, certificate or instrument (other than with respect to conflict withany authorization letter described in this Section 6.9) that would become effective prior to the Closing; (iv) be required to take any action that would unreasonably interfere with the ongoing business or operation of the Acquired Companies, or result in any violation or breach of, any applicable Laws, any organizational documents of any Group Company, any contract or obligations of confidentiality (not created in contemplation hereof) binding on any Group Company, (e) no Group Company Seller or any of their respective Representatives shall Affiliates or representatives; (v) cause any representation or warranty in this Agreement to be breached or become inaccurate; (vi) be required to take any action that would cause any condition director, officer or employee of Seller or the Acquired Companies to incur any personal liability other than in connection with actual fraud; (vii) conflict with or violate the Closing set forth herein Organizational Documents of Seller or the Acquired Companies or applicable Law; (viii) result in the contravention of, or that could reasonably be expected to not be satisfied result in a violation or otherwise cause breach of, or a default under, any breach of this Agreement, (f) no Group Company agreement to which Seller or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, the Company has, its Subsidiaries is a party and not entered into in its good faith, determined is not true, (g) no Group Companies or their respective Representatives shall be required to provide, and the Buyer will be solely responsible for the preparation of: (1) pro forma financial informationconnection therewith; (2ix) any description of all or any component of the Debt Financing; or (3) projections, risk factors or other forward-looking statements relating to all or any component of the Debt Financing; and (h) no Group Company shall be required to provide access to or disclose information that the Company Seller reasonably determines would jeopardize any attorney–-client privilege or other similar privilege of the Company Seller or any of its Subsidiaries. Promptly upon request by the Company, Xxxxx will reimburse the Company for any reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Company, the Company Subsidiaries or any of their Representatives in connection with the cooperation of the Company, the Company Subsidiaries and their Representatives contemplated by this Section 8.11. Except in the case of fraud which is restricted or a breach of this Agreement, Buyer shall indemnify, defend, and hold harmless the Group Companies and their respective Representatives from and against any and all losses, damages, awards, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecution, investigation, defense or settlement of any of the foregoing) and other amounts suffered or incurred by them in connection with (i) any action taken by them at the request of Buyer pursuant to this Section 8.11 or in connection with the arrangement of the Debt Financing prohibited under applicable Law; or (iix) any information utilized in connection therewith, and the foregoing obligations shall survive termination of this Agreement and the occurrence of the Closing. In addition, no action, liability or obligation of the Company, any of the Company Subsidiaries or any of their respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to any Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) will be effective until the Closing Date. All material, non-public information regarding the Group Companies provided to Buyer prepare separate financial statements for Seller or any of its Representatives pursuant to this Section 8.11 shall be kept confidential by them in accordance with the Confidentiality Agreement except for disclosure to potential investors as required in connection with the Debt Financing subject to customary confidentiality protections. Notwithstanding anything to the contrary, the Company shall be deemed to have complied with this Section 8.11 for all purposes of this Agreement (including Article 6 and Article 7) unless the Debt Financing has not been obtained primarily as a result of the Company’s Willful Breach of its obligations under this Section 8.11. Notwithstanding anything herein to the contrary, Xxxxx acknowledges and agrees that obtaining Subsidiaries or change any Debt Financing is not a condition to the Closingfiscal period.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Communications Systems Inc), Securities Purchase Agreement (Lantronix Inc)
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (xa) provide Seller and the Company with written notice that such Debt Financing has been obtained and (y) deliver (or cause to be delivered) to Seller and the Company true, correct and complete copies of all arrangements pursuant to which any Financing Parties shall have committed to provide any portion of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further that, in no event shall the receipt of such Debt Financing be a condition to Closing and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. Prior to the ClosingClosing Date, subject to Section 8.11.2, the Company Parent shall use reasonable best efforts to, and shall use its reasonable best efforts to provide, and shall cause the Company its Subsidiaries and use commercially reasonable efforts to cause its and their respective Representatives toto use commercially reasonable efforts to provide, in each case on a timely basis, to Buyer, at Buyer’s sole expense, provide to Buyer such all cooperation reasonably requested required by Buyer that is reasonably necessary in arrangingconnection with the arrangement, obtaining syndication and syndicating consummation of the Debt Financing, if any including using reasonable best efforts to:
(i) promptly furnish to Buyer and its Debt Financing Sources such customary pertinent financial and other information as Buyer shall reasonably request in order to consummate the Debt Financing;
(ii) provide customary information about the Business and the Business Companies to Buyer promptly following reasonable request for such information to be used in the preparation of materials for rating agency presentations, bank information memoranda and similar marketing documents required in connection with the Debt Financing;
(iii) promptly following Buyer’s reasonable request, provide Buyer with all customary financial information and financial data in connection with Buyer’s preparation of pro forma financial information, financial statements and other pro forma financial data of the Business; provided that Parent shall not be responsible in any manner for information relating to the proposed debt and equity capitalization that is required for such requested cooperation is consistent with applicable Laws pro forma financial information;
(iv) execute and does not unreasonably interfere with the operations deliver as of the Group Companies)Closing any pledge and security documents, including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies definitive financing documents or other certificates or documents as may be reasonably requested by Buyer for the completion of the Debt Financing, (b) participating in telephonic meetings and otherwise reasonably assisting with facilitate the preparation pledging of appropriate and customary materials customary presentationscollateral;
(v) take all corporate actions, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies in connection with the Debt Financing to the extent reasonable and customary for financings of such type, (c) reasonably assisting in the preparation of (i) customary bank information memoranda, lender and investor presentations, offering documents, offering or private placement memoranda and other similar marketing documents and due diligence efforts for the Debt Financing and (ii) customary authorization and representation letters, each as required in connection with the Debt Financing, authorizing the distribution of information to prospective lenders and containing a representation that the public side of such documents, if any, do not include any information about any Group Company or any securities of any Group Company that would constitute material non-public information within the meaning of the United States federal and state securities laws if any Group Company were a public reporting company, (d) using reasonable best efforts to cause the Company’s independent registered accounting firm to provide customary assistance, including (i) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) in connection with any capital markets transaction comprising a part of the Debt Financing, (ii) providing customary consents to the inclusion of their audit report in respect of any financial statements of the Company and the Company Subsidiaries in any offering documents relating to the Debt Financing and (iii) reasonable assistance and cooperation to Buyer with respect to any auditor due diligence, (e) subject to and conditioned on the occurrence of the Closing, the taking of customary corporate actions reasonably requested by Buyer that are necessary to permit the consummation of and funding of the Debt Financing, ; and
(fvi) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth in any definitive document relating to the Debt Financing to the extent satisfaction of such condition requires the cooperation of, or is within the control of, the Group Companies, (g) delivering to Buyer at least three (3) Business Days prior to the Closing provide all such documentation and other information about the Business Companies as is reasonably requested in writing by Buyer at least ten (10) Business Days prior to the Closing to the extent required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, regulations including the USA PATRIOT Act and the requirements of 31 C.F.R. §1010.230, any applicable beneficial ownership regulations; provided that (hA) facilitating and assisting in the preparation and delivery of any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents relating to the Debt Financing relating to the Group Companies, and their respective businesses to be included in the definitive documents relating to the Debt Financing, and assist such requested cooperation shall not unreasonably interfere with the execution ongoing operations of Parent and delivery of the same, in each case, solely to the extent reasonable its Subsidiaries and customary for financings of such type, (iB) cooperating with internal Parent and external counsel of Buyer in connection with providing customary back-up certificates and factual information regarding any legal opinion that such counsel may its Subsidiaries shall not be required to deliver in connection with the Debt Financing, in each case, solely provide any information pursuant to the extent reasonable and customary for financings of such type, and (jthis Section 5.03(a) obtaining and providing documents to Buyer (including draft payoff letters) relating to the repayment of the Indebtedness and the release of related guarantees and Liens in accordance with the terms of this Agreement. The Company hereby consents, on behalf of itself and the Group Companies, to the use of the logos of the Group Companies in connection with the Debt Financing; provided that such logos are used solely in a manner that is not intended to, nor is reasonably likely to, harm or disparage the Company’s otherwise available to Parent and its Subsidiaries; provided further that in no event shall Parent or any of its Affiliates’ reputation Subsidiaries or goodwill.
8.11.2. Notwithstanding anything in this Agreement to the contrary, (a) no Group Company nor any of their respective Representatives shall be required, under the provisions of this Section 8.11 or otherwise required in connection with the Debt Financingcooperation contemplated by this Section 5.03(a) to bear any cost or expense, to pay any commitment or other similar fee or fee, enter into any binding definitive agreement (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) or commitment or incur any other actual or potential liability or obligation in connection with the Debt Financing prior to the Closing Closing. Further, such assistance shall not include any actions that is not advanced by Buyer, Parent reasonably believes would reasonably be expected to (bx) no Group Company result in the loss of any legal or other applicable privilege or (y) cause Parent or any of its Affiliates or any of their respective Representativesemployees, managersdirectors, officers or employees shall be required managers to execute incur any actual or enter intopotential liability in connection with the arranging, perform marketing or authorize any agreement with respect to syndication of the Debt Financing or such assistance (except, in the case of a Business Company, any such liability after the Closing). Nothing in this agreement shall require any cooperation to the extent that it would require Parent or any of its Subsidiaries or any of their respective employees, directors, officers or managers to (i) pay or agree to pay any commitment or other than fees or pay, incur or reimburse any expenses prior to the Closing Date (except, in each case, to the extent subject to concurrent reimbursement by Buyer), (ii) approve the execution or delivery of any document, certificate, resolution or consent in connection with the authorization letters referred to in clause (c)(ii) of Section 8.11.1) Debt Financing that is not contingent upon the Closing or that would be effective prior to the Closing Date, (ciii) no Representative, manager, officer or employee of any Group Company shall be required to deliver any certificate or take any other action pursuant to this Section 8.11 to the extent any such action would reasonably be expected to result in personal liability to such Representative, manager, officer or employee, (d) no Group Company or their respective Representatives shall be required to take any action that would reasonably be expected, in the reasonable judgment of the Company, to conflict with, violate or result in a breach of or default under any violation or breach of, any applicable Laws, any organizational organization documents of any Group Company, any contract or obligations of confidentiality (not created in contemplation hereof) binding on any Group Company, (e) no Group Company or any of their respective Representatives shall be required to take any action that would cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement, (f) no Group Company or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, the Company has, in its good faith, determined is not true, (g) no Group Companies or their respective Representatives shall be required to provide, and the Buyer will be solely responsible for the preparation of: (1) pro forma financial information; (2) any description of all or any component of the Debt Financing; or (3) projections, risk factors or other forward-looking statements relating to all or any component of the Debt Financing; and (h) no Group Company shall be required to provide access to or disclose information that the Company determines would jeopardize any attorney–client privilege or other similar privilege of the Company Parent or any of its SubsidiariesSubsidiaries or any material Contract, Law or Order. Promptly Buyer shall promptly, upon request by the CompanyParent, Xxxxx will reimburse the Company Parent and its Subsidiaries for any all reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ feesfees and expenses) incurred by the Company, the Company Subsidiaries or any of them and their Representatives in connection with the Debt Financing, including the cooperation of the Company, the Company Subsidiaries and their Representatives contemplated by this Section 8.11. Except in the case of fraud or a breach of this Agreement5.03(a), Buyer and shall indemnify, defend, indemnify and hold harmless the Group Companies Parent and its Subsidiaries and their respective Representatives from and against any and all losses, damages, awards, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecution, investigation, defense or settlement of any of the foregoing) and other amounts losses suffered or incurred by any of them in connection with (i) any action taken by them at the request of Buyer pursuant to this Section 8.11 or in connection with the arrangement of the Debt Financing or (ii) and any information utilized used in connection therewith, and in each case other than to the foregoing obligations shall survive termination of this Agreement and the occurrence of the Closing. In addition, no action, liability or obligation of the Company, extent any of the Company Subsidiaries or foregoing arises from intentional fraud with respect to any of their respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to any Debt Financing (other than the execution representations and warranties of the authorization letters referred to Parent in clause (c)(ii) this Agreement. For purposes of Section 8.11.1) will be effective until the Closing Date. All material, non-public information regarding the Group Companies provided to Buyer or any of its Representatives pursuant to this Section 8.11 shall be kept confidential by them in accordance with the Confidentiality Agreement except for disclosure to potential investors as required in connection with the Debt Financing subject to customary confidentiality protections. Notwithstanding anything to the contrary5.03(a), the Company “Buyer” shall be deemed to have complied with this Section 8.11 for all purposes include any Affiliates of this Agreement (including Article 6 and Article 7) unless the Debt Financing has not been obtained primarily as a result of the Company’s Willful Breach of its obligations under this Section 8.11. Notwithstanding anything herein to the contrary, Xxxxx acknowledges and agrees that obtaining any Debt Financing is not a condition to the ClosingBuyer.
Appears in 2 contracts
Samples: Equity Purchase Agreement (Endeavor Group Holdings, Inc.), Equity Purchase Agreement (Scientific Games Corp)
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (x) provide Seller and the Company with written notice that such Debt Financing has been obtained and (y) deliver (or cause to be delivered) to Seller and the Company true, correct and complete copies of all arrangements pursuant to which any Financing Parties shall have committed to provide any portion of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further that, in no event shall the receipt of such Debt Financing be a condition to Closing and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. Prior to the Closing, subject to Section 8.11.2, the Company Seller shall use reasonable best efforts to, (and cause its Affiliates to use and shall use reasonable best efforts Commercially Reasonable Efforts to cause the Company Subsidiaries and its and their respective Representatives toofficers, agents or representatives thereof to use) Commercially Reasonable Efforts to provide certain assistance to the Buyer in each case at Buyer’s sole expense, provide to Buyer such cooperation reasonably requested by Buyer that is reasonably necessary in arranging, obtaining and syndicating the Debt Financing, if any (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere connection with the operations arrangement of the Group Companies)one or more Financings, including the following:
(i) furnishing the Buyer, as promptly as reasonably practicalpracticable, (a) furnishing Buyer with the Required Financial Information and other pertinent assistance or information regarding the Group Companies as may be reasonably requested by the Buyer for or the completion Financing Source to consummate any Financing, including (A) the Combined Financial Statements and (B) other material financial and operating information regarding the Business, the Business Assets and the Subject Entities (with respect to the Company Joint Venture Entities, to the extent Seller has Legal Right to such information) that has been prepared and is in the possession of the Debt FinancingSeller;
(ii) furnishing the Buyer, (b) participating as promptly as reasonably practicable, with information as may be reasonably requested by the Buyer or the Financing Source in telephonic meetings and otherwise reasonably assisting connection with the preparation of appropriate marketing materials for any Financing;
(iii) cooperating reasonably with any Financing Source’s due diligence, to the extent customary and reasonable, in connection with any Financing;
(iv) obtaining customary comfort letters of independent accountants (including “negative assurance” comfort) as reasonably requested by the Buyer as necessary and customary materials customary presentationsfor financings similar to such Financing; and
(v) obtaining any required consents of the Seller’s and the Company Joint Venture Entities’ independent accountants relating to any Financing. Notwithstanding the foregoing, due diligence sessions (including accounting due diligence sessions) the Seller’s assistance and sessions cooperation shall not include any certifications by the Seller or its Affiliates to any Financing Source or the preparation by the Seller of any material reports not in the Seller’s possession or not customarily prepared by the Seller regarding Business information. The Buyer shall provide the Seller with rating agencies reasonable advance notice of any actions required to be taken by the Seller or its Affiliates in connection with the Debt Financing to the extent reasonable and customary for financings of such type, (c) reasonably assisting in the preparation of (i) customary bank information memoranda, lender and investor presentations, offering documents, offering or private placement memoranda and other similar marketing documents and due diligence efforts for the Debt Financing and (ii) customary authorization and representation letters, each as required in connection with the Debt Financing, authorizing the distribution of information to prospective lenders and containing a representation that the public side of such documents, if any, do not include any information about any Group Company or any securities of any Group Company that would constitute material non-public information within the meaning of the United States federal and state securities laws if any Group Company were a public reporting company, (d) using reasonable best efforts to cause the Company’s independent registered accounting firm to provide customary assistance, including (i) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) in connection with any capital markets transaction comprising a part of the Debt Financing, (ii) providing customary consents to the inclusion of their audit report in respect of any financial statements of the Company and the Company Subsidiaries in any offering documents relating to the Debt Financing and (iii) reasonable assistance and cooperation to Buyer with respect to any auditor due diligence, (e) subject to and conditioned on the occurrence of the Closing, the taking of customary corporate actions reasonably necessary to permit the consummation of and funding of the Debt Financing, (f) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth in any definitive document relating to the Debt Financing to the extent satisfaction arrangement of such condition requires the cooperation of, one or is within the control of, the Group Companies, (g) delivering to Buyer at least three (3) Business Days prior to the Closing all such documentation and information as is reasonably requested in writing by Buyer at least ten (10) Business Days prior to the Closing to the extent required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act and the requirements of 31 C.F.R. §1010.230, (h) facilitating and assisting in the preparation and delivery of any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents relating to the Debt Financing relating to the Group Companies, and their respective businesses to be included in the definitive documents relating to the Debt Financing, and assist with the execution and delivery of the same, in each case, solely to the extent reasonable and customary for financings of such type, (i) cooperating with internal and external counsel of Buyer 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 Debt Financing, in each case, solely to the extent reasonable and customary for financings of such type, and (j) obtaining and providing documents to Buyer (including draft payoff letters) relating to the repayment of the Indebtedness and the release of related guarantees and Liens in accordance with the terms of this Agreement. The Company hereby consents, on behalf of itself and the Group Companies, to the use of the logos of the Group Companies in connection with the Debt Financing; provided that such logos are used solely in a manner that is not intended to, nor is reasonably likely to, harm or disparage the Company’s or any of its Affiliates’ reputation or goodwill.
8.11.2. Notwithstanding anything in this Agreement to the contrary, (a) no Group Company nor any of their respective Representatives shall be required, under the provisions of this Section 8.11 or otherwise in connection with the Debt Financing, to pay any commitment or other similar fee or enter into any binding agreement (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) or commitment or incur any other actual or potential liability or obligation in connection with the Debt Financing prior to the Closing that is not advanced by Buyer, (b) no Group Company or any of their respective Representatives, managers, officers or employees shall be required to execute or enter into, perform or authorize any agreement with respect to the Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) that is not contingent upon the Closing or that would be effective prior to the Closing Date, (c) no Representative, manager, officer or employee of any Group Company shall be required to deliver any certificate or take any other action pursuant to this Section 8.11 to the extent any such action would reasonably be expected to result in personal liability to such Representative, manager, officer or employee, (d) no Group Company or their respective Representatives shall be required to take any action that would reasonably be expected, in the reasonable judgment of the Company, to conflict with, or result in any violation or breach of, any applicable Laws, any organizational documents of any Group Company, any contract or obligations of confidentiality (not created in contemplation hereof) binding on any Group Company, (e) no Group Company or any of their respective Representatives shall be required to take any action that would cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement, (f) no Group Company or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, the Company has, in its good faith, determined is not true, (g) no Group Companies or their respective Representatives shall be required to providemore Financings, and the Seller and its Affiliates shall only be obligated to perform any such actions during normal business hours. The Buyer will be solely responsible for the preparation of: (1) pro forma financial information; (2) any description of all or any component of the Debt Financing; or (3) projections, risk factors or other forward-looking statements relating to all or any component of the Debt Financing; and (h) no Group Company shall be required to provide access to or disclose information that the Company determines would jeopardize any attorney–client privilege or other similar privilege of the Company or any of its Subsidiaries. Promptly upon request by the Company, Xxxxx will promptly reimburse the Company Seller and its Affiliates for any all reasonable and documented costs and expenses (expenses, including reasonable any auditor and attorneys’ fees) fees and expenses, incurred by the Company, the Company Subsidiaries Seller or any of their Representatives in connection with the cooperation of the Company, the Company Subsidiaries and their Representatives contemplated by this Section 8.11. Except in the case of fraud or a breach of this Agreement, Buyer shall indemnify, defend, and hold harmless the Group Companies and its Affiliates to perform their respective Representatives from and against any and all losses, damages, awards, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecution, investigation, defense or settlement of any of obligations pursuant to the foregoing) and other amounts suffered or incurred by them in connection with (i) any action taken by them at the request of Buyer pursuant to this Section 8.11 or in connection with the arrangement of the Debt Financing or (ii) any information utilized in connection therewith, and the foregoing obligations shall survive termination of this Agreement and the occurrence of the Closing. In addition, no action, liability or obligation of the Company, any of the Company Subsidiaries or any of their respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to any Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) will be effective until the Closing Date. All material, non-public information regarding the Group Companies provided to Buyer or any of its Representatives pursuant to this Section 8.11 shall be kept confidential by them in accordance with the Confidentiality Agreement except for disclosure to potential investors as required in connection with the Debt Financing subject to customary confidentiality protections. Notwithstanding anything to the contrary, the Company shall be deemed to have complied with this Section 8.11 for all purposes of this Agreement (including Article 6 and Article 7) unless the Debt Financing has not been obtained primarily as a result of the Company’s Willful Breach of its obligations under this Section 8.11. Notwithstanding anything herein to the contrary, Xxxxx acknowledges and agrees that obtaining any Debt Financing is not a condition to the Closing.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Genesis Energy Lp), Purchase and Sale Agreement
Financing Cooperation. 8.11.1. (a) Prior to the Closing, if requested by Buyer may determineupon reasonable advance notice and so long as such cooperation does not unreasonably interfere with the ongoing operations of the Acquired Companies, Seller shall use its reasonable best efforts and shall cause the Acquired Companies, and their respective Representatives to use their reasonable best efforts, to provide all cooperation and assistance reasonably requested by Buyer to assist Buyer in its sole discretion, connection with Buyer’s efforts to obtain debt financing in connection with the arrangement, syndication, marketing and consummation of any debt financing the proceeds of which are to be used to fund any at the Closing a portion of the Purchase Price or other amounts payable by Buyer pursuant to this Agreement (the “Debt Financing”); provided that , including in connection with the Buyer shallarrangement, promptly after such Debt Financing is obtained (x) provide Seller syndication, marketing and the Company with written notice that such Debt Financing has been obtained and (y) deliver (or cause to be delivered) to Seller and the Company true, correct and complete copies of all arrangements pursuant to which any Financing Parties shall have committed to provide any portion consummation of the Debt Financing; provided that any fee letters . Such actions may be redacted include: (i) arranging for senior management of the Acquired Companies participation in a customary manner; provided further thatreasonable number of meetings with debt financing sources, in no event shall the receipt (ii) making officers and employees reasonably available for a reasonable number of such Debt Financing be a condition to Closing meetings, conference calls, presentations, due diligence sessions, road shows and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement drafting sessions and to perform its obligations hereunder. Prior to assist in the Closing, subject to Section 8.11.2, the Company shall use reasonable best efforts to, and shall use reasonable best efforts to cause the Company Subsidiaries and its and their respective Representatives to, in each case at Buyer’s sole expense, provide to Buyer such cooperation reasonably requested by Buyer that is reasonably necessary in arranging, obtaining and syndicating the Debt Financing, if any (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the operations preparation of the Group Companies), including as promptly as reasonably practicalFinancing Materials, (aiii) furnishing assisting Buyer with the Required Financial Information and other pertinent information regarding the Group Companies as may be reasonably requested by Buyer preparation of definitive financing documents for the completion of the Debt Financing, (biv) participating in telephonic meetings furnishing Buyer, its Affiliates and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies in connection with the Debt Financing to the extent reasonable and customary for financings sources with copies of such typefinancial and operating data customarily required for completion of similar debt financings, including the Financing Statements; provided, that in no event shall Seller, the Acquired Companies, their Affiliates or their respective Representatives be required to provide any pro forma financial statements or projections (v) using their reasonable best efforts to take such actions as are reasonably requested by Buyer to facilitate the satisfaction on a timely basis of all conditions precedent within Seller’s or its Affiliate’s control to obtaining the Debt Financing, (cvi) reasonably assisting in the preparation of (i) customary bank information memoranda, lender and investor presentations, offering documents, offering or private placement memoranda and other similar marketing documents and due diligence efforts for the Debt Financing and (ii) customary authorization and representation letters, each as required requesting its independent accountants to provide reasonable assistance to Buyer in connection with the Debt Financing, authorizing the distribution of information to prospective lenders and containing a representation that the public side of such documents, if any, do not include any information about any Group Company or any securities of any Group Company that would constitute material non-public information within the meaning of the United States federal and state securities laws if any Group Company were a public reporting company, (d) using reasonable best efforts to cause the Company’s independent registered accounting firm to provide customary assistance, including (i) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) in connection with any capital markets transaction comprising a part of the Debt Financing, (ii) providing customary consents to the inclusion of their audit report in respect of any financial statements of the Company and the Company Subsidiaries in any offering documents relating to the Debt Financing and (iiivii) reasonable assistance and cooperation to Buyer with respect to any auditor due diligence, (e) subject to and conditioned on the occurrence of the Closing, the taking of customary all corporate actions reasonably or organizational action necessary to permit the consummation of and funding any debt financing; provided, that the foregoing shall not require the adoption of the Debt Financing, (f) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth in any definitive document relating to the Debt Financing to the extent satisfaction of such condition requires the cooperation of, corporate resolutions or is within the control of, the Group Companies, (g) delivering to Buyer at least three (3) Business Days actions that would be effective prior to the Closing all such documentation and information as is reasonably requested in writing by Buyer at least ten (10) Business Days prior to the Closing to the extent required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act and the requirements of 31 C.F.R. §1010.230, (h) facilitating and assisting in the preparation and delivery of any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents relating to the Debt Financing relating to the Group Companies, and their respective businesses to be included in the definitive documents relating to the Debt Financing, and assist with the execution and delivery of the same, in each case, solely to the extent reasonable and customary for financings of such type, (i) cooperating with internal and external counsel of Buyer 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 Debt Financing, in each case, solely to the extent reasonable and customary for financings of such type, and (j) obtaining and providing documents to Buyer (including draft payoff letters) relating to the repayment of the Indebtedness and the release of related guarantees and Liens in accordance with the terms of this Agreement. The Company hereby consents, on behalf of itself and the Group Companies, to the use of the logos of the Group Companies in connection with the Debt Financing; provided that such logos are used solely in a manner that is not intended to, nor is reasonably likely to, harm or disparage the Company’s or any of its Affiliates’ reputation or goodwill.
8.11.2Date. Notwithstanding anything in this Agreement to the contraryforegoing, (a) no Group Company neither Seller nor any of their respective Affiliates or Representatives (including, until the Closing, the Acquired Companies) shall be requiredrequired to (A) provide such cooperation or assistance that in the good faith judgment of Seller, under (1) unreasonably interferes with the provisions ongoing business or operations of Seller and its Affiliates, including the Acquired Companies (2) cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Section 8.11 Agreement by Seller or otherwise in connection with the Debt FinancingAcquired Companies, (3) be reasonably expected to cause any director, officer or employee of Seller or the Acquired Companies to incur any personal liability, or (4) cause any breach of any applicable law, (B) pay any commitment or other similar fee or enter into any binding agreement (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) or commitment or incur any other actual costs or potential liability or obligation expenses (that are not promptly reimbursed by Buyer) in connection with the Debt Financing any debt financing, (C) incur any material liability or any obligation under any agreement or document in connection with any debt financing, (D) execute prior to the Closing that is not advanced by Buyer, (b) no Group Company or any of their respective Representatives, managers, officers or employees shall be required to execute or enter into, perform or authorize any agreement with respect to the Debt Financing definitive financing documents (other than the execution of the customary authorization letters referred to letters) in clause connection with any debt financing, or (c)(iiE) of Section 8.11.1) that take any corporate or organizational action approving any debt financing which is not contingent upon the Closing or that would be effective prior to the Closing DateClosing.
(b) Buyer shall (i) promptly reimburse Seller and its Affiliates (including the Acquired Companies) for all reasonable, (c) no Representative, manager, officer or employee out of any Group Company shall be required to deliver any certificate or take any other action pursuant to this Section 8.11 to the extent any such action would reasonably be expected to result in personal liability to such Representative, manager, officer or employee, (d) no Group Company or their respective Representatives shall be required to take any action that would reasonably be expected, in the reasonable judgment of the Company, to conflict with, or result in any violation or breach of, any applicable Laws, any organizational documents of any Group Company, any contract or obligations of confidentiality (not created in contemplation hereof) binding on any Group Company, (e) no Group Company or any of their respective Representatives shall be required to take any action that would cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement, (f) no Group Company or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, the Company has, in its good faith, determined is not true, (g) no Group Companies or their respective Representatives shall be required to provide, and the Buyer will be solely responsible for the preparation of: (1) pro forma financial information; (2) any description of all or any component of the Debt Financing; or (3) projections, risk factors or other forward-looking statements relating to all or any component of the Debt Financing; and (h) no Group Company shall be required to provide access to or disclose information that the Company determines would jeopardize any attorney–client privilege or other similar privilege of the Company or any of its Subsidiaries. Promptly upon request by the Company, Xxxxx will reimburse the Company for any reasonable pocket costs and expenses (including reasonable attorneys’ fees) incurred by the Company, the Company Subsidiaries or any of their Representatives them in connection with the such cooperation of the Company, the Company Subsidiaries and their Representatives contemplated by this Section 8.11. Except in the case of fraud or a breach of this Agreement, Buyer shall indemnify, defend, (ii) indemnify and hold harmless Seller, the Group Companies Acquired Companies, and their respective Affiliates and Representatives from and against any and all losses, liabilities, damages, awardsclaims, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, costs or expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecution, investigation, defense or settlement of any of the foregoing) and other amounts suffered or incurred by any of them in connection with (ithe performance of their obligations under Section 7.13(a) any action taken by them at the request of Buyer pursuant to this Section 8.11 or otherwise in connection with the arrangement of the Debt Financing or (ii) any debt financing and any information utilized in connection therewith, and except to the extent that any of the foregoing obligations shall survive termination arise from the bad faith, gross negligence or willful misconduct of, or material breach of this Agreement by, Seller or the Acquired Companies, as applicable. To the extent such costs have been paid in cash by the Acquired Companies prior to the Cut-Off Time and have not been reimbursed prior to the occurrence Cut-Off Time, the amount of the Closing. In addition, no action, liability or obligation of the Company, any of the Company Subsidiaries or any of their respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to any Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) will be effective until the Closing Date. All material, non-public information regarding the Group Companies provided to Buyer or any of its Representatives pursuant to this Section 8.11 such reimbursable costs shall be kept confidential by them in accordance with the Confidentiality Agreement except for disclosure to potential investors as required in connection with the Debt Financing subject to customary confidentiality protections. Notwithstanding anything to the contrarydeducted from Transaction Related Expenses, the Company and Buyer shall be deemed to have complied with this Section 8.11 for all purposes of this Agreement (including Article 6 and Article 7) unless the Debt Financing has not been obtained primarily as a result of the Company’s Willful Breach of satisfied its obligations under this Section 8.11the preceding sentence. Notwithstanding anything herein To the extent paid or reimbursed by Buyer, such amounts shall not be Transaction Related Expenses.
(c) Seller hereby consents to the contraryuse of the Acquired Companies’ logos in connection with any debt financing so long as such logos are used in a manner that is not intended to, Xxxxx nor reasonably likely to, harm or disparage the Acquired Companies; and subject to the prior review by, and consent of, Seller or the Acquired Companies (such consent not to be unreasonably withheld or delayed).
(d) Buyer expressly acknowledges and agrees that obtaining any Debt Financing debt financing, is not a condition to the Closing, and Buyer reaffirms its obligation to consummate the Transactions irrespective and independently of the availability of such debt financing.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Ares Management Corp), Stock Purchase Agreement
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (x) provide Seller and the Company with written notice that such Debt Financing has been obtained and (y) deliver (or cause to be delivered) to Seller and the Company true, correct and complete copies of all arrangements pursuant to which any Financing Parties shall have committed to provide any portion of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further that, in no event shall the receipt of such Debt Financing be a condition to Closing and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. Prior to the Closing, subject to Section 8.11.2, the Company shall use reasonable best efforts toprovide, and shall cause its Subsidiaries to provide, and shall use its commercially reasonable best efforts to cause the Company Subsidiaries and its and their respective Representatives toofficers, in each case at Buyer’s sole expenseemployees and advisors, including legal and accounting, to provide to Buyer such reasonable cooperation reasonably requested by Buyer Parent in connection with the arrangement of any debt or equity financing transaction by Parent in connection with the Merger (the “Financing”) after the date hereof, including using its commercially reasonable efforts to (i) provide financial and other relevant information regarding the Company and its Subsidiaries that is reasonably necessary and cooperate in arrangingthe preparation of pro forma financial information for the Merger (including information to be used in the preparation of an information package, obtaining and syndicating the Debt Financingoffering memorandum, if any (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the operations of the Group Companies)prospectus, including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information and other pertinent information prospectus supplement or similar document regarding the Group Companies as may be business, assets, operations, financial projections and prospects of Parent and the Company customary for such financing or reasonably requested by Buyer necessary for the completion of the Debt Financing, (b) participating in telephonic meetings and otherwise reasonably assisting with as may be required to obtain the preparation of appropriate and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies in connection with the Debt Financing to the extent reasonable and customary for financings of such type, (c) reasonably assisting in the preparation of (i) customary bank information memoranda, lender and investor presentations, offering documents, offering or private placement memoranda and other similar marketing documents and due diligence efforts for the Debt Financing and (ii) customary authorization and representation letters, each as required in connection with the Debt Financing, authorizing the distribution of information to prospective lenders and containing a representation that the public side of such documents, if any, do not include any information about any Group Company or any securities of any Group Company that would constitute material non-public information within the meaning of the United States federal and state securities laws if any Group Company were a public reporting company, (d) using reasonable best efforts to cause the Company’s independent registered accounting firm to provide customary assistance, including (i) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) in connection with any capital markets transaction comprising a part of the Debt Financing, (ii) providing customary consents cooperate with the marketing efforts for the Financing (including consenting to the inclusion of their audit report in respect of any financial statements of the Company and the Company Subsidiaries in any offering documents relating to the Debt Financing and (iii) reasonable assistance and cooperation to Buyer with respect to any auditor due diligence, (e) subject to and conditioned on the occurrence of the Closing, the taking of customary corporate actions reasonably necessary to permit the consummation of and funding of the Debt Financing, (f) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth in any definitive document relating to the Debt Financing to the extent satisfaction of such condition requires the cooperation of, or is within the control of, the Group Companies, (g) delivering to Buyer at least three (3) Business Days prior to the Closing all such documentation and information as is reasonably requested in writing by Buyer at least ten (10) Business Days prior to the Closing to the extent required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act and the requirements of 31 C.F.R. §1010.230, (h) facilitating and assisting in the preparation and delivery of any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents relating to the Debt Financing relating to the Group Companies, and their respective businesses to be included in the definitive documents relating to the Debt Financing, and assist with the execution and delivery of the same, in each case, solely to the extent reasonable and customary for financings of such type, (i) cooperating with internal and external counsel of Buyer 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 Debt Financing, in each case, solely to the extent reasonable and customary for financings of such type, and (j) obtaining and providing documents to Buyer (including draft payoff letters) relating to the repayment of the Indebtedness and the release of related guarantees and Liens in accordance with the terms of this Agreement. The Company hereby consents, on behalf of itself and the Group Companies, to the use of the logos of the Group Companies Company and its Subsidiaries), (iii) participate as appropriate in connection meetings, presentations, road shows, drafting sessions, and sessions with the Debt rating agencies as are reasonably necessary to consummate the Financing; provided that such logos are used solely , (iv) assist Parent and its financing sources in a manner that is not intended to, nor is reasonably likely to, harm the amendment or disparage termination of any of the Company’s or any of its AffiliatesSubsidiaries’ reputation existing credit agreements, currency or goodwill.
8.11.2. Notwithstanding anything interest hedging agreements, or other agreements, in this Agreement each case, on terms satisfactory to the contrary, (a) no Group Company nor any of their respective Representatives shall be required, under the provisions of this Section 8.11 or otherwise Parent and that are reasonably requested by Parent in connection with the Debt Financing, to pay any commitment or other similar fee or enter into any binding agreement (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) or commitment or incur any other actual or potential liability or obligation in connection with the Debt Financing prior to the Closing that is not advanced by Buyer, (b) no Group Company or any of their respective Representatives, managers, officers or employees shall be required to execute or enter into, perform or authorize any agreement with respect to the Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) that is not contingent and conditioned upon the Closing or that would be effective prior to the Closing Date, (c) no Representative, manager, officer or employee of any Group Company shall be required to deliver any certificate or take any other action pursuant to this Section 8.11 to the extent any such action would reasonably be expected to result in personal liability to such Representative, manager, officer or employee, (d) no Group Company or their respective Representatives shall be required to take any action that would reasonably be expected, in the reasonable judgment of the Company, to conflict with, or result in any violation or breach of, any applicable Laws, any organizational documents of any Group Company, any contract or obligations of confidentiality (not created in contemplation hereof) binding on any Group Company, (e) no Group Company or any of their respective Representatives shall be required to take any action that would cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement, (f) no Group Company or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, the Company has, in its good faith, determined is not true, (g) no Group Companies or their respective Representatives shall be required to provide, and the Buyer will be solely responsible for the preparation of: (1) pro forma financial information; (2) any description of all or any component of the Debt Financing; or (3) projections, risk factors or other forward-looking statements relating to all or any component of the Debt Financing; and (h) no Group Company shall be required to provide access to or disclose information that the Company determines would jeopardize any attorney–client privilege or other similar privilege of the Company or any of its Subsidiaries. Promptly upon request by the Company, Xxxxx will reimburse the Company for any reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Company, the Company Subsidiaries or any of their Representatives in connection with the cooperation of the Company, the Company Subsidiaries and their Representatives contemplated by this Section 8.11. Except in the case of fraud or a breach of this Agreement, Buyer shall indemnify, defend, and hold harmless the Group Companies and their respective Representatives from and against any and all losses, damages, awards, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecution, investigation, defense or settlement of any of the foregoing) and other amounts suffered or incurred by them in connection with (i) any action taken by them at the request of Buyer pursuant to this Section 8.11 or in connection with the arrangement of the Debt Financing or (ii) any information utilized in connection therewith, and the foregoing obligations shall survive termination of this Agreement and the occurrence of the Closing. In addition, no action, liability or obligation of the Company, any of in each case it being understood and agreed that information and documents provided by the Company and its Subsidiaries or any of may be delivered to agents and lenders and their respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to any Debt Financing representatives and (other than the execution of the authorization letters referred to in clause (c)(iiv) of Section 8.11.1) will be effective until the Closing Date. All material, non-public information regarding the Group Companies provided to Buyer or any of its Representatives pursuant to this Section 8.11 shall be kept confidential by them in accordance with the Confidentiality Agreement except for disclosure to potential investors as required in connection with the Debt Financing subject to customary the appropriate confidentiality protections. Notwithstanding anything to the contraryundertakings, the Company shall be deemed to have complied cooperate reasonably with this Section 8.11 for all purposes of this Agreement (including Article 6 and Article 7) unless the Debt Financing has not been obtained primarily Parent’s financing sources’ or underwriters’, as a result of the Company’s Willful Breach of its obligations under this Section 8.11. Notwithstanding anything herein to the contraryapplicable, Xxxxx acknowledges and agrees that obtaining any Debt Financing is not a condition to the Closingdue diligence.
Appears in 2 contracts
Samples: Merger Agreement (Caterpillar Inc), Merger Agreement (Bucyrus International Inc)
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (xa) provide Seller and the Company with written notice that such Debt Financing has been obtained and (y) deliver (or cause to be delivered) to Seller and the Company true, correct and complete copies of all arrangements pursuant to which any Financing Parties shall have committed to provide any portion of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further that, in no event shall the receipt of such Debt Financing be a condition to Closing and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. Prior to the Closing, Closing Date and subject to Section 8.11.26.14(c), the Company shall use reasonable best efforts toprovide, and shall use reasonable best efforts to cause the its Company Subsidiaries and its and their respective Representatives toto provide, in each case at Buyer’s sole expenseon a timely basis, provide to Buyer such Parent all cooperation reasonably requested by Buyer Parent that is reasonably necessary in arranging, obtaining and syndicating the Debt Financing, if any (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the operations of the Group Companies), including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies as may be reasonably requested by Buyer for the completion of the Debt Financing, (b) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies in connection with the Debt Financing to the extent reasonable and customary for financings of such type, (c) reasonably assisting in the preparation of (i) customary bank information memoranda, lender and investor presentations, offering documents, offering or private placement memoranda and other similar marketing documents and due diligence efforts for the Debt Financing and (ii) customary authorization and representation letters, each as required in connection with the Debt Financing, authorizing including the distribution New Notes (as defined in the Debt Commitment Letter), or any replacement, amended, modified or alternative financing elected by Parent and including any financing to refinance (at Parent’s option) the Notes (collectively with the Debt Financing, the “Available Financing”). Without limiting the generality of the foregoing, such cooperation and reasonable best efforts for purposes of this Section 6.14(a) in any event shall include to: (i) provide Parent and the Financing Sources and their respective agents with (A) the financial statements and other financial information regarding the Company and the Company Subsidiaries identified in clauses (A) and (B) of clause (iv) (notwithstanding the provisos of clause (iv)) of Exhibit D of the Debt Commitment Letter (as in effect on the date hereof) and (B) such financial information related to prospective lenders the Company and containing a representation its Subsidiaries as is reasonably required by Parent for Parent to produce the pro forma financial statements identified in clause (C) of clause (iv) (notwithstanding the provisos of clause (iv)) of Exhibit D of the Debt Commitment Letter as of the date hereof (or any similar pro forma financial statements required in connection with any Available Financing) and specified in writing by Parent to the Company; provided that the public side Company and the Company Subsidiaries shall have no obligation to prepare or provide any pro forma financial statements or projections (all information required to be delivered pursuant to this clause (i) being referred to as the “Required Information”); (ii) participate (including by making members of such documentssenior management with appropriate seniority and expertise, if anyreasonably available to participate alongside senior management of Parent) in customary syndication and marketing activities, do not include including sessions with the ratings agencies, in connection with the Available Financing; (iii) reasonably cooperate with the Financing Sources’ and their respective agents’ customary due diligence; (iv) reasonably cooperate with the marketing efforts for any information about any Group Company or any securities of any Group Company that would constitute material non-public information within the meaning portion of the United States federal and state securities laws if any Group Company were a public reporting companyAvailable Financing, (d) including using its reasonable best efforts to cause assist the financing sources in involving the Company’s existing lending and investment banking relationships in any syndication efforts in connection with the Available Financing; (v) assisting Parent in Parent’s preparation of customary bank information memoranda, lender presentations, offering memoranda, private placement memoranda (including under Rule 144A and/or Regulation S under the Securities Act), registration statements, prospectuses and prospectus supplements under the Securities Act and other materials in connection with a syndicated bank financing, securities offering or other debt offering in connection with such Available Financing to the extent relating to the Company and the Company Subsidiaries; (vi) assist Parent with Parent’s preparation of pro forma financial statements and pro forma financial information; (vii) instruct its certified independent registered accounting firm auditors to provide customary assistance(x) consent to use of their reports in any materials relating to the Available Financing, including SEC filings and offering memoranda that include or incorporate the Company’s consolidated financial information and their reports thereon in accordance with normal customary practice and (iy) providing customary auditors reports and comfort letters (including “negative assurance assurances” comfort” and “change period comfort”) in connection with any capital markets transaction comprising a part of the Debt Financing, (ii) providing customary consents respect to the inclusion of their audit report in respect of any financial statements of information relating to the Company and the Company Subsidiaries in any offering customary form; (viii) use reasonable best efforts to provide (including using reasonable best efforts to obtain such documents relating to from its advisors) customary certificates and other customary closing documents as may be reasonably requested by Parent or the Debt Financing and Sources; (iiiix) reasonable assistance and cooperation to Buyer with respect to any auditor due diligence, (e) subject to and conditioned on the occurrence of the Closing, cause the taking of customary corporate actions within the control of the Company reasonably necessary to permit the consummation of and funding completion of the Debt Available Financing, ; (fx) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth in any definitive document relating to the Debt Financing to the extent satisfaction necessary, use reasonable best efforts to facilitate the pledging of collateral and executing and delivering pledge and security documents (and any other documents or instruments required for the creation and perfection of security interests in the collateral securing the Available Financing) or other definitive financing documents reasonably requested by Parent or the Financing Sources (including guarantees and other deliverables), provided, however, that no obligation of the Company or any of the Company Subsidiaries under any such condition requires agreement or instrument under this clause (x) shall be effective until the cooperation of, or Closing Date; (xi) so long as such information is within the control of, the Group Companies, (g) delivering to Buyer reasonably requested by Parent at least three 10 Business Days prior to the Closing Date, use reasonable best efforts to provide, at least five (35) Business Days prior to the Closing Date, to the Financing Sources all such documentation and other information as is with respect to the Company and the Company Subsidiaries and reasonably requested in writing by Buyer at least ten (10) Business Days prior to the Closing to the extent such Financing Sources that such Financing Sources reasonably determine is required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act and the requirements of 31 C.F.R. §1010.230, (hxii) facilitating and assisting in the preparation and delivery of any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents relating provide to the Debt Financing relating to the Group CompaniesParent such pertinent information reasonably requested by Parent, and their respective businesses update such information, describing the Company or its Subsidiaries to be included used in the definitive documents relating to the Debt Financing, and assist marketing or offering materials prepared in accordance with the execution and delivery of the same, in each case, solely to the extent reasonable and normal customary for financings of such type, (i) cooperating with internal and external counsel of Buyer in connection with providing customary back-up certificates and factual information regarding any legal opinion that such counsel may be required to deliver practice in connection with the Debt FinancingAvailable Financing such that, after giving effect to such updates, (A) such information, when taken as a whole along with the Company Reports filed by the Company since January 1, 2014 through such date, does not contain as of the time provided, any untrue statement of material fact or omit to state any material fact necessary in each case, solely order to make the statements contained therein not materially misleading in light of the circumstances under which such statements were made and (B) the financial statements and other financial information included in such updated information and the Required Information are sufficiently current pursuant to Rule 3-12 under Regulation S-X to the extent reasonable applicable and permit the Company’s independent auditors to issue a customary for financings of such typecomfort letter, and including customary “negative assurance” comfort (j) obtaining and providing documents to Buyer (including draft payoff letters) relating to the repayment of the Indebtedness and the release of related guarantees and Liens in accordance with the terms of this Agreement. The Company hereby consents, on behalf of itself normal practices and the Group Companies, to the use of the logos of the Group Companies in connection with the Debt Financing; provided that such logos are used solely in a manner that is not intended to, nor is reasonably likely to, harm or disparage the Company’s or any of its Affiliates’ reputation or goodwillprocedures).
8.11.2. Notwithstanding anything in this Agreement to the contrary, (a) no Group Company nor any of their respective Representatives shall be required, under the provisions of this Section 8.11 or otherwise in connection with the Debt Financing, to pay any commitment or other similar fee or enter into any binding agreement (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) or commitment or incur any other actual or potential liability or obligation in connection with the Debt Financing prior to the Closing that is not advanced by Buyer, (b) no Group Company or any of their respective RepresentativesParent shall promptly, managers, officers or employees shall be required to execute or enter into, perform or authorize any agreement with respect to the Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) that is not contingent upon the Closing or that would be effective prior to the Closing Date, (c) no Representative, manager, officer or employee of any Group Company shall be required to deliver any certificate or take any other action pursuant to this Section 8.11 to the extent any such action would reasonably be expected to result in personal liability to such Representative, manager, officer or employee, (d) no Group Company or their respective Representatives shall be required to take any action that would reasonably be expected, in the reasonable judgment of the Company, to conflict with, or result in any violation or breach of, any applicable Laws, any organizational documents of any Group Company, any contract or obligations of confidentiality (not created in contemplation hereof) binding on any Group Company, (e) no Group Company or any of their respective Representatives shall be required to take any action that would cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement, (f) no Group Company or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, the Company has, in its good faith, determined is not true, (g) no Group Companies or their respective Representatives shall be required to provide, and the Buyer will be solely responsible for the preparation of: (1) pro forma financial information; (2) any description of all or any component of the Debt Financing; or (3) projections, risk factors or other forward-looking statements relating to all or any component of the Debt Financing; and (h) no Group Company shall be required to provide access to or disclose information that the Company determines would jeopardize any attorney–client privilege or other similar privilege of the Company or any of its Subsidiaries. Promptly upon request by the Company, Xxxxx will reimburse the Company, the Company Subsidiaries and each of their Affiliates, as applicable, for any reasonable all out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred by the Company, the Company Subsidiaries or any of their Representatives Affiliates, as applicable, in connection with the cooperation of the Company, the Company Subsidiaries and any of their Representatives Affiliates, as applicable, contemplated by this Section 8.116.14. Except in the case of fraud or a breach of this Agreement, Buyer Parent shall indemnify, defend, indemnify and hold harmless the Group Companies Company, the Company Subsidiaries and their respective Representatives Affiliates (and its and their Representatives) from and against any and all losses, damages, awardsclaims, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, costs or expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecution, investigation, defense or settlement of any of the foregoing) and other amounts suffered or incurred by any of them in connection with (i) any action taken by them at the request of Buyer pursuant to this Section 8.11 or in connection with the arrangement of the Debt Financing or (ii) Available Financing and any information utilized used in connection therewith, in each case except to the extent such losses, damages, claims, costs or expenses arise from (i) historical information provided by the Company or any Company Subsidiary or (ii) the bad faith or willful misconduct of the Company or any Company Subsidiary, as finally determined by a court of competent jurisdiction.
(c) Notwithstanding anything in this Agreement to the contrary, neither the Company nor any of the Company Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 6.14 that would (i) unreasonably interfere with the business or ongoing operations of the Company and the foregoing obligations shall survive termination Company Subsidiaries, (ii) in connection with any Available Financing other than the Debt Financing contemplated by the Debt Commitment Letter (including, for the avoidance of this Agreement doubt, the New Notes (as defined in the Debt Commitment Letter)) as in effect on the date hereof and referenced in Section 5.14, impose on the occurrence of the Closing. In addition, no action, liability Company or obligation of the Company, any of the Company Subsidiaries or any of its and their respective Representatives pursuant officers, directors, employees, accountants, consultants, legal counsel, agents and other Representatives, any meaningfully greater burden, obligation, time commitment or other commitment than those that had already been (or would have been) imposed on them in the context of the Debt Financing contemplated by the Debt Commitment Letter as in effect on the date hereof and referenced in Section 5.14, (iii) cause any representation or warranty in this Agreement to be breached by the Company or any certificateof the Company Subsidiaries, (iv) require the Company or any of the Company Subsidiaries to pay any commitment or other similar fee or incur any other expense, liability or obligation in connection with the Available Financing prior to the Closing or have any obligation of the Company under any agreement, arrangementcertificate, document or instrument relating to any Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) will be effective until the Closing DateClosing, (v) cause any director, officer or employee or stockholder of the Company or any of the Company Subsidiaries to incur any personal liability, (vi) conflict with the organizational documents of the Company or any of the Company Subsidiaries or any Laws, (vii) 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 contract to which the Company or any of the Company Subsidiaries is a party, (viii) provide access to or disclose information that the Company or any of the Company Subsidiaries determines would jeopardize any attorney–client privilege of the Company or any of the Company Subsidiaries, (ix) prepare separate financial statements for any Subsidiary of the Company or change any fiscal period or (x) authorize any corporate action of the Company or any of the Company Subsidiaries that would become effective prior to the Closing.
(d) Parent acknowledges and agrees that, other than out-of-pocket costs and expenses subject to reimbursement pursuant to this Section 6.14, neither the Company nor any of the Company 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 6.14; provided, however, that this Section 6.14(d) is not intended to override or mitigate the Company’s obligations under this Agreement, including without limitation, Section 6.14(a). All material, non-public or otherwise confidential information regarding the Group Companies provided to Buyer Company or any of the Company Subsidiaries obtained by Parent or its Representatives pursuant to this Section 8.11 6.14 shall be kept confidential by them in accordance with the Confidentiality Agreement except for disclosure to potential investors as required in connection with the Debt Financing subject to customary confidentiality protections. Notwithstanding anything to the contrary, the Company shall be deemed to have complied with this Section 8.11 for all purposes of this Agreement (including Article 6 and Article 7) unless the Debt Financing has not been obtained primarily as a result of the Company’s Willful Breach of its obligations under this Section 8.11. Notwithstanding anything herein to the contrary, Xxxxx acknowledges and agrees that obtaining any Debt Financing is not a condition to the ClosingAgreement.
Appears in 2 contracts
Samples: Merger Agreement (Sungard Capital Corp Ii), Merger Agreement (Fidelity National Information Services, Inc.)
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (xa) provide Seller and the Company with written notice that such Debt Financing has been obtained and (y) deliver (or cause to be delivered) to Seller and the Company true, correct and complete copies of all arrangements pursuant to which any Financing Parties shall have committed to provide any portion of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further that, in no event shall the receipt of such Debt Financing be a condition to Closing and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. Prior to the Closing, subject to Section 8.11.2, the Company Seller shall use reasonable best efforts toCommercially Reasonable Efforts to provide to Buyer, and shall use reasonable best efforts to cause the Company Subsidiaries and its and their respective Representatives to, in each case at Buyer’s sole cost and expense, provide to Buyer such cooperation reasonably requested by Buyer that is reasonably necessary in arranging, obtaining and syndicating the Debt Financing, if any (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the operations of the Group Companies), including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies as may be reasonably requested by Buyer for the completion of the Debt Financing, (b) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies in connection with the Debt Financing Financing, including using Commercially Reasonable Efforts to furnish Buyer with the extent reasonable and customary for financings of such typeFinancial Statements, (c) reasonably assisting assist Buyer in the preparation of (iA) customary any bank information memoranda, lender and investor presentations, offering documents, offering or private placement memoranda and other similar (including the delivery of customary representation letters to the extent required by marketing documents and due diligence efforts (B) materials for the Debt Financing and (ii) customary authorization and representation lettersrating agency presentations, each as required in connection with the Debt Financing, authorizing reasonably cooperating with the distribution marketing efforts of information Buyer and the Debt Financing Sources to prospective lenders the extent required in connection with the Debt Financing and containing solely with respect to the Acquired Assets, assist Buyer in connection with the preparation of any pledge and security agreements required in connection with the Debt Financing for the granting of a representation security interest (and perfection thereof) in collateral (provided that (A) none of the public side of such agreements, documents, if anyinstruments or certificates shall be executed or delivered except in connection with the Closing, do not include any information about any Group Company (B) the effectiveness thereof shall be conditioned upon, or any securities of any Group Company that would constitute material non-public information within become operative after, the meaning occurrence of the United States federal Closing and state securities laws if any Group Company were a public reporting company(C) no liability shall be imposed on Seller or officers or employees involved). Seller shall use Commercially Reasonable Efforts to effect such steps as are necessary (as reasonably requested by Buyer) to ensure that, (d) using reasonable best efforts to cause the Company’s independent registered accounting firm to provide customary assistance, including (i) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) in connection with any capital markets transaction comprising a part of the Debt Financing, all break fees (including swap break fees) that may be triggered by such Debt Financing involving existing lenders to Seller are minimized to the extent possible.
(b) Notwithstanding Section 6.19(a), (i) such requested cooperation shall not unreasonably interfere with the ongoing business and operations of Seller or any of their Affiliates, (ii) providing customary consents to the inclusion none of Seller, any of their audit report in respect respective Affiliates nor any of any financial statements of the Company and the Company Subsidiaries in any offering documents relating to the Debt Financing and (iii) reasonable assistance and cooperation to Buyer with respect to any auditor due diligence, (e) subject to and conditioned on the occurrence of the Closing, the taking of customary corporate actions reasonably necessary to permit the consummation of and funding of the Debt Financing, (f) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth in any definitive document relating to the Debt Financing to the extent satisfaction of such condition requires the cooperation of, or is within the control of, the Group Companies, (g) delivering to Buyer at least three (3) Business Days prior to the Closing all such documentation and information as is reasonably requested in writing by Buyer at least ten (10) Business Days prior to the Closing to the extent required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act and the requirements of 31 C.F.R. §1010.230, (h) facilitating and assisting in the preparation and delivery of any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents relating to the Debt Financing relating to the Group Companies, and their respective businesses to be included in the definitive documents relating to the Debt Financingofficers, directors, employees, accountants, consultants, legal counsel, agents, investment bankers and assist with the execution and delivery of the same, in each case, solely to the extent reasonable and customary for financings of such type, (i) cooperating with internal and external counsel of Buyer in connection with providing customary back-up certificates and factual information regarding any legal opinion that such counsel may other representatives shall be required to deliver bear any cost or expense, pay any commitment or other fee or incur any other liability or obligation or agree to provide any indemnity in connection with the Debt Financing, in each case, solely to the extent reasonable and customary for financings (iii) none of such type, and (j) obtaining and providing documents to Buyer (including draft payoff letters) relating to the repayment of the Indebtedness and the release of related guarantees and Liens in accordance with the terms of this Agreement. The Company hereby consents, on behalf of itself and the Group Companies, to the use of the logos of the Group Companies in connection with the Debt Financing; provided that such logos are used solely in a manner that is not intended to, nor is reasonably likely to, harm or disparage the Company’s Seller or any of its Affiliates’ reputation Affiliates or goodwill.
8.11.2. Notwithstanding anything in this Agreement to the contrary, (a) no Group Company nor any of their respective Representatives shall be requiredofficers, under the provisions of this Section 8.11 or otherwise in connection with the Debt Financing, to pay any commitment or other similar fee or enter into any binding agreement (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) or commitment or incur any other actual or potential liability or obligation in connection with the Debt Financing prior to the Closing that is not advanced by Buyer, (b) no Group Company or any of their respective Representatives, managers, officers directors or employees shall be required to execute or enter intointo or perform any agreement, perform document or instrument, deliver any certificate or opinion or take any corporate or other organizational action (including the adoption of any resolutions) to authorize the execution, entering into or performance of any agreement such agreement, document or instrument, in either case, with respect to the Debt Financing Financing, (iv) such assistance shall not include any actions that Seller reasonably believes would cause any representation, warranty, covenant or other than the execution of the authorization letters referred obligation in this Agreement to in clause (c)(ii) of Section 8.11.1) that is not contingent upon be breached or any condition to the Closing hereunder to fail to be satisfied, (v) such assistance shall not require the giving of representations or that would be effective warranties to any third parties or the indemnification thereof, (vi) such assistance shall not 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 Datefor which Seller has not received prior reimbursement or is not otherwise indemnified by Buyer, (cvii) no Representative, managersuch assistance shall not cause any director, officer or employee of Seller to incur any Group Company personal liability, (viii) such assistance shall be required to deliver not require delivery of any certificate legal opinions or take accountants’ cold comfort letters or reliance letters and (ix) such assistance shall not conflict with or violate any other action pursuant to this Section 8.11 to Laws or Seller’s Organizational Documents or result in the extent any such action contravention of, or that would reasonably be expected to result in personal liability to such Representative, manager, officer or employee, (d) no Group Company or their respective Representatives shall be required to take any action that would reasonably be expected, in the reasonable judgment of the Company, to conflict with, or result in any violation or breach of, any applicable Lawsor a default under, any organizational documents of Contract (including any Group Company, any contract or obligations of confidentiality agreement) to which a Seller is a party.
(not created in contemplation hereofc) binding on any Group Company, (e) no Group Company or To the extent that this Section 6.19 requires Seller’s cooperation with respect to any of their respective Representatives shall be required Buyer’s obligations relating to take any action that would cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement, (f) no Group Company or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, the Company has, in its good faith, determined is not true, (g) no Group Companies or their respective Representatives shall be required to provide, and the Buyer will be solely responsible for the preparation of: (1) pro forma financial information; (2) any description of all or any component of the Debt Financing; , the existence of any alternative financing shall not operate to increase Seller’s obligations under this Section 6.19 for purposes of Article 7 or (3) projections, risk factors or other forward-looking statements relating Article 8 of this Agreement if Seller has provided Buyer with the assistance required under this Section 6.19 with respect to all or any component of the Debt Financing; and , in each case without giving effect to any such alternative financing.
(hd) no Group Company shall be required Notwithstanding anything herein to provide access to or disclose information that the Company determines would jeopardize any attorney–client privilege or other similar privilege of the Company or any of its Subsidiaries. Promptly upon request by the Company, Xxxxx will reimburse the Company for any reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Company, the Company Subsidiaries or any of their Representatives in connection with the cooperation of the Company, the Company Subsidiaries and their Representatives contemplated by this Section 8.11. Except in the case of fraud or a breach of this Agreementcontrary, Buyer shall indemnify, defend, indemnify and hold harmless the Group Companies Seller, Seller’s Affiliates and their respective Representatives directors, officers, employees, accountants, consultants, legal counsel, agents, investment bankers and other representatives from and against any and all losses, damages, awards, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecution, investigation, defense or settlement of any of the foregoing) and other amounts Losses suffered or incurred by them in connection with (i) any action taken by them at the request of Buyer pursuant to this Section 8.11 or in connection with the arrangement of the Debt Financing or and the performance of their respective obligations under this Section 6.19 (iiincluding any action taken in accordance with this Section 6.19) and any information utilized in connection therewith. Buyer shall, promptly upon request by Seller, reimburse Seller for all reasonable out-of-pocket costs and the foregoing obligations shall survive termination of this Agreement and the occurrence of the Closing. In addition, no action, liability expenses incurred by Seller or obligation of the Company, any of the Company Subsidiaries or any of their respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to any Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) will be effective until the Closing Date. All material, non-public information regarding the Group Companies provided to Buyer or any of its Representatives pursuant to this Section 8.11 shall be kept confidential by them in accordance with the Confidentiality Agreement except for disclosure to potential investors as required Affiliates in connection with the Debt Financing subject to customary confidentiality protections. Notwithstanding anything to the contrary, the Company shall be deemed to have complied with this Section 8.11 for all purposes of this Agreement 6.19 (including Article 6 and Article 7) unless the Debt Financing has not been obtained primarily as a result of the Company’s Willful Breach those of its obligations under this Section 8.11. Notwithstanding anything herein to the contraryaccountants, Xxxxx acknowledges consultants, legal counsel, agents, investment bankers and agrees that obtaining any Debt Financing is not a condition to the Closingother representatives).
Appears in 1 contract
Samples: Purchase and Sale Agreement (NextEra Energy Partners, LP)
Financing Cooperation. 8.11.1. Buyer may determineUpon the request of IRT, in its the Seller Parties shall use their commercially reasonable efforts, at IRT’s sole discretioncost and expense, to obtain debt financing provide such cooperation as may be reasonably requested by IRT in connection with its efforts to fund any portion of consummate the Purchase Price (the “Debt Financing”)IRT Equity Offering; provided that the Buyer shall, promptly after such Debt Financing is obtained (x) provide Seller and the Company with written notice that such Debt Financing has been obtained and (y) deliver (or cause to be delivered) to Seller and the Company true, correct and complete copies of all arrangements pursuant to which any Financing Parties shall have committed to provide any portion of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further that, in no event shall the receipt of such Debt Financing be a condition to Closing and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. Prior to the Closing, subject to Section 8.11.2, the Company shall use reasonable best efforts to, and shall use reasonable best efforts to cause the Company Subsidiaries and its and their respective Representatives to, in each case at Buyer’s sole expense, provide to Buyer such cooperation reasonably requested by Buyer that is reasonably necessary in arranging, obtaining and syndicating the Debt Financing, if any (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the ongoing operations of the Group Companies)Seller Parties. Such commercially reasonable efforts shall include, including to the extent reasonably requested by IRT, (a) making available to IRT appropriate personnel of the Seller Parties, (b) providing, as promptly as reasonably practicalpracticable, (a) furnishing Buyer with information relating to the Required Financial Information Business and other pertinent information regarding the Group Companies as may be Advisor to the extent reasonably requested by Buyer IRT to assist in preparation of customary offering or information documents to be used for the completion of the Debt FinancingIRT Equity Offering, (b) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies in connection with the Debt Financing to the extent reasonable and customary for financings of such type, (c) reasonably assisting IRT in the preparation of (i) customary bank information memoranda, lender and investor presentations, offering documents, offering or private placement memoranda and other similar marketing documents and due diligence efforts for the Debt Financing and (ii) customary authorization and representation letters, each as required in connection with the Debt Financing, authorizing the distribution of information to prospective lenders and containing a representation that the public side of such documents, if any, do not include any information about any Group Company or any securities of any Group Company that would constitute material non-public information within the meaning of the United States federal and state securities laws if any Group Company were a public reporting company, (d) using reasonable best efforts to cause the Company’s independent registered accounting firm to provide customary assistance, including (i) providing obtaining customary comfort letters (and consents of the independent accountants of the Seller Parties, including “negative assurance comfort” and “change period comfort”) with respect to the auditor consents in connection with any capital markets transaction comprising a part of the Debt Financing, (ii) providing customary consents to the inclusion of their audit report in respect of any financial statements of the Company and the Company Subsidiaries in any offering documents relating to the Debt Financing and (iii) reasonable assistance and cooperation to Buyer with respect to any auditor due diligence, (e) subject to and conditioned on the occurrence of the Closing, the taking of customary corporate actions reasonably necessary to permit the consummation of and funding of the Debt Financing, (f) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth in any definitive document relating to the Debt Financing to the extent satisfaction of such condition requires the cooperation of, or is within the control of, the Group Companies, (g) delivering to Buyer at least three (3) Business Days prior to the Closing all such documentation and information as is reasonably requested in writing by Buyer at least ten (10) Business Days prior to the Closing to the extent required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act and the requirements of 31 C.F.R. §1010.230, (h) facilitating and assisting in the preparation and delivery of any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents relating to the Debt Financing relating to the Group Companies, and their respective businesses to be included in the definitive documents relating to the Debt Financing, and assist filings with the execution U.S. Securities and delivery of the sameExchange Commission. IRT shall promptly, in each case, solely to the extent reasonable and customary for financings of such type, (i) cooperating with internal and external counsel of Buyer 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 Debt Financing, in each case, solely to the extent reasonable and customary for financings of such type, and (j) obtaining and providing documents to Buyer (including draft payoff letters) relating to the repayment of the Indebtedness and the release of related guarantees and Liens in accordance with the terms of this Agreement. The Company hereby consents, on behalf of itself and the Group Companies, to the use of the logos of the Group Companies in connection with the Debt Financing; provided that such logos are used solely in a manner that is not intended to, nor is reasonably likely to, harm or disparage the Company’s or any of its Affiliates’ reputation or goodwill.
8.11.2. Notwithstanding anything in this Agreement to the contrary, (a) no Group Company nor any of their respective Representatives shall be required, under the provisions of this Section 8.11 or otherwise in connection with the Debt Financing, to pay any commitment or other similar fee or enter into any binding agreement (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) or commitment or incur any other actual or potential liability or obligation in connection with the Debt Financing prior to the Closing that is not advanced by Buyer, (b) no Group Company or any of their respective Representatives, managers, officers or employees shall be required to execute or enter into, perform or authorize any agreement with respect to the Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) that is not contingent upon the Closing or that would be effective prior to the Closing Date, (c) no Representative, manager, officer or employee of any Group Company shall be required to deliver any certificate or take any other action pursuant to this Section 8.11 to the extent any such action would reasonably be expected to result in personal liability to such Representative, manager, officer or employee, (d) no Group Company or their respective Representatives shall be required to take any action that would reasonably be expected, in the reasonable judgment of the Company, to conflict with, or result in any violation or breach of, any applicable Laws, any organizational documents of any Group Company, any contract or obligations of confidentiality (not created in contemplation hereof) binding on any Group Company, (e) no Group Company or any of their respective Representatives shall be required to take any action that would cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement, (f) no Group Company or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, the Company has, in its good faith, determined is not true, (g) no Group Companies or their respective Representatives shall be required to provide, and the Buyer will be solely responsible for the preparation of: (1) pro forma financial information; (2) any description of all or any component of the Debt Financing; or (3) projections, risk factors or other forward-looking statements relating to all or any component of the Debt Financing; and (h) no Group Company shall be required to provide access to or disclose information that the Company determines would jeopardize any attorney–client privilege or other similar privilege of the Company or any of its Subsidiaries. Promptly upon request by the CompanySeller Parties, Xxxxx will reimburse the Company Seller Parties for any all reasonable and documented out of pocket costs and expenses (including reasonable attorneys’ fees) incurred by the Company, the Company Subsidiaries Seller Parties or any of their respective Representatives in connection with the cooperation of the Companytheir respective obligations pursuant to, the Company Subsidiaries and their Representatives contemplated by in accordance with, this Section 8.11. Except in the case of fraud or a breach of this Agreement6.09, Buyer and shall indemnify, defend, indemnify and hold harmless the Group Companies Seller Parties, the Advisor and their respective Affiliates and their respective Representatives from and against any and all losses, damages, awards, fines, penalties, expenses, feeslosses, costs, actions, demands, judgment, Taxes, fines, fees, liabilities or expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecution, investigation, defense or settlement of any of the foregoing) and other amounts suffered or incurred by any of them in connection with (i) the consummation of the IRT Equity Offering and any action taken by them at the request of Buyer pursuant to this Section 8.11 or information used in connection with therewith (other than information provided by the arrangement of Seller Parties, the Debt Financing or (ii) any information utilized in connection therewith, and the foregoing obligations shall survive termination of this Agreement and the occurrence of the Closing. In addition, no action, liability or obligation of the Company, any of the Company Subsidiaries Advisor or any of their respective Representatives pursuant to any certificateAffiliates) and all other actions taken by the Seller Parties, agreement, arrangement, document or instrument relating to any Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) will be effective until the Closing Date. All material, non-public information regarding the Group Companies provided to Buyer or any of its Advisor and their respective Affiliates and their respective Representatives pursuant to this Section 8.11 shall be kept confidential by them in accordance with the Confidentiality Agreement except for disclosure to potential investors as required in connection with the Debt Financing subject to customary confidentiality protections. Notwithstanding anything to the contrary, the Company shall be deemed to have complied with this Section 8.11 for all purposes of this Agreement (including Article 6 and Article 7) unless the Debt Financing has not been obtained primarily as a result of the Company’s Willful Breach of its obligations under this Section 8.11. Notwithstanding anything herein to the contrary, Xxxxx acknowledges and agrees that obtaining any Debt Financing is not a condition to the Closing6.09.
Appears in 1 contract
Samples: Securities and Asset Purchase Agreement (Independence Realty Trust, Inc)
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (x) provide Seller and the The Company with written notice that such Debt Financing has been obtained and (y) deliver (or cause to be delivered) to Seller and the Company true, correct and complete copies of all arrangements pursuant to which any Financing Parties shall have committed agrees to provide any portion of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further that, in no event shall the receipt of such Debt Financing be a condition to Closing assistance (and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. Prior to the Closing, subject to Section 8.11.2, the Company shall use reasonable best efforts to, and shall use reasonable best efforts to cause the Company CHUHC Subsidiaries and its and their respective Representatives to, in each case at Buyer’s sole expense, personnel and advisors to provide to Buyer such cooperation assistance) with the Debt Financing as is reasonably requested by Buyer that is reasonably necessary in arrangingPurchaser. Such assistance shall include, obtaining but not be limited to, the following: (a) participation in, and syndicating assistance with, the Marketing Efforts related to the Debt Financing, if any ; (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the operations b) participation by senior management of the Group Companies)Company in, including as promptly as reasonably practicaland assistance with, the preparation of rating agency presentations and meetings with rating agencies; (ac) furnishing Buyer with timely delivery to Purchaser and the Required Financial Financing Sources of the Financing Information and other pertinent information regarding Financing Deliverables; (d) participation by senior management of the Group Companies Company in the negotiation of, and the execution and delivery of, the Debt Financing Documents; (v) taking such actions as are reasonably requested by Purchaser or the Financing Sources to facilitate the satisfaction on a timely basis of all conditions precedent to obtaining the Debt Financing; (vi) taking all actions as may be required or reasonably requested by Buyer for Purchaser or the completion of the Debt Financing, (b) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies Financing Sources in connection with the Debt Financing repayment of the Company’s existing debt; (vii) using commercially reasonable efforts to the extent reasonable and customary for financings of such type, (c) reasonably assisting in the preparation of (i) customary bank information memoranda, lender and investor presentations, offering documents, offering or private placement memoranda and other similar marketing documents and due diligence efforts for the Debt Financing and (ii) customary authorization and representation letters, each as required in connection cause its independent auditors to cooperate with the Debt Financing, authorizing the distribution of information ; and (viii) using its commercially reasonable efforts to prospective lenders and containing a representation ensure that the public side of such documents, if any, do not include any information about any Group Company or any securities of any Group Company that would constitute material non-public information within Debt Financing benefits from the meaning of the United States federal and state securities laws if any Group Company were a public reporting company, (d) using reasonable best efforts to cause the Company’s independent registered accounting firm to provide customary assistance, including (i) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) in connection with any capital markets transaction comprising a part of the Debt Financing, (ii) providing customary consents to the inclusion of their audit report in respect of any financial statements existing lending relationships of the Company and the Company Subsidiaries in any offering documents relating CHUHC Subsidiaries, provided, that (A) neither Seller nor, prior to the Debt Financing and (iii) reasonable assistance and cooperation to Buyer with respect to any auditor due diligence, (e) subject to and conditioned on the occurrence of the Closing, the taking of customary corporate actions reasonably necessary to permit the consummation of and funding Company or any of the Debt Financing, (f) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth in any definitive document relating to the Debt Financing to the extent satisfaction of such condition requires the cooperation of, or is within the control of, the Group Companies, (g) delivering to Buyer at least three (3) Business Days prior to the Closing all such documentation and information as is reasonably requested in writing by Buyer at least ten (10) Business Days prior to the Closing to the extent required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act and the requirements of 31 C.F.R. §1010.230, (h) facilitating and assisting in the preparation and delivery of any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents relating to the Debt Financing relating to the Group Companies, and their respective businesses to be included in the definitive documents relating to the Debt Financing, and assist with the execution and delivery of the same, in each case, solely to the extent reasonable and customary for financings of such type, (i) cooperating with internal and external counsel of Buyer in connection with providing customary back-up certificates and factual information regarding any legal opinion that such counsel may CHUHC Subsidiaries shall be required to deliver in connection with the Debt Financing, in each case, solely to the extent reasonable and customary for financings of such type, and (j) obtaining and providing documents to Buyer (including draft payoff letters) relating to the repayment of the Indebtedness and the release of related guarantees and Liens in accordance with the terms of this Agreement. The Company hereby consents, on behalf of itself and the Group Companies, to the use of the logos of the Group Companies in connection with the Debt Financing; provided that such logos are used solely in a manner that is not intended to, nor is reasonably likely to, harm or disparage the Company’s or any of its Affiliates’ reputation or goodwill.
8.11.2. Notwithstanding anything in this Agreement to the contrary, (a) no Group Company nor any of their respective Representatives shall be required, under the provisions of this Section 8.11 or otherwise in connection with the Debt Financing, to pay any commitment or other similar fee or enter into any binding agreement fees (other than the execution reasonable out of the authorization letters referred to in clause (c)(iipocket expenses reimbursed by Purchaser hereunder) of Section 8.11.1) or commitment or incur any other actual or potential liability or obligation for which such Person is not reimbursed by Purchaser pursuant to this Section 5.9 in connection with the Debt Financing prior to the Closing that is not advanced by BuyerClosing, (bB) no Group Company or neither Seller, the Company, nor any of their respective Representatives, managers, Subsidiaries nor any Persons who are officers or employees directors of Seller, the Company or their Subsidiaries shall be required to execute or enter into, perform or authorize adopt any agreement with respect resolutions approving any financing prior to the Debt Financing (other than the execution of the authorization letters referred Closing or to deliver any agreement, certificate, document or instrument, in clause (c)(ii) of Section 8.11.1) each case, that is not contingent upon the Closing or that would be effective prior to the Closing DateClosing, (cC) no Representativeobligation of Seller, manager, officer or employee of any Group Company shall be required to deliver any certificate or take any other action pursuant to this Section 8.11 to the extent any such action would reasonably be expected to result in personal liability to such Representative, manager, officer or employee, (d) no Group Company or their respective Representatives shall be required to take any action that would reasonably be expected, in the reasonable judgment of the Company, to conflict with, or result in any violation or breach of, any applicable Laws, any organizational documents of any Group Company, any contract or obligations of confidentiality (not created in contemplation hereof) binding on any Group Company, (e) no Group Company or any of their respective Representatives shall be required to take any action that would cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement, (f) no Group Company or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, the Company has, in its good faith, determined is not true, (g) no Group Companies or their respective Representatives shall be required to provide, and the Buyer will be solely responsible for the preparation of: (1) pro forma financial information; (2) any description of all or any component of the Debt Financing; or (3) projections, risk factors or other forward-looking statements relating to all or any component of the Debt Financing; and (h) no Group Company shall be required to provide access to or disclose information that the Company determines would jeopardize any attorney–client privilege or other similar privilege of the Company or any of its Subsidiaries. Promptly upon request by the Company, Xxxxx will reimburse the Company for any reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Company, the Company Subsidiaries or any of their Representatives in connection with the cooperation of the Company, the Company Subsidiaries and their Representatives contemplated by this Section 8.11. Except in the case of fraud or a breach of this Agreement, Buyer shall indemnify, defend, and hold harmless the Group Companies and their respective Representatives from and against any and all losses, damages, awards, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecution, investigation, defense or settlement of any of the foregoing) and other amounts suffered or incurred by them in connection with (i) any action taken by them at the request of Buyer pursuant to this Section 8.11 or in connection with the arrangement of the Debt Financing or (ii) any information utilized in connection therewith, and the foregoing obligations shall survive termination of this Agreement and the occurrence of the Closing. In addition, no action, liability or obligation of the Company, any of the Company Subsidiaries or any of their respective Representatives pursuant to under any certificate, agreementdocument, arrangement, document instrument or instrument relating agreement entered into pursuant to any Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) will foregoing shall be effective until the Closing Date. All material, non-public information regarding the Group Companies provided to Buyer or any and (D) none of its Representatives pursuant to this Section 8.11 shall be kept confidential by them in accordance with the Confidentiality Agreement except for disclosure to potential investors as required in connection with the Debt Financing subject to customary confidentiality protections. Notwithstanding anything to the contrarySeller, the Company or their Subsidiaries, nor any Persons who are officers or directors of Seller, the Company or their Subsidiaries, shall be deemed required to have complied with this Section 8.11 for all purposes of this Agreement (including Article 6 and Article 7) unless take any corporate, limited liability company, partnership or other similar action that is effective prior to the Debt Financing has Closing that is not been obtained primarily as a result conditioned on the occurrence of the Company’s Willful Breach Closing. The Company will provide to Purchaser and the Financing Sources such information as may be necessary so that the Financing Information and Marketing Material is complete and correct in all material respects and does not and will not contain any untrue statement of its obligations a material fact or omit to state a material fact necessary to make the statements contained therein, in the light of the circumstances under this Section 8.11. Notwithstanding anything herein to the contrarywhich such statements are made, Xxxxx acknowledges and agrees that obtaining any Debt Financing is not a condition to the Closingmisleading.
Appears in 1 contract
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (xa) provide Seller and the Company with written notice that such Debt Financing has been obtained and (y) deliver (or cause to be delivered) to Seller and the Company true, correct and complete copies of all arrangements pursuant to which any Financing Parties shall have committed to provide any portion of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further that, in no event shall the receipt of such Debt Financing be a condition to Closing and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. Prior to the Closing, subject to Section 8.11.2, the Company shall use reasonable best efforts to, and shall use reasonable best efforts to cause the Company its Subsidiaries and its and their respective Representatives to use their reasonable best efforts to, in each case at BuyerParent’s sole cost and expense, provide to Buyer such customary cooperation that is reasonably requested by Buyer that is reasonably necessary Parent or Merger Sub to assist Guarantor, Parent and Merger Sub in arranging, obtaining and syndicating connection with causing the conditions to the Debt Financing, if any (provided that such requested cooperation Financing to be satisfied or as is consistent with applicable Laws and does not unreasonably interfere with the operations of the Group Companies), including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies as may be otherwise reasonably requested by Buyer for the completion of Parent or Merger Sub solely in connection with their efforts to obtain the Debt FinancingFinancing or to effect the Repayments, which cooperation shall include using reasonable best efforts to:
(bi) participating participate (which shall be limited to teleconference or virtual meeting platforms) in telephonic meetings and otherwise reasonably assisting with the preparation a reasonable number of appropriate and customary materials customary lender meetings, lender presentations, due diligence sessions and rating agency meetings, in each case, upon reasonable advance notice, during normal business hours and at mutually agreed times;
(including accounting due diligence sessionsii) and sessions with rating agencies provide reasonable assistance to Parent in connection with the Debt Financing to the extent reasonable and customary for financings of such type, (c) reasonably assisting in the its preparation of (i) customary rating agency presentations, customary bank information memoranda, lender and investor presentations, offering documents, offering or private placement memoranda and other similar marketing documents reasonably and due diligence efforts for the Debt Financing and (ii) customary authorization and representation letters, each as customarily required in connection with the Debt Financing, in each case, solely with respect to information relating to the Company (to the extent related to its business) and its Subsidiaries, and promptly furnish, to the extent practicable, to Parent and Merger Sub such information regarding the Company and its Subsidiaries (and updates thereto as reasonably requested by such Persons), including historical financial information, in each case, that is readily available from the books and records of the Company and its Subsidiaries in the ordinary course of business, and other customary financial information as is reasonably requested by Pxxxxx and Merger Sub in connection with the Debt Financing or the Repayments, or that is customarily required in connection with the execution of financings of a type similar to the Debt Financing or the Repayments;
(iii) ensure that an officer of the Company executes prior to the Closing customary “authorization” letters in connection with bank information memoranda authorizing the distribution of information to prospective lenders and containing a representation that the public side of such documents, if any, do not include any information about any Group Company or any securities of any Group Company that would constitute material non-public information within the meaning of the United States federal and state securities laws if any Group Company were a public reporting company, lenders; and
(div) using reasonable best efforts to cause the Company’s independent registered accounting firm to provide customary assistance, including (i) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) in connection with any capital markets transaction comprising a part of the Debt Financing, (ii) providing customary consents to the inclusion of their audit report in respect of any financial statements of the Company and the Company Subsidiaries in any offering documents relating to the Debt Financing and (iii) reasonable assistance and cooperation to Buyer with respect to any auditor due diligence, (e) subject to and conditioned on the occurrence of the Closing, the taking of customary corporate actions reasonably necessary to permit the consummation of and funding of the Debt Financing, (f) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth in any definitive document relating to the Debt Financing to the extent satisfaction of such condition requires the cooperation of, or is within the control of, the Group Companies, (g) delivering to Buyer deliver at least three four (34) Business Days prior to the Closing all such Date information and documentation related to the Company and information as is its Subsidiaries required and reasonably requested in writing by Buyer Parent or Merger Sub at least ten eight (10) 8) Business Days prior to the Closing Date with respect to the extent required by U.S. regulatory authorities compliance under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act Act.
(b) The cooperation and other obligations contemplated by Section 6.18(a) shall not (A) require any action that would (or would reasonably be expected to) cause any condition of the requirements of 31 C.F.R. §1010.230Company to Closing to fail to be satisfied, (hB) facilitating and assisting in require the preparation and delivery of any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents relating to the Debt Financing relating to the Group Companies, and their respective businesses to be included in the definitive documents relating to the Debt Financing, and assist with the execution and delivery of the same, in each case, solely to the extent reasonable and customary for financings of such type, (i) cooperating with internal and external counsel of Buyer 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 Debt Financing, in each case, solely to the extent reasonable and customary for financings of such type, and (j) obtaining and providing documents to Buyer (including draft payoff letters) relating to the repayment of the Indebtedness and the release of related guarantees and Liens in accordance with the terms of this Agreement. The Company hereby consents, on behalf of itself and the Group Companies, to the use of the logos of the Group Companies in connection with the Debt Financing; provided that such logos are used solely in a manner that is not intended to, nor is reasonably likely to, harm or disparage the Company’s or any of its Affiliates’ reputation Subsidiaries or goodwill.
8.11.2. Notwithstanding anything in this Agreement to the contrary, (a) no Group Company nor any of their respective Representatives shall be required, under the provisions of this Section 8.11 or otherwise in connection with the Debt Financing, to pay any commitment or other similar fee or enter into any binding agreement (i) other than the execution of with respect to the authorization letters referred to in clause (c)(ii) letter contemplated by Section 6.18(a)(iii), execute, deliver, enter into, approve or perform any agreement, commitment, document, certificate or instrument, or modification of Section 8.11.1) any agreement, commitment, document, certificate or commitment instrument or incur any other actual or potential liability or obligation relating to the Debt Financing, in each case, that becomes effective prior to the Closing, (ii) deliver or cause the delivery of any legal opinions or reliance letters or any certificate as to solvency or any other certificate in connection with the Debt Financing prior to Financing, excluding any customary authorization letters contemplated by Section 6.18(a)(iii) (provided, that such customary authorization letters (or the Closing bank information memoranda in which such letters are included) shall include language that is not advanced exculpates the Company and each of its Subsidiaries and their respective Representatives and Affiliates from any liability in connection with the unauthorized use by Buyerthe recipients thereof of the information set forth in any such bank confidential information memoranda or similar memoranda or report distributed in connection therewith), (biii) no Group Company adopt any resolutions, execute any consents or otherwise take any of their respective Representativescorporate or similar action or deliver any certificate, managers, officers or employees shall be required to execute or enter into, perform or authorize any agreement with respect in connection to the Debt Financing (other than or the execution incurrence of the authorization letters referred to indebtedness thereby, in clause (c)(ii) of Section 8.11.1) each case, that is not contingent upon the Closing or that would be becomes effective prior to the Closing Dateor (iv) pay any commitment or other similar fee, incur or reimburse any costs or expenses or incur any liability or obligation of any kind or give any indemnities prior to the Closing in connection with the Debt Financing, other than any payment or reimbursement of incidental out-of-pocket costs and expenses that are subject to reimbursement by Parent or Merger Sub, (cC) no Representative, manager, officer require the Company or employee any of any Group Company shall be required its Subsidiaries or their respective Affiliates and Representatives to deliver any certificate or take any other action pursuant to this Section 8.11 to the extent any such action would 6.18(a) if doing so could reasonably be expected to result in personal liability to the Company or such Subsidiary, Affiliate or Representative, manager, officer or employee, (dD) no Group Company or their respective Representatives shall be required to take any action that would reasonably be expected, in the reasonable judgment of the Company, to conflict with, or result in any violation or breach of, any applicable Laws, any organizational documents of any Group Company, any contract or obligations of confidentiality (not created in contemplation hereof) binding on any Group Company, (e) no Group Company or any of their respective Representatives shall be required to take any action that would cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement, (f) no Group Company or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, the Company has, in its good faith, determined is not true, (g) no Group Companies or their respective Representatives shall be required to provide, and the Buyer will be solely responsible for the preparation of: (1) pro forma financial information; (2) any description of all or any component of the Debt Financing; or (3) projections, risk factors or other forward-looking statements relating to all or any component of the Debt Financing; and (h) no Group Company shall be required to provide access to or disclose information that the Company determines would jeopardize any attorney–client privilege or other similar privilege of require the Company or any of its Subsidiaries to provide, or cause to be provided, any information the disclosure of which is prohibited or restricted under applicable Law or any binding agreement with a third party that is not entered into for the purpose of evading this covenant or is legally privileged or consists of attorney work product or could reasonably be expected to result in the loss of any attorney-client privilege, (E) require the Company or any of its Subsidiaries to take any action that will conflict with or violate any applicable Laws or result in a violation or breach of, or default under, any agreements to which the Company or any of its Subsidiaries is a party (other than any agreement entered into for the purpose of evading this covenant), (F) unreasonably interfere with the ongoing operations of the Company and its Subsidiaries, or (G) require the preparation or delivery of any financial statements or other financial data that are not prepared in the ordinary course of its financial reporting practice, in each case, except as contemplated by Section 6.18(a)(ii); it being understood and agreed that under no circumstances shall the Company and its Subsidiaries be required to provide projections, estimates or pro forma financial information, including any pro forma cost savings, synergies, capitalization or other pro forma adjustments to be incorporated into any pro forma financial information, all of which shall be the responsibility of Parent and Merger Sub.
(c) Without limitation of any other provision of this Agreement, neither the Company nor any of its Affiliates or Subsidiaries shall have any liability to Parent or Merger Sub in respect of any financial statements, other financial information or data or other information, solely by virtue of providing such information pursuant to this Section 6.18. Promptly upon All non-public or other confidential information provided by the Company to Parent or its Affiliates pursuant to this Section 6.18 shall be kept confidential in accordance with the Confidentiality Agreement; provided, that, notwithstanding any of the foregoing, Parent and its Affiliates and the Debt Financing Sources may disclose any such non-public or otherwise confidential information in connection with the syndication of the Debt Financing, subject to customary confidentiality undertakings consistent with the Debt Commitment Letter or otherwise as is customary in the syndication practices of the Debt Financing Sources by recipients of such non-public or otherwise confidential information.
(d) Parent shall, following request by the Company, Xxxxx will reimburse the Company for any reasonable and documented out-of-pocket expenses and costs and expenses (including reasonable and documented out-of-pocket outside attorneys’ feesfees and disbursements) incurred by the Company, the Company Subsidiaries or any of their Representatives in connection with the cooperation of the Company, the Company Subsidiaries and their Representatives contemplated by ’s or its Affiliates’ or Representatives’ obligations under this Section 8.11. Except in the case of fraud or a breach of this Agreement, Buyer 6.18 and shall indemnify, defend, indemnify and hold harmless the Group Companies Company, its Affiliates and their respective Representatives from and against any and all losses, damages, claims, costs (including cost of investigation), settlement payments, injuries, liabilities, judgments, awards, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, fines or expenses (including interest, penalties, reasonable legal, consulting and other professional documented out-of-pocket attorneys’ fees and expenses and all amounts paid in prosecution, investigation, defense or settlement of any of the foregoingdisbursements) and other amounts suffered or incurred by any of them in connection with (i) any action taken by them at the request of Buyer pursuant to this Section 8.11 as a result of, or in connection with the arrangement of with, (1) such cooperation, (2) the Debt Financing or Financing, (ii3) any information utilized in connection therewith, and the foregoing obligations shall survive termination of this Agreement and the occurrence of the Closing. In addition, no action, liability or obligation of the Company, any of the Company Subsidiaries or any of their respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to any Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) will be effective until the Closing Date. All material, non-public information regarding the Group Companies provided to Buyer or any of its Representatives pursuant to this Section 8.11 shall be kept confidential by them in accordance with the Confidentiality Agreement except for disclosure to potential investors as required used in connection with the Debt Financing subject to customary confidentiality protections. Notwithstanding anything to the contrarythat was not provided by, or on behalf of, the Company shall be deemed or any of its Affiliates or that was not included in, or discernable from, public filings by the Company or any of its Affiliates and (4) any action taken by any of them at the request of Parent or Merger Sub pursuant to have complied this Section 6.18 or otherwise in accordance with this Section 8.11 for all purposes of this Agreement 6.18, except, in each case, to the extent such losses, damages, claims, costs (including Article 6 cost of investigation), settlement payments, injuries, liabilities, judgments, awards, penalties, fines, or expenses (including outside attorneys’ fees and Article 7disbursements) unless arose from the gross negligence, fraud or willful misconduct by the Company, its Affiliates or any of their respective Representatives, as determined in a final, non-appealable judgment of a court of competent jurisdiction or the inaccuracy of information provided by, or on behalf of, the Company or any of its Affiliates in connection with the Debt Financing; provided, that any request for reimbursement be made before the twentieth (20th) day of any month and payment will be made on the final day of such month. Any lender presentations or bank memoranda prepared by, or on behalf of or utilized by Parent, Merger Sub or their Affiliates, or Parent’s or Merger Sub’s Debt Financing has not been obtained primarily as Sources, in connection with Guarantor’s financing activities in connection with the Contemplated Transactions, which include any information provided by the Company or any of its Affiliates or Representatives shall include a result conspicuous disclaimer to the effect that none of the Company or any of its Subsidiaries or their respective Affiliates or any of their or their Affiliates’ respective Representatives nor any employees thereof have any responsibility or liability for the content of such document and disclaim all responsibility therefor, including any unauthorized use by the recipients thereof of the information set forth in such document. Any use of the Company’s Willful Breach of and its obligations under this Section 8.11. Subsidiaries’ logos in connection with the Debt Financing shall require the Company’s prior written consent (such consent not to be unreasonably withheld, conditioned or delayed).
(e) Notwithstanding anything herein to the contrary, Xxxxx acknowledges the condition set forth in Section 7.3(b), as it applies in respect of the Company’s obligations under this Section 6.18, shall be deemed satisfied unless the Company has breached its obligations under this Section 6.18 and agrees that obtaining any such breach resulted in Parent not being able to obtain the Debt Financing is not a condition to contemplated by any of the ClosingDebt Commitment Letters.
Appears in 1 contract
Financing Cooperation. 8.11.1. Buyer may determinePrior to the Closing, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (x) provide Seller and the Company with written notice that such Debt Financing has been obtained and (y) deliver (or cause to be delivered) to Seller and the Company true, correct and complete copies of all arrangements pursuant to which any Financing Parties Parent shall have committed use reasonable best efforts to provide to Purchaser all reasonable cooperation reasonably requested by Purchaser that is necessary in connection with any portion of the Debt Financing; provided that any fee letters may be redacted debt or equity financing sought by Purchaser in a customary manner; provided further that, in no event shall the receipt of such Debt Financing be a condition to Closing and Buyer confirms that it will have at Closing sufficient cash to consummate connection with the transactions contemplated by this Agreement and to perform its obligations hereunder. Prior to (the Closing“Financing”), subject to Section 8.11.2, the Company shall use reasonable best efforts to, and shall use including (x) using reasonable best efforts to cause the Company Subsidiaries and its and their respective Representatives to, in each case at Buyer’s sole expense, provide to Buyer such cooperation reasonably requested by Buyer that is reasonably necessary in arranging, obtaining and syndicating the Debt Financing, if any (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the operations of the Group Companies), including as promptly as reasonably practical, (a) furnishing Buyer participate, at reasonable times and upon reasonable notice, in a reasonable number of meetings (including customary meetings with the Required Financial Information parties acting as lead arrangers or agents for, and other pertinent information regarding the Group Companies as may be reasonably requested by Buyer for the completion prospective lenders and/or purchasers of the Debt Financingdebt or equity securities), (b) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentations, road shows, due diligence sessions, drafting sessions (including accounting due diligence sessions) and sessions with rating agencies in connection with the Debt Financing, (b) assist Purchaser and its Financing Sources in the preparation of customary offering memoranda, bank information memoranda, rating agency presentations and lender presentations relating to the extent Financing, (c) cooperate with the marketing efforts of Purchaser and its Financing Sources for all or any portion of the Financing, (d) provide and execute documents as may be reasonably requested by Purchaser or its Financing Sources, (e) execute and deliver any pledge and security documents and otherwise facilitate the pledging of collateral, and (f) provide such information about powers of attorney executed on behalf of the Transferred Entities as may be reasonably requested by Purchaser or its Financing Sources, and (y) using commercially reasonable efforts to assist in obtaining accountant’s comfort letters and legal opinions reasonably requested by Purchaser and customary for financings of such type, (c) reasonably assisting in the preparation of (i) customary bank information memoranda, lender and investor presentations, offering documents, offering or private placement memoranda and other similar marketing documents and due diligence efforts for the Debt Financing and (ii) customary authorization and representation letters, each as required in connection with the Debt Financing, authorizing the distribution of information to prospective lenders and containing a representation that the public side of such documents, if any, do not include any information about any Group Company or any securities of any Group Company that would constitute material non-public information within the meaning of the United States federal and state securities laws if any Group Company were a public reporting company, (d) using reasonable best efforts to cause the Company’s independent registered accounting firm to provide customary assistance, including (i) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) in connection with any capital markets transaction comprising a part of the Debt Financing, (ii) providing customary consents to the inclusion of their audit report in respect of any financial statements of the Company and the Company Subsidiaries in any offering documents relating to the Debt Financing and (iii) reasonable assistance and cooperation to Buyer with respect to any auditor due diligenceFinancing; provided, (e) subject to and conditioned on the occurrence of the Closinghowever, the taking of customary corporate actions reasonably necessary to permit the consummation of and funding of the Debt Financing, (f) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth in any definitive document relating to the Debt Financing to the extent satisfaction of such condition requires the cooperation of, or is within the control of, the Group Companies, (g) delivering to Buyer at least three (3) Business Days prior to the Closing all such documentation and information as is reasonably requested in writing by Buyer at least ten (10) Business Days prior to the Closing to the extent required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act and the requirements of 31 C.F.R. §1010.230, (h) facilitating and assisting in the preparation and delivery of any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents relating to the Debt Financing relating to the Group Companies, and their respective businesses to be included in the definitive documents relating to the Debt Financing, and assist with the execution and delivery of the same, in each case, solely to the extent reasonable and customary for financings of such typethat, (i) cooperating with internal and external counsel of Buyer 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 Debt Financing, in each case, solely to the extent reasonable and customary for financings of such type, and (j) obtaining and providing documents to Buyer (including draft payoff letters) relating to the repayment irrespective of the Indebtedness and the release above, no obligation of related guarantees and Liens in accordance with the terms of this Agreement. The Company hereby consentsParent, on behalf of itself and the Group Companies, to the use of the logos of the Group Companies in connection with the Debt Financing; provided that such logos are used solely in a manner that is not intended to, nor is reasonably likely to, harm or disparage the Company’s or any of its Affiliates’ reputation or goodwill.
8.11.2. Notwithstanding anything in this Agreement to the contrary, (a) no Group Company nor any of their respective Representatives shall be required, under the provisions of this Section 8.11 or otherwise in connection with the Debt Financing, to pay any commitment or other similar fee or enter into any binding agreement (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) or commitment or incur any other actual or potential liability or obligation in connection with the Debt Financing prior to the Closing that is not advanced by Buyer, (b) no Group Company Seller or any of their respective RepresentativesAffiliates under any certificate, managersdocument or instrument shall be effective until the Closing and none of Parent, officers Seller or employees any of their respective Affiliates shall be required to execute take or enter intocommit to take any action under any certificate, perform document or authorize any agreement with respect to the Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) instrument that is not contingent upon the Closing (including the entry into any agreement that is effective before the Closing) or that would be effective prior to the Closing DateClosing, (cii) no Representativenothing herein shall require such cooperation to the extent it would interfere unreasonably with the business or operations of Parent, managerSeller or their respective Affiliates (including, officer without limitation, the Transferred Entities) or employee encumber any assets of any Group Company such Persons, (iii) none of Parent, Seller or their respective Affiliates shall be required to deliver issue any certificate offering or information document, (iv) none of Parent, Seller or any of their respective Affiliates shall be required to take or permit the taking of any other action pursuant to this Section 8.11 to the extent any such action would reasonably be expected to result in personal liability to such Representative, manager, officer or employee, (d) no Group Company or their respective Representatives shall be required to take any action 6.13 that would reasonably be expected, in the reasonable judgment of the Company, to conflict with, or result in any violation or breach of, any applicable Laws, any organizational documents of any Group Company, any contract or obligations of confidentiality (not created in contemplation hereofA) binding on any Group Company, (e) no Group Company or any of their respective Representatives shall be required to take any action that would cause any condition to the Closing set forth herein to not be satisfied director, officer, employee or otherwise cause any breach stockholder of this Agreement, (f) no Group Company or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, the Company has, in its good faith, determined is not true, (g) no Group Companies or their respective Representatives shall be required to provide, and the Buyer will be solely responsible for the preparation of: (1) pro forma financial information; (2) any description of all or any component of the Debt Financing; or (3) projections, risk factors or other forward-looking statements relating to all or any component of the Debt Financing; and (h) no Group Company shall be required to provide access to or disclose information that the Company determines would jeopardize any attorney–client privilege or other similar privilege of the Company Parent or any of its Subsidiaries. Promptly upon request by the CompanyAffiliates to incur any personal liability, Xxxxx will reimburse the Company for any reasonable costs and expenses (including reasonable attorneys’ feesB) incurred by the Company, the Company Subsidiaries or any of their Representatives in connection conflict with the cooperation organizational documents of the Company, the Company Subsidiaries and their Representatives contemplated by this Section 8.11. Except in the case of fraud or a breach of this Agreement, Buyer shall indemnify, defend, and hold harmless the Group Companies and their respective Representatives from and against any and all losses, damages, awards, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecution, investigation, defense or settlement of any of the foregoing) and other amounts suffered or incurred by them in connection with (i) any action taken by them at the request of Buyer pursuant to this Section 8.11 or in connection with the arrangement of the Debt Financing or (ii) any information utilized in connection therewith, and the foregoing obligations shall survive termination of this Agreement and the occurrence of the Closing. In addition, no action, liability or obligation of the Company, any of the Company Subsidiaries or any of their respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to any Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) will be effective until the Closing Date. All material, non-public information regarding the Group Companies provided to Buyer Parent or any of its Representatives pursuant to this Section 8.11 shall be kept confidential by them in accordance with the Confidentiality Agreement except for disclosure to potential investors as required in connection with the Debt Financing subject to customary confidentiality protections. Notwithstanding anything to the contraryAffiliates or any Laws, the Company shall be deemed to have complied with this Section 8.11 for all purposes of this Agreement (including Article 6 and Article 7) unless the Debt Financing has not been obtained primarily as a result of the Company’s Willful Breach of its obligations under this Section 8.11. Notwithstanding anything herein to the contrary, Xxxxx acknowledges and agrees that obtaining any Debt Financing is not a condition to the Closing.or
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Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (xa) provide Seller and the Company with written notice that such Debt Financing has been obtained and (y) deliver (or cause to be delivered) to Seller and the Company true, correct and complete copies of all arrangements pursuant to which any Financing Parties shall have committed to provide any portion of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further that, in no event shall the receipt of such Debt Financing be a condition to Closing and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. Prior to the Closing, subject to Section 8.11.2, the Company shall use its reasonable best efforts toefforts, and shall cause each of the Sale Entities to use their reasonable best efforts, and each of them shall use their reasonable best efforts to cause the Company Subsidiaries and its and their respective Representatives torepresentatives to use their reasonable best efforts, in each case at Buyer’s sole expenseto provide customary cooperation, provide to Buyer such cooperation the extent reasonably requested by Buyer that is reasonably necessary in arrangingwriting, obtaining and syndicating in connection with the Debt Financingoffering, if arrangement, syndication, consummation, issuance or sale of any Financing or Alternative Financing obtained in accordance with this Section 5.13 (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the ongoing operations of Seller, the Group CompaniesSale Entities or any of its Affiliates), including as including, to the extent so requested, using reasonable best efforts to: (i) furnish promptly as reasonably practical, (a) furnishing to Buyer with the Required Financial Financing Information and such other pertinent financial information regarding the Group Companies Sale Entities as may be is reasonably requested by Buyer for the completion of the Debt Financing, (b) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies in connection with the Debt Financing and reasonably available to the extent Seller; (ii) provide reasonable and customary for financings of such type, (c) reasonably assisting assistance to Buyer and the Financing Parties in the preparation of of, and provide information with respect to the Sale Entities customarily included in, (iA) customary bank 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, offering bank books and other marketing documents, offering or private placement memoranda and other similar marketing documents and due diligence efforts for any portion of the Debt Financing and (iiB) customary authorization and representation letters, each as required in connection with the Debt Financing, authorizing the distribution of information to prospective lenders and containing a representation that the public side of such documents, if any, do not include any information about any Group Company or any securities of any Group Company that would constitute material non-public information within the meaning of the United States federal and state securities laws if any Group Company were a public reporting company, (d) using reasonable best efforts to cause the Company’s independent registered accounting firm to provide customary assistance, including (i) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) in connection with any capital markets transaction comprising a part of the Debt Financing, (ii) providing customary consents to the inclusion of their audit report in respect of any financial statements of the Company and the Company Subsidiaries in any offering documents relating to the Debt Financing and materials for rating agency presentations; (iii) reasonable assistance cooperate with the marketing efforts of Xxxxx and cooperation to Buyer with respect to any auditor due diligencethe Financing Parties, (e) subject to and conditioned on the occurrence of the Closingincluding, the taking of customary corporate actions reasonably necessary to permit the consummation of and funding of the Debt Financing, (f) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth in any definitive document relating to the Debt Financing to the extent satisfaction applicable, obtaining representation and authorization letters and arranging for customary auditor consents for use of such condition requires the cooperation of, or is within the control of, the Group Companies, (g) delivering to Buyer at least three (3) Business Days prior to the Closing all such documentation any Financial Information and information as is reasonably requested in writing by Buyer at least ten (10) Business Days prior to the Closing to the extent required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act and the requirements of 31 C.F.R. §1010.230, (h) facilitating and assisting other financial data in the preparation marketing and delivery of any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents relating to the Debt Financing relating to the Group Companies, and their respective businesses to be included in the definitive documents relating to the Debt Financing, and assist with the execution and delivery of the same, in each case, solely to the extent reasonable and customary for financings of such type, (i) cooperating with internal and external counsel of Buyer 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 Debt Financing, in each case, solely to the extent reasonable and customary for financings of such type, and (j) obtaining and providing documents to Buyer (including draft payoff letters) relating to the repayment of the Indebtedness and the release of related guarantees and Liens in accordance with the terms of this Agreement. The Company hereby consents, on behalf of itself and the Group Companies, to the use of the logos of the Group Companies in connection with the Debt Financing; provided that such logos are used solely in a manner that is not intended to, nor is reasonably likely to, harm or disparage the Company’s or any of its Affiliates’ reputation or goodwill.
8.11.2. Notwithstanding anything in this Agreement to the contrary, (a) no Group Company nor any of their respective Representatives shall be required, under the provisions of this Section 8.11 or otherwise in connection with the Debt Financing, to pay any commitment or other similar fee or enter into any binding agreement (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) or commitment or incur any other actual or potential liability or obligation in connection with the Debt Financing prior to the Closing that is not advanced by Buyer, (b) no Group Company or any of their respective Representatives, managers, officers or employees shall be required to execute or enter into, perform or authorize any agreement with respect to the Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) that is not contingent upon the Closing or that would be effective prior to the Closing Date, (c) no Representative, manager, officer or employee of any Group Company shall be required to deliver any certificate or take any other action pursuant to this Section 8.11 to the extent any such action would reasonably be expected to result in personal liability to such Representative, manager, officer or employee, (d) no Group Company or their respective Representatives shall be required to take any action that would reasonably be expected, in the reasonable judgment of the Company, to conflict with, or result in any violation or breach of, any applicable Laws, any organizational documents of any Group Company, any contract or obligations of confidentiality (not created in contemplation hereof) binding on any Group Company, (e) no Group Company or any of their respective Representatives shall be required to take any action that would cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement, (f) no Group Company or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, the Company has, in its good faith, determined is not true, (g) no Group Companies or their respective Representatives shall be required to provide, and the Buyer will be solely responsible for the preparation of: (1) pro forma financial information; (2) any description of all or any component of the Debt Financing; or (3) projections, risk factors or other forward-looking statements relating to all or any component of the Debt Financing; and (h) no Group Company shall be required to provide access to or disclose information that the Company determines would jeopardize any attorney–client privilege or other similar privilege of the Company or any of its Subsidiaries. Promptly upon request by the Company, Xxxxx will reimburse the Company for any reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Company, the Company Subsidiaries or any of their Representatives in connection with the cooperation of the Company, the Company Subsidiaries and their Representatives contemplated by this Section 8.11. Except in the case of fraud or a breach of this Agreement, Buyer shall indemnify, defend, and hold harmless the Group Companies and their respective Representatives from and against any and all losses, damages, awards, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecution, investigation, defense or settlement of any of the foregoing) and other amounts suffered or incurred by them in connection with (i) any action taken by them at the request of Buyer pursuant to this Section 8.11 or in connection with the arrangement of the Debt Financing or (ii) any information utilized in connection therewith, and the foregoing obligations shall survive termination of this Agreement and the occurrence of the Closing. In addition, no action, liability or obligation of the Company, any of the Company Subsidiaries or any of their respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to any Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) will be effective until the Closing Date. All material, non-public information regarding the Group Companies provided to Buyer or any of its Representatives pursuant to this Section 8.11 shall be kept confidential by them in accordance with the Confidentiality Agreement except for disclosure to potential investors as required in connection with the Debt Financing subject to customary confidentiality protections. Notwithstanding anything to the contrary, the Company shall be deemed to have complied with this Section 8.11 for all purposes of this Agreement (including Article 6 and Article 7) unless the Debt Financing has not been obtained primarily as a result of the Company’s Willful Breach of its obligations under this Section 8.11. Notwithstanding anything herein to the contrary, Xxxxx acknowledges and agrees that obtaining any Debt Financing is not a condition to the Closing.offering documents;
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Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (xa) provide Seller and the The Company with written notice that such Debt Financing has been obtained and (y) deliver (or cause to be delivered) to Seller and the Company true, correct and complete copies of all arrangements pursuant to which any Financing Parties shall have committed agrees to provide any portion of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further thatsuch assistance, in no event shall the receipt of such Debt Financing be a condition to Closing and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform cause its obligations hereunder. Prior to the Closing, subject to Section 8.11.2, the Company shall use reasonable best efforts to, and shall use reasonable best efforts to cause the Company Subsidiaries and its and their respective Representatives toto provide such assistance, in each case at Buyer’s sole expense, provide to Buyer such cooperation reasonably requested by Buyer that is reasonably necessary in arranging, obtaining and syndicating the Debt Financing, if any (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the operations of the Group Companies), including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies as may be reasonably requested by Buyer for the completion of the Debt Financing, (b) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies in connection with the Debt Financing to as is reasonably requested by Parent. Such assistance shall include, but not be limited to, the extent reasonable and customary for financings of such type, (c) reasonably assisting in the preparation of following: (i) customary bank information memorandaparticipating in a reasonable number of meetings, lender and investor presentationsdrafting sessions, offering documents, offering or private placement memoranda and other similar marketing documents rating agency presentations and due diligence efforts for the Debt Financing and sessions, (ii) customary authorization furnishing Parent and representation letters, each as its lenders with all financial and other information reasonably required by Parent’s lenders in connection with the Debt Financing, authorizing including, the distribution Required Financial Information, (iii) assisting Parent and its lenders in the preparation of (A) a customary bank information to prospective lenders memorandum, confidential information memorandum and containing a representation that the public side of such similar documents, if anyincluding customary authorization or reliance letters, do not include any information about any Group Company or any securities of any Group Company that would constitute material non-public information within the meaning of the United States federal and state securities laws if any Group Company were a public reporting company, (d) using reasonable best efforts to cause the Company’s independent registered accounting firm to provide customary assistance, including (i) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) in connection with any capital markets transaction comprising a part of the Debt Financing, (ii) providing customary consents to the inclusion of their audit report in respect of any financial statements of the Company and the Company Subsidiaries in any offering documents relating to for the Debt Financing and (iiiB) reasonable assistance and cooperation to Buyer with respect to any auditor due diligencematerials for rating agency presentations, (eiv) subject to and conditioned on the occurrence of the Closing, the taking of customary corporate actions reasonably necessary to permit the consummation of and funding of the Debt Financing, (f) reasonably assisting in Buyer’s efforts cooperating with Parent to satisfy the conditions precedent set forth in any definitive document relating to the Debt Financing to the extent satisfaction of such condition requires the cooperation of, or is within the control of the Company and reasonably requested by Parent, (v) assisting in the preparation of, and executing and delivering, definitive financing documents, including, customary closing certificates, as may be reasonably required in connection with the Group CompaniesDebt Financing and other customary certificates and collateral security and guarantee documentation, as may be reasonably requested by Parent, (gvi) delivering to Buyer the Parent at least three (3) Business Days prior to the Closing Date all such documentation and other information as is reasonably requested in writing by Buyer at least ten (10) Business Days prior to the Closing to the extent required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, regulations (including the PATRIOT Act and U.S.A. Patriot Act), that has been reasonably requested in writing by the requirements of 31 C.F.R. §1010.230Financing Sources at least eight (8) Business Days prior to the Closing Date, (hvii) facilitating using commercially reasonable efforts to furnish Parent and assisting in its lenders as promptly as reasonably practicable with financial, business and other information regarding the preparation Company and delivery its Subsidiaries as may be reasonably requested by the Parent, (viii) using commercially reasonable efforts to ensure that the Financing Sources benefit materially from existing lending and investment banking relationships of any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents relating the Company and (x) cooperating with Parent to the Debt Financing relating extent within the control of the Company, and taking all corporate actions, subject to the Group Companiesoccurrence of the Closing, and their respective businesses reasonably requested by Parent to be included in permit the definitive documents relating to consummation of the Debt Financing; provided, and assist with that (w) the execution and delivery of the same, in each case, solely to the extent reasonable and customary for financings of such type, (i) cooperating with internal and external counsel of Buyer in connection with providing customary back-up certificates and factual information regarding any legal opinion that such counsel may Company shall not be required to deliver pay any fees (other than reasonable out of pocket expenses reimbursed by Parent hereunder) or incur any other liability or give any indemnity in connection with the Debt Financing, (x) no obligation of the Company under any agreement, certificate, document or instrument required to be delivered under this Section 5.17(a) shall be effective until the Closing other than in each caserespect of customary authorization or reliance letters, solely (y) no Representative of the Company shall be Table of Contents required to take any action that could reasonably be expected to result in or cause any personal liability on the extent reasonable and customary for financings part of such typeany Representative, and (jz) obtaining nothing in this Agreement will require the Company board of directors to approve any financing, including the Debt Financing, or any definitive documentation related thereto prior to Closing. Parent shall reimburse the Company for all reasonable and documented out of pocket costs and expenses incurred by the Company in connection with the Company’s cooperation and compliance with this Section 5.17(a). Parent will indemnify and hold harmless the Company and its Subsidiaries from and against any and all losses, damages, claims, costs or expenses actually suffered or incurred by them in connection with the arrangement of the Debt Financing and any information used in connection therewith. Notwithstanding anything in this Section 5.17(a) to the contrary, the Company may refuse to provide any access, or to disclose any information, if the Company is advised in writing by its outside legal counsel that providing documents to Buyer such access or disclosing such information would (A) violate applicable Law (including draft payoff letters) relating antitrust and privacy laws); provided, that, the Company shall provide such access or disclose such information to the repayment greatest extent possible without violating applicable Law or (B) cause the loss of any attorney-client privilege; provided, that, if any information is withheld pursuant to the Indebtedness foregoing clause (B), the Company shall inform the Parent as to the general nature of what is being withheld and the release parties shall use commercially reasonable efforts, such as entry into a customary joint defense agreement, to enable the Company to provide such information without causing the loss of related guarantees and Liens in accordance with the terms of this Agreementany attorney-client privilege. The Company hereby consents, on behalf of itself and the Group Companies, consents to the use of the its and its Subsidiaries’ logos of the Group Companies in connection with the Debt Financing; provided that such logos are used solely in a manner that is not intended to, to nor is reasonably likely to, to harm or disparage the Company’s Company or any of its Affiliates’ Subsidiaries or the reputation or goodwill.
8.11.2. Notwithstanding anything in this Agreement to the contrary, (a) no Group Company nor any of their respective Representatives shall be required, under the provisions of this Section 8.11 or otherwise in connection with the Debt Financing, to pay any commitment or other similar fee or enter into any binding agreement (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) or commitment or incur any other actual or potential liability or obligation in connection with the Debt Financing prior to the Closing that is not advanced by Buyer, (b) no Group Company or any of their respective Representatives, managers, officers or employees shall be required to execute or enter into, perform or authorize any agreement with respect to the Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) that is not contingent upon the Closing or that would be effective prior to the Closing Date, (c) no Representative, manager, officer or employee of any Group Company shall be required to deliver any certificate or take any other action pursuant to this Section 8.11 to the extent any such action would reasonably be expected to result in personal liability to such Representative, manager, officer or employee, (d) no Group Company or their respective Representatives shall be required to take any action that would reasonably be expected, in the reasonable judgment of the Company, to conflict with, or result in any violation or breach of, any applicable Laws, any organizational documents of any Group Company, any contract or obligations of confidentiality (not created in contemplation hereof) binding on any Group Company, (e) no Group Company or any of their respective Representatives shall be required to take any action that would cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement, (f) no Group Company or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, the Company has, in its good faith, determined is not true, (g) no Group Companies or their respective Representatives shall be required to provide, and the Buyer will be solely responsible for the preparation of: (1) pro forma financial information; (2) any description of all or any component of the Debt Financing; or (3) projections, risk factors or other forward-looking statements relating to all or any component of the Debt Financing; and (h) no Group Company shall be required to provide access to or disclose information that the Company determines would jeopardize any attorney–client privilege or other similar privilege goodwill of the Company or any of its Subsidiaries. Promptly upon request by Subsidiaries and its or their marks.
(b) The Company shall obtain and deliver to Parent no later than two (2) Business Days prior to the CompanyClosing Date, Xxxxx will reimburse an accurate and complete copy of a payoff letter, dated no more than five (5) Business Days prior to the Closing Date, with respect to the Company for any reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Company, the Company Subsidiaries or any of their Representatives in connection with the cooperation of the Company, the Company Subsidiaries and their Representatives contemplated by this Section 8.11. Except in the case of fraud or a breach of this Agreement, Buyer shall indemnify, defend, and hold harmless the Group Companies and their respective Representatives from and against any and all losses, damages, awards, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses Debt and all amounts paid in prosecution, investigation, defense or settlement of any of payable to the foregoing) and other amounts suffered or incurred by them in connection with lender thereof necessary to (i) any action taken by them at satisfy such Company Debt and all other amounts payable to the request of Buyer pursuant to this Section 8.11 or lender thereof in connection with the arrangement full as of the Debt Financing or Closing and (ii) terminate and release any information utilized in connection therewith, and the foregoing obligations shall survive termination of this Agreement and the occurrence of the Closing. In addition, no action, liability or obligation of the Company, any of the Company Subsidiaries or any of their respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to any Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) will be effective until the Closing Date. All material, non-public information regarding the Group Companies provided to Buyer or any of its Representatives pursuant to this Section 8.11 shall be kept confidential by them in accordance with the Confidentiality Agreement except for disclosure to potential investors as required in connection with the Debt Financing subject to customary confidentiality protections. Notwithstanding anything to the contrary, the Company shall be deemed to have complied with this Section 8.11 for all purposes of this Agreement (including Article 6 and Article 7) unless the Debt Financing has not been obtained primarily as a result of the Company’s Willful Breach of its obligations under this Section 8.11. Notwithstanding anything herein to the contrary, Xxxxx acknowledges and agrees that obtaining any Debt Financing is not a condition to the ClosingLiens related thereto.
Appears in 1 contract
Samples: Merger Agreement (Integrated Device Technology Inc)
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (x) provide Seller and the Company with written notice that such Debt Financing has been obtained and (y) deliver (or cause to be delivered) to Seller and the Company true, correct and complete copies of all arrangements pursuant to which any Financing Parties shall have committed to provide any portion of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further that, in no event shall the receipt of such Debt Financing be a condition to Closing and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. Prior to the Closing, subject to Section 8.11.2, the Company shall, and shall cause its Subsidiaries to, use, and shall use their reasonable best efforts to cause the officers, employees, advisors and other Representatives of the Company and its Subsidiaries to use reasonable best efforts to, provide to Purchaser and shall use reasonable best efforts to cause Merger Sub (and Xx. Xxxxxxxxx is hereby authorized in his capacity as an officer of the Company Subsidiaries and its and their respective Representatives to, in each case at Buyer’s sole expense, provide to Buyer such provide) all cooperation reasonably requested by Buyer that is reasonably necessary Purchaser in arranging, obtaining and syndicating connection with Purchaser’s efforts to obtain financing for the Debt Financing, if any (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the operations of the Group Companies)Merger, including as promptly as (i) to the extent reasonably practicalavailable to the Company, (a) furnishing Buyer with the Required Financial Information Purchaser and prospective providers and arrangers of financing financial and other pertinent information regarding the Group Companies Company and its Subsidiaries as may be reasonably requested by Buyer for the completion of the Debt FinancingPurchaser, (bii) participating in telephonic meetings and otherwise reasonably assisting with the preparation a reasonable number of appropriate and customary materials customary presentationsmeetings, due diligence sessions (including accounting due diligence sessions) and drafting sessions with rating agencies in connection with potential financing for the Debt Financing Merger at times and in locations reasonably acceptable to the Company and to the extent customary and reasonable and customary for financings not unreasonably interfering with the business of such typethe Company, (ciii) reviewing, as reasonably requested by Purchaser, rating agency presentations and lender information memoranda relating to potential financing, (iv) reasonably assisting in cooperating with the preparation marketing efforts of (i) customary bank information memoranda, lender Purchaser and investor presentations, offering documents, offering the potential arrangers or private placement memoranda and other similar marketing documents and due diligence efforts providers of financing for the Debt Financing Merger, (v) providing and executing documents as may be reasonably requested by Purchaser, including (iiA) customary authorization letters and representation letters, each as required confirmations in connection with marketing materials for the Debt Financingfinancing, authorizing (B) to the distribution extent available, documents relating to the repayment of information the existing indebtedness of the Company and its Subsidiaries and the release of related liens, including customary payoff letters, and (C) agreements, documents or certificates (including insurance) that facilitate the creation, perfection or enforcement of liens securing the financing as requested by Purchaser or the providers or arrangers of prospective financing, in each case in form and substance reasonably satisfactory to prospective lenders and containing a representation Purchaser; provided that no obligation of the public side of such documents, if any, do not include any information about any Group Company or any securities of its Subsidiaries under any Group Company that would constitute material non-public information within such agreements or documents shall be effective until the meaning of the United States federal and state securities laws if any Group Company were a public reporting companyEffective Time, (dvi) using reasonable best efforts to cause cooperate with the Company’s independent registered accounting firm to provide customary assistance, including (i) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) in connection with any capital markets transaction comprising a part due diligence investigation of the Debt Financingprospective arrangers and providers of financing, (iivii) providing customary consents using reasonable best efforts to the inclusion of their audit report in respect of any financial statements of the Company satisfy on a timely basis all conditions to funding that are applicable to Purchaser and the Company Subsidiaries in any offering documents relating to the Debt Financing and (iii) reasonable assistance and cooperation to Buyer its Affiliates with respect to any auditor due diligenceFinancing Commitment, (eviii) subject if reasonably requested in writing at least ten (10) Business Days prior to and conditioned on the occurrence of the Closing, the taking of customary corporate actions reasonably necessary to permit the consummation of and funding of the Debt Financing, (f) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth in any definitive document relating to the Debt Financing to the extent satisfaction of such condition requires the cooperation of, or is within the control of, the Group Companies, (g) delivering to Buyer providing at least three (3) Business Days prior to the Closing Closing, and as reasonably requested by Purchaser, all such documentation and other information as is reasonably requested in writing by Buyer at least ten (10) Business Days prior with respect to the Closing to Company, the extent Company’s Subsidiaries and their respective Affiliates that any lender has determined is required by U.S. regulatory authorities under in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act ACT, Title III of Pub. L. 107-56 (signed into law October 26, 2001), (ix) if applicable, cooperating in the prepayment and termination of any existing indebtedness of the Company or its Subsidiaries, the termination of all guaranties and security interests in connection therewith and the requirements of 31 C.F.R. §1010.230, (h) facilitating and assisting in the preparation and delivery of any credit agreementscustomary payoff letters, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents relating lien releases and termination documentation with respect to the Debt Financing relating to the Group Companies, and their respective businesses to be included in the definitive documents relating to the Debt Financing, and assist with the execution and delivery of the sameforegoing, in each casecase reasonably satisfactory to Purchaser, solely (x) providing a certificate of the chief financial officer or other senior financial officer of the Company with respect to solvency matters as of the Closing, and (xi) using reasonable best efforts to obtain accountant’s comfort letters and legal opinions reasonably requested by Purchaser or the arranges or providers of financing; provided, however, that, (A) irrespective of the above, no obligation of the Company or any of its Subsidiaries under any such certificate, document or instrument (other than the authorization and representation letters referred to above) shall be effective until the Effective Time and none of the Company or any of its Subsidiaries shall be required to take any action under any such certificate, document or instrument that is not contingent upon the Closing (including the entry into any agreement that is effective before the Effective Time) or that would be effective prior to the Effective Time, and (B) nothing herein shall require such cooperation to the extent reasonable it would interfere unreasonably with the business or operations of the Company or its Subsidiaries. The Company hereby consents to the use of its and customary for financings of such type, (i) cooperating with internal and external counsel of Buyer its Subsidiaries’ logos in connection with providing customary back-up certificates and factual information regarding any legal opinion that such counsel may be required to deliver prospective financing in connection with the Debt Financing, in each case, solely to the extent reasonable and customary for financings of such type, and (j) obtaining and providing documents to Buyer (including draft payoff letters) relating to the repayment of the Indebtedness and the release of related guarantees and Liens in accordance with the terms of this Agreement. The Company hereby consents, on behalf of itself and the Group Companies, to the use of the logos of the Group Companies in connection with the Debt FinancingMerger; provided that such logos are shall be used solely in a manner that is not intended to, nor is or reasonably likely toto harm, harm or disparage the Company’s or any of its Affiliates’ reputation or goodwill.
8.11.2. Notwithstanding anything in this Agreement to the contrary, (a) no Group Company nor any of their respective Representatives shall be required, under the provisions of this Section 8.11 or otherwise in connection with the Debt Financing, to pay any commitment or other similar fee or enter into any binding agreement (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) or commitment or incur any other actual or potential liability or obligation in connection with the Debt Financing prior to the Closing that is not advanced by Buyer, (b) no Group Company or any of their respective Representatives, managers, officers or employees shall be required to execute or enter into, perform or authorize any agreement with respect to the Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) that is not contingent upon the Closing or that would be effective prior to the Closing Date, (c) no Representative, manager, officer or employee of any Group Company shall be required to deliver any certificate or take any other action pursuant to this Section 8.11 to the extent any such action would reasonably be expected to result in personal liability to such Representative, manager, officer or employee, (d) no Group Company or their respective Representatives shall be required to take any action that would reasonably be expected, in the reasonable judgment of the Company, to conflict with, or result in any violation or breach of, any applicable Laws, any organizational documents of any Group Company, any contract or obligations of confidentiality (not created in contemplation hereof) binding on any Group Company, (e) no Group Company or any of their respective Representatives shall be required to take any action that would cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement, (f) no Group Company or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, the Company has, in its good faith, determined is not true, (g) no Group Companies or their respective Representatives shall be required to provide, and the Buyer will be solely responsible for the preparation of: (1) pro forma financial information; (2) any description of all or any component of the Debt Financing; or (3) projections, risk factors or other forward-looking statements relating to all or any component of the Debt Financing; and (h) no Group Company shall be required to provide access to or disclose information that the Company determines would jeopardize any attorney–client privilege or other similar privilege of adversely affect the Company or any of its Subsidiaries. Promptly upon request by the Company, Xxxxx will reimburse the Company for any reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Company, the Company Subsidiaries or any of their Representatives in connection with the cooperation of the Company, the Company Subsidiaries and their Representatives contemplated by this Section 8.11. Except in the case of fraud or a breach of this Agreement, Buyer shall indemnify, defend, and hold harmless the Group Companies and their respective Representatives from and against any and all losses, damages, awards, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecution, investigation, defense or settlement of any of the foregoing) and other amounts suffered or incurred by them in connection with (i) any action taken by them at the request of Buyer pursuant to this Section 8.11 or in connection with the arrangement of the Debt Financing or (ii) any information utilized in connection therewith, and the foregoing obligations shall survive termination of this Agreement and the occurrence of the Closing. In addition, no action, liability or obligation of the Company, any of the Company Subsidiaries or any of their respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to any Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) will be effective until the Closing Date. All material, non-public information regarding the Group Companies provided to Buyer or any of its Representatives pursuant to this Section 8.11 shall be kept confidential by them in accordance with the Confidentiality Agreement except for disclosure to potential investors as required in connection with the Debt Financing subject to customary confidentiality protections. Notwithstanding anything to the contrary, the Company shall be deemed to have complied with this Section 8.11 for all purposes of this Agreement (including Article 6 and Article 7) unless the Debt Financing has not been obtained primarily as a result of the Company’s Willful Breach of its obligations under this Section 8.11. Notwithstanding anything herein to the contrary, Xxxxx acknowledges and agrees that obtaining any Debt Financing is not a condition to the Closing.
Appears in 1 contract
Financing Cooperation. 8.11.1. Buyer may determine(a) Prior to the Effective Time, the Company shall and shall cause its subsidiaries to, at Parent’s sole expense, cooperate, and shall use its commercially reasonable efforts to cause its respective officers, employees, representatives, auditors, and advisors, including legal and accounting advisors, to cooperate, in its sole discretion, to obtain debt financing to fund any portion of connection with the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (x) provide Seller and the Company with written notice that such Debt Financing has been obtained and (y) deliver (or cause to be delivered) to Seller and the Company true, correct and complete copies of all arrangements pursuant to which any Financing Parties shall have committed to provide any portion arrangement of the Debt Financing; provided that any fee letters , as may be redacted in a customary manner; provided further that, in no event shall the receipt of such Debt Financing be a condition to Closing and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. Prior to the Closing, subject to Section 8.11.2, the Company shall use reasonable best efforts to, and shall use reasonable best efforts to cause the Company Subsidiaries and its and their respective Representatives to, in each case at Buyer’s sole expense, provide to Buyer such cooperation reasonably requested by Buyer that is reasonably necessary in arranging, obtaining and syndicating the Debt Financing, if any Parent (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the ongoing operations of business of the Group CompaniesCompany and its subsidiaries), including including: (i) participation in meetings, drafting sessions, rating agency presentations, due diligence sessions, and “road show” and other customary marketing presentations; (ii) furnishing in writing -59- any Financing Sources as promptly as reasonably practical, (a) furnishing Buyer practicable with the Required Financial Information and other pertinent information regarding the Group Companies Company and its subsidiaries as may be is reasonably requested by Buyer for the completion of in connection with the Debt Financing, including such business or other financial data of the type that would be required in a registered offering by Regulation S-X or Regulation S-K under the Securities Act (bother than Rule 3-09, Rule 3-10 or Rule 3-16 of Regulation S-X, segment reporting and information regarding executive compensation and certain related party disclosure related to SEC Release Nos. 33-8732A, 34-54302A and IC-27444A and other customary exceptions; (iii) participating assisting any Financing Sources in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and (A) one or more customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies offering documents and/or information 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, subject to consummation of the Merger; (v) taking all reasonably required corporate actions, subject to the consummation of the Merger, to permit the consummation of the Debt Financing; (vi) providing customary authorization letters to any Financing Sources authorizing the distribution of information to prospective Financing Sources and containing a customary representation to the arranger of any financing that the information contained in any offering document or information memorandum relating to the 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 reasonable customary and customary reasonable; (viii) furnishing such information and data related to the Company and its Subsidiaries as is reasonably required by Parent for financings Parent to produce the pro forma financial statements required in a registered offering of such typedebt securities by Regulation S-X under the Securities Act, (c) reasonably assisting in the preparation of (i) customary bank information memoranda, lender and investor presentations, offering documents, offering or private placement memoranda and other similar marketing documents and due diligence efforts for the Debt Financing and (ii) customary authorization and representation letters, each as otherwise required in connection with the Debt Financing, authorizing the distribution of information to prospective lenders and containing a representation that the public side of such documents, if any, do not include any information about any Group Company or any securities of any Group Company that would constitute material non-public information within the meaning of the United States federal and state securities laws if any Group Company were a public reporting company, ; (dix) using commercially reasonable best efforts in assisting Parent in its efforts to cause the Company’s independent registered accounting firm to provide customary assistance, including (i) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) in connection with any capital markets transaction comprising a part obtain corporate credit or family ratings of the Debt Financing, (ii) providing customary consents Parent to the inclusion extent reasonably requested by Parent; (x) obtaining customary payoff letters, lien terminations and instruments of their audit report discharge in respect of any the payoff, discharge and termination of the Effective Date of all obligations under the Credit Agreement, including releases of liens relating thereto, and in each case as reasonably requested by Parent and (xi) furnishing Parent and Financing Sources with historical financial statements of the Company and its subsidiaries needed to satisfy the condition set forth in clause (h) of Exhibit C of the Debt Commitment Letter. Parent shall, promptly upon termination of this Agreement, reimburse the Company Subsidiaries for all reasonable out-of-pocket expenses and costs incurred in any offering documents relating connection with the Company’s or its Affiliates’ obligations under this Section 7.11.
(b) In addition, prior to the Debt Financing Effective Time, upon request by Parent from time to time, and, at the Parent’s sole expense, the Company shall: (i) use its commercially reasonable efforts to cause Ernst & Young LLP, independent accountants of the Company, to provide a letter or letters containing statements and (iii) reasonable assistance and cooperation information of the type customarily included in accountants’ “comfort letters” to Buyer underwriters with respect to any auditor due diligence, (e) subject to financial statements and conditioned on the occurrence of the Closing, the taking of customary corporate actions reasonably necessary to permit the consummation of and funding of the Debt Financing, (f) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth in any definitive document relating to the Debt Financing to the extent satisfaction of such condition requires the cooperation of, or is within the control of, the Group Companies, (g) delivering to Buyer at least three (3) Business Days prior to the Closing all such documentation and certain financial information as is reasonably requested in writing by Buyer at least ten (10) Business Days prior to the Closing to the extent required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act and the requirements of 31 C.F.R. §1010.230, (h) facilitating and assisting in the preparation and delivery of any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents relating to the Debt Financing relating to the Group Companies, and their respective businesses to be included in the definitive documents relating to the Debt Financing, and assist with the execution and delivery of the same, in each case, solely to the extent reasonable and customary for financings of such type, (i) cooperating with internal and external counsel of Buyer in connection with providing customary back-up certificates and factual information regarding any legal opinion that such counsel may be required to deliver used in connection with the Debt FinancingFinancing (including “negative assurance” comfort); (ii) use its reasonable best efforts to provide customary representation letters and other authorizations or information to Ernst & Young LLP, to enable them to provide the foregoing “comfort letters”; (iii) use its reasonable best efforts to obtain the consent of Ernst & Young LLP for the inclusion of its reports on the Company in each case, solely to the extent reasonable and customary for financings of such type, and (j) obtaining and providing any document or documents to Buyer (including draft payoff letters) relating to the repayment of the Indebtedness and the release of related guarantees and Liens in accordance with the terms of this Agreement. The Company hereby consents, on behalf of itself and the Group Companies, to the use of the logos of the Group Companies be used in connection with the Debt Financing; provided that such logos are used solely in a manner that is not intended toand (iv) cause the appropriate representatives of the Company to execute and deliver -60- any Financing Documents or other certificates or documents as may be reasonably requested by Parent for delivery at the consummation of the Debt Financing, nor is reasonably likely to, harm or disparage subject to the Company’s or any consummation of its Affiliates’ reputation or goodwillthe Merger.
8.11.2. (c) Notwithstanding anything in this Agreement to the contrary, (a) no Group neither the Company nor any of their respective Representatives its Subsidiaries shall be required, under the provisions of this Section 8.11 or otherwise in connection with the Debt Financing, required to pay any commitment or other similar fee or enter into any binding definitive agreement (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) or commitment or incur any other actual or potential liability or of obligation in connection with the Debt Financing (or any alternative financing) prior to the Closing that is not advanced by Buyer, (b) no Group Company or any of their respective Representatives, managers, officers or employees shall be required to execute or enter into, perform or authorize any agreement with respect to the Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) that is not contingent upon the Closing or that would be effective prior to the Closing Date, (c) no Representative, manager, officer or employee of any Group Company shall be required to deliver any certificate or take any other action pursuant to this Section 8.11 to the extent any such action would reasonably be expected to result in personal liability to such Representative, manager, officer or employee, (d) no Group Company or their respective Representatives shall be required to take any action that would reasonably be expected, in the reasonable judgment of the Company, to conflict with, or result in any violation or breach of, any applicable Laws, any organizational documents of any Group Company, any contract or obligations of confidentiality (not created in contemplation hereof) binding on any Group Company, (e) no Group Company or any of their respective Representatives shall be required to take any action that would cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement, (f) no Group Company or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, the Company has, in its good faith, determined is not true, (g) no Group Companies or their respective Representatives shall be required to provide, and the Buyer will be solely responsible for the preparation of: (1) pro forma financial information; (2) any description of all or any component of the Debt Financing; or (3) projections, risk factors or other forward-looking statements relating to all or any component of the Debt Financing; and (h) no Group Company shall be required to provide access to or disclose information that the Company determines would jeopardize any attorney–client privilege or other similar privilege of the Company or any of its Subsidiaries. Promptly upon request by the Company, Xxxxx will reimburse the Company for any reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Company, the Company Subsidiaries or any of their Representatives in connection with the cooperation of the Company, the Company Subsidiaries and their Representatives contemplated by this Section 8.11. Except in the case of fraud or a breach of this Agreement, Buyer shall indemnify, defend, and hold harmless the Group Companies and their respective Representatives from and against any and all losses, damages, awards, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecution, investigation, defense or settlement of any of the foregoing) and other amounts suffered or incurred by them in connection with (i) any action taken by them at the request of Buyer pursuant to this Section 8.11 or in connection with the arrangement of the Debt Financing or (ii) any information utilized in connection therewith, and the foregoing obligations shall survive termination of this Agreement and the occurrence of the Closing. In addition, no action, liability or obligation of the Company, any of the Company Subsidiaries or any of their respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to any Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) will be effective until the Closing Date. All material, non-public information regarding the Group Companies provided to Buyer or any of its Representatives pursuant to this Section 8.11 shall be kept confidential by them in accordance with the Confidentiality Agreement except for disclosure to potential investors as required in connection with the Debt Financing subject to customary confidentiality protections. Notwithstanding anything to the contrary, the Company shall be deemed to have complied with this Section 8.11 for all purposes of this Agreement (including Article 6 and Article 7) unless the Debt Financing has not been obtained primarily as a result of the Company’s Willful Breach of its obligations under this Section 8.11. Notwithstanding anything herein to the contrary, Xxxxx acknowledges and agrees that obtaining any Debt Financing is not a condition to the ClosingEffective Time.
Appears in 1 contract
Financing Cooperation. 8.11.1. Buyer may determine(a) From the date of this Agreement until the Closing (or the earlier termination of this Agreement pursuant to Article VIII), subject to the limitations set forth in its sole discretionthis Section 5.13, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (x) provide Seller Company and the Company Contributor Group will use its and their reasonable best efforts to cooperate with written notice that such Debt Financing has been obtained Investor as reasonably requested by Investor in connection with Investor’s arrangement, syndication and (y) deliver (or cause to be delivered) to Seller and the Company true, correct and complete copies of all arrangements pursuant to which any Financing Parties shall have committed to provide any portion consummation of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further that, in no event shall the receipt of nothing herein will require such Debt Financing be a condition to Closing and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. Prior cooperation to the Closingextent it interferes, subject or would reasonably be expected to Section 8.11.2interfere, with the Business or operations of the Company or the Contributor Group. Such cooperation shall use reasonable best efforts to, and shall use be limited to using reasonable best efforts to cause (i) make appropriate officers reasonably available for participation in a reasonable number of meetings (including lender meetings (which may be virtual at the Company Subsidiaries option of the Company)) and its calls, drafting sessions, rating agency presentations and their respective Representatives toroad shows, due diligence sessions and sessions with prospective lenders, investors and ratings agencies, in each case case, upon reasonable advance notice and at Buyer’s sole expense, provide to Buyer such cooperation reasonably requested by Buyer that is reasonably necessary mutually agreeable dates and times and which may take place via conference call or video conference in arranging, obtaining and syndicating the Debt Financing, if any (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the operations lieu of the Group Companies), including as promptly as reasonably practicalin-person meetings, (aii) furnishing Buyer with provide reasonable assistance in the Required Financial Information preparation of a customary and other pertinent information regarding the Group Companies appropriate offering memoranda, private placement memoranda, rating agency presentations, prospectuses and similar documents as may be reasonably requested by Buyer Investor or any Debt Financing Source, in each case, solely with respect to information relating to the Company Group, (iii) furnish Investor and its Financing Sources with copies of the historical financial statements required pursuant to Section 3.5(a) and such other customary financial information with respect to the Company Group prepared by the Contributors in the Ordinary Course of Business as is reasonably requested by Investor or any Debt Financing Source and is customarily required for debt financings similar to the completion Debt Financing; provided, that, nothing in this Agreement will require the Contributors to cause the delivery of: (A) any financial information in a form not customarily prepared by the Contributors with respect to a particular period (including any pro forma financial information or audited financial statements, for which the Contributors shall have no responsibility) or (B) any financial information with respect to a month or fiscal period that has not yet ended or has ended less than 45 days before the date of such request, (iv) cooperate with reasonable diligence requests of the Debt FinancingFinancing Sources, (b) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies in connection with the Debt Financing to the extent reasonable and customary for financings of such type, (cv) reasonably assisting assist in the preparation of (i) customary bank information memorandaone or more credit agreements, lender and investor presentationsindentures, offering note purchase agreements, pledge documents, offering or private placement memoranda disclosure schedules and other similar marketing definitive financing documentation, including obtaining releases of existing Encumbrances (to the extent required by this Agreement), in each case reasonably requested by Investor; provided, that, any obligations and releases of Encumbrances contained in all such agreements, documents and due diligence efforts for the Debt Financing related certificates and (ii) customary authorization and representation letters, each as required in connection with the Debt Financing, authorizing the distribution of information to prospective lenders and containing a representation that the public side of such documents, if any, do not include any information about any Group Company or any securities of any Group Company that would constitute material non-public information within the meaning of the United States federal and state securities laws if any Group Company were a public reporting company, (d) using reasonable best efforts to cause the Company’s independent registered accounting firm to provide customary assistance, including (i) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) in connection with any capital markets transaction comprising a part of the Debt Financing, (ii) providing customary consents to the inclusion of their audit report in respect of any financial statements of the Company and the Company Subsidiaries in any offering documents relating to the Debt Financing and (iii) reasonable assistance and cooperation to Buyer with respect to any auditor due diligence, (e) instruments shall be subject to and conditioned on the occurrence of the Closing and become effective no earlier than the Closing, the taking of customary corporate actions reasonably necessary to permit the consummation of and funding of the (vi) furnish Investor and its Debt Financing, Financing Sources promptly (f) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth and in any definitive document relating to the Debt Financing to the extent satisfaction of such condition requires the cooperation of, or is within the control of, the Group Companies, (g) delivering to Buyer event at least three (3) five Business Days prior to the Closing Date) with all such documentation and other information as is reasonably requested in writing by Buyer at least ten (10) Business Days prior to the Closing to the extent required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act Act, and the requirements of 31 C.F.R. §1010.230, (h) facilitating and assisting in the preparation and delivery of any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents relating to requested by the Debt Financing relating Sources in writing at least 10 Business Days prior to the Group Companies, and their respective businesses to be included in the definitive documents relating to the Debt Financing, and assist with the execution and delivery of the same, in each case, solely to the extent reasonable and customary for financings of such type, (i) cooperating with internal and external counsel of Buyer 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 Debt Financing, in each case, solely to the extent reasonable and customary for financings of such type, and (j) obtaining and providing documents to Buyer (including draft payoff letters) relating to the repayment of the Indebtedness and the release of related guarantees and Liens in accordance with the terms of this AgreementClosing Date. The Company Contributors hereby consents, on behalf of itself and the Group Companies, consent to the use of the their and their Subsidiaries’ logos of the Group Companies in connection with the Debt Financing; provided that provided, that, such logos are used solely in a manner that is not intended tointended, nor is or reasonably likely tolikely, to harm or disparage the Company’s Contributor Group or the Company Group or the reputation or goodwill of any of its Affiliates’ reputation or goodwillthem.
8.11.2. (b) Notwithstanding Section 5.13(a) or anything else in this Agreement to Agreement:
(i) neither any member of the contrary, (a) no Company Group Company nor any member of their respective Representatives shall be required, under the provisions of this Section 8.11 Contributor Group will have any liability or otherwise in connection with the Debt Financing, obligation (including any liability or obligation to pay any commitment or other similar fee fee) under any certificate, document or enter into instrument related to the Financing;
(ii) neither any binding agreement (other than the execution member of the authorization letters referred Company Group nor any member of the Contributor Group will be required to in clause (c)(ii) of Section 8.11.1) issue any prospectus, information memorandum, “bank book” or commitment or incur any other actual or potential liability or obligation analogous document in connection with the Debt Financing prior Financing;
(iii) in no event will any member of the Company Group nor any member of the Contributor Group (or their respective officers, directors, partners, members, managers or employees) be required to the Closing that is not advanced by Buyerpay any commitment fee or other fee or payment to obtain consent, (b) no Group Company or to incur any liability with respect to, or cause or permit any Encumbrance to be placed on any of their respective Representativesassets in connection with, managers, officers or employees a Debt Financing;
(iv) neither any member of the Company Group nor any member of the Contributor Group shall be required to execute reimburse any expenses or enter into, perform or authorize provide any agreement with respect indemnities relating to the Debt Financing Financing;
(other than the execution v) neither any member of the authorization letters referred to in clause (c)(ii) Company Group nor any member of Section 8.11.1) that is not contingent upon the Closing or that would be effective prior to the Closing Date, (c) no Representative, manager, officer or employee of any Contributor Group Company shall be required to deliver authorize or execute any certificate definitive documentation or any other agreement, certificate, document, or instrument related to the Debt Financing;
(vi) neither any member of the Company Group nor any member of the Contributor Group shall be required to cause any director, officer, partner, member, manager, or employee of the Company or any member of the Contributor Group to incur any personal liability (including that none of the boards of directors (or equivalent bodies) of any member of the Company Group or any member of the Contributor Group shall be required to adopt any resolutions or take similar action approving the Debt Financing);
(vii) neither any other member of the Company Group nor any member of the Contributor Group shall be required to (A) take any action pursuant to this Section 8.11 to the extent any such action would that could reasonably be expected to result in personal liability the material contravention of, or that could reasonably be expected to such Representativeresult in a material violation or breach of, manageror a default under, officer any of the Organizational Documents of any member of the Company Group or employeeany member of the Contributor Group, material contractual obligations or any Laws or (dB) no provide access to or disclose information that the Contributors reasonably determine could jeopardize any attorney client privilege of the Company Group or the Contributor Group;
(viii) neither any member of the Company or their respective Representatives Group nor any member of the Contributor Group shall be required to take any action that would could reasonably be expected, expected to interfere in any material respect with the reasonable judgment Business or operations of the Company, Company Group or the Contributor Group;
(ix) neither any member of the Company Group nor any member of the Contributor Group shall be required to conflict with, deliver or result in any violation or breach of, any applicable Laws, any organizational documents cause the delivery of any legal opinions or accountants’ cold comfort letters or reliance letters or any certificate as to solvency or any other certificate necessary for the Debt Financing;
(x) neither any member of the Company Group Companynor any member of the Contributor Group shall be required to be an issuer or other obligor with respect to the Debt Financing or other financing; and
(xi) nothing herein shall require cooperation or other actions or efforts on the part of any member of the Company Group nor any member of the Contributor Group, any contract or obligations of confidentiality (not created in contemplation hereof) binding on any Group Company, (e) no Group Company or any of their Affiliates or respective Representatives shall directors, officers, employees or agents, in connection with the Debt Financing to the extent that it would cause any representation or warranty or covenant in this Agreement to be required to take any action that breached by the Contributors or would cause any condition to the Closing set forth herein to not fail to be satisfied or otherwise cause any breach of this Agreementsatisfied.
(c) Investor will promptly, (f) no Group Company or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, the Company has, in its good faith, determined is not true, (g) no Group Companies or their respective Representatives shall be required to provide, and the Buyer will be solely responsible for the preparation of: (1) pro forma financial information; (2) any description of all or any component of the Debt Financing; or (3) projections, risk factors or other forward-looking statements relating to all or any component of the Debt Financing; and (h) no Group Company shall be required to provide access to or disclose information that the Company determines would jeopardize any attorney–client privilege or other similar privilege of the Company or any of its Subsidiaries. Promptly upon request by the Contributors or the Company, Xxxxx will reimburse the Company Contributors or the Company, as applicable, for any all reasonable out-of-pocket fees, costs and expenses (including reasonable attorneys’ feesfees and expenses of Representatives) incurred by the Company, Company Group and the Company Subsidiaries or any of Contributor Group and their respective Representatives in connection with the cooperation of their compliance with this Section 5.13 and will indemnify and hold harmless the Company, the Company Subsidiaries and their Representatives contemplated by this Section 8.11. Except in the case of fraud or a breach of this Agreement, Buyer shall indemnify, defend, and hold harmless the Contributor Group Companies and their respective Affiliates and Representatives from and against any and all losses, damages, awardsclaims, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, costs or expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecution, investigation, defense or settlement of any of the foregoing) and other amounts suffered or incurred by any of them in connection with (i) any action taken by them at the request of Buyer pursuant to this Section 8.11 or in connection with the arrangement of the Debt Financing or (ii) and any information utilized used in connection therewith.
(d) Notwithstanding this Section 5.13 or anything else in this Agreement, and Investor affirms that it is not a condition to the foregoing Closing or to any of its other obligations shall survive termination of under this Agreement and the occurrence of the Closing. In addition, no action, liability that Investor obtain financing for or obligation of the Company, related to any of the Transactions (including all or any portion of the Financing). The condition set forth in Section 7.2(b) shall not apply to the obligations of the Contributors and the Company Subsidiaries set forth in this Section 5.13, and any failure by the Contributors or the Company to perform any of their respective Representatives pursuant to any certificate, agreement, arrangement, document obligations set forth in this Section 5.13 shall not be a breach or instrument relating to any Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) violation of Section 8.11.1) will be effective until the Closing Date. All material7.2(b), non-public information regarding the Group Companies provided to Buyer or any of its Representatives pursuant to this Section 8.11 shall be kept confidential by them in accordance with the Confidentiality Agreement except for disclosure to potential investors as required in connection with the Debt Financing subject to customary confidentiality protections. Notwithstanding anything to the contrary, the Company shall be deemed to have complied with this Section 8.11 for all purposes of this Agreement (including Article 6 and Article 7) unless the Debt Financing has not been obtained by Investor primarily as a result of an action or omission taken or omitted to be taken by the Company’s Willful Breach Contributors or the Company in material and willful breach of its their respective obligations under this Section 8.11. Notwithstanding anything herein 5.13 (which has not been promptly remedied by the Contributors or the Company prior to the contraryClosing Date, Xxxxx acknowledges and agrees following notice by Investor that obtaining any such action or omission could result in a failure to obtain such Debt Financing is not a condition or to comply with the Closingterms of this Section 5.13).
Appears in 1 contract
Samples: Contribution Agreement (EQT Corp)
Financing Cooperation. 8.11.1. Buyer may determineThe Acquired Companies agree, in its sole discretionand agree to cause their respective Affiliates, to obtain debt financing use their commercially reasonable efforts to fund any portion of provide such assistance (and to cause their respective personnel and advisors to provide such assistance) with the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing as is obtained reasonably requested by Buyer. Such commercially reasonable efforts shall include, but not be limited to, (xi) provide Seller participation in, and the Company with written notice that such Debt Financing has been obtained and (y) deliver (or cause assistance with, any marketing efforts related to be delivered) to Seller and the Company true, correct and complete copies of all arrangements pursuant to which any Financing Parties shall have committed to provide any portion of the Debt Financing; provided that any fee letters may be redacted in a customary manner(ii) participation by senior management of the Acquired Companies in, and assistance with, the preparation of rating agency presentations, lender presentations and bank information memoranda, and meetings with rating agencies; provided further that, in no event shall and (iii) delivery to Buyer of the receipt of such Debt Financing Deliverables (it being understood for the avoidance of doubt that the Acquired Companies shall only be a condition required to Closing and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. Prior to the Closing, subject to Section 8.11.2, the Company shall use commercially reasonable best efforts to, and shall use reasonable best efforts to cause deliver the Company Subsidiaries Debt Financing Deliverables); and its and their respective Representatives to, in each case at Buyer’s sole expense, provide to Buyer (iv) taking such cooperation actions as are reasonably requested by Buyer that is reasonably necessary in arranging, to facilitate the satisfaction on a timely basis of all conditions precedent to obtaining and syndicating the Debt Financing, if any (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the operations of the Group Companies), including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies as may be reasonably requested by Buyer for the completion of the Debt Financing, (b) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies in connection with the Debt Financing to the extent reasonable and customary for financings of such type, (c) reasonably assisting in the preparation of (i) customary bank information memoranda, lender and investor presentations, offering documents, offering or private placement memoranda and other similar marketing documents and due diligence efforts for the Debt Financing and (ii) customary authorization and representation letters, each as required in connection with the Debt Financing, authorizing the distribution of information to prospective lenders and containing a representation that the public side of such documents, if any, do not include any information about any Group Company or any securities of any Group Company that would constitute material non-public information within the meaning of the United States federal and state securities laws if any Group Company were a public reporting company, (d) using reasonable best efforts to cause the Company’s independent registered accounting firm to provide customary assistance, including (i) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) in connection with any capital markets transaction comprising a part of the Debt Financing, (ii) providing customary consents to the inclusion of their audit report in respect of any financial statements of the Company and the Company Subsidiaries in any offering documents relating to the Debt Financing and (iii) reasonable assistance and cooperation to Buyer with respect to any auditor due diligence, (e) subject to and conditioned on the occurrence of the Closing, the taking of customary corporate actions reasonably necessary to permit the consummation of and funding of the Debt Financing, (f) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth in any definitive document relating to the Debt Financing to the extent satisfaction of such condition requires the cooperation of, or is are within the control of, the Group Companies, (g) delivering to Buyer at least three (3) Business Days prior to the Closing all such documentation and information as is reasonably requested in writing by Buyer at least ten (10) Business Days prior to the Closing to the extent required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act and the requirements of 31 C.F.R. §1010.230, (h) facilitating and assisting in the preparation and delivery of any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents relating to the Debt Financing relating to the Group Companies, and their respective businesses to be included in the definitive documents relating to the Debt Financing, and assist with the execution and delivery of the same, in each case, solely to the extent reasonable and customary for financings of such type, (i) cooperating with internal and external counsel of Buyer 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 Debt Financing, in each case, solely to the extent reasonable and customary for financings of such type, and (j) obtaining and providing documents to Buyer (including draft payoff letters) relating to the repayment of the Indebtedness and the release of related guarantees and Liens in accordance with the terms of this AgreementAcquired Companies. The Company Acquired Companies hereby consents, on behalf of itself and the Group Companies, consent to the use of the all of their and their respective subsidiaries’ logos of the Group Companies in connection with the Debt Financing; provided that such logos are used solely in a manner that is not intended to, nor is to or reasonably likely to, to harm or disparage the Company’s Acquired Companies or any of its Affiliates’ their reputation or goodwill.
8.11.2. Notwithstanding anything any other provision set forth herein or in this Agreement to any other agreement between Acquired Companies and Buyer (or their respective Affiliates), the contrary, Acquired Companies (a) no Group Company nor any on their behalf and on behalf of their respective Representatives shall be requiredAffiliates) agree that Buyer and its Affiliates may share non-public or confidential information regarding the Acquired Companies and their businesses with the financing sources identified in the Debt Engagement Letter and the Debt Financing Amendment, under the provisions of this Section 8.11 or otherwise and that Buyer, its Affiliates and such financing sources may share such information with potential financing sources in connection with any marketing efforts (including any syndication) in connection with the Debt Financing, to pay any commitment or other similar fee or enter into any binding agreement (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) or commitment or incur any other actual or potential liability or obligation in connection with the Debt Financing prior to the Closing that is not advanced by Buyer, (b) no Group Company or any of their respective Representatives, managers, officers or employees shall be required to execute or enter into, perform or authorize any agreement with respect to the Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) that is not contingent upon the Closing or that would be effective prior to the Closing Date, (c) no Representative, manager, officer or employee of any Group Company shall be required to deliver any certificate or take any other action pursuant to this Section 8.11 to the extent any such action would reasonably be expected to result in personal liability to such Representative, manager, officer or employee, (d) no Group Company or their respective Representatives shall be required to take any action that would reasonably be expected, in the reasonable judgment of the Company, to conflict with, or result in any violation or breach of, any applicable Laws, any organizational documents of any Group Company, any contract or obligations of confidentiality (not created in contemplation hereof) binding on any Group Company, (e) no Group Company or any of their respective Representatives shall be required to take any action that would cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement, (f) no Group Company or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, the Company has, in its good faith, determined is not true, (g) no Group Companies or their respective Representatives shall be required to provide, and the Buyer will be solely responsible for the preparation of: (1) pro forma financial information; (2) any description of all or any component of the Debt Available Financing; or (3) projections, risk factors or other forward-looking statements relating to all or any component of the Debt Financing; and (h) no Group Company shall be required to provide access to or disclose information provided that the Company determines would jeopardize any attorney–client privilege or other similar privilege recipients of the Company or any of its Subsidiaries. Promptly upon request by the Company, Xxxxx will reimburse the Company for any reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Company, the Company Subsidiaries or any of their Representatives in connection with the cooperation of the Company, the Company Subsidiaries and their Representatives contemplated by this Section 8.11. Except in the case of fraud or a breach of this Agreement, Buyer shall indemnify, defend, and hold harmless the Group Companies and their respective Representatives from and against any and all losses, damages, awards, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecution, investigation, defense or settlement of any of the foregoing) and other amounts suffered or incurred by them in connection with (i) any action taken by them at the request of Buyer pursuant to this Section 8.11 or in connection with the arrangement of the Debt Financing or (ii) any such information utilized in connection therewith, and the foregoing obligations shall survive termination of this Agreement and the occurrence of the Closing. In addition, no action, liability or obligation of the Company, any of the Company Subsidiaries or any of their respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to any Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) will be effective until the Closing Date. All material, non-public information regarding the Group Companies provided to Buyer or any of its Representatives pursuant to this Section 8.11 shall be kept confidential by them in accordance with the Confidentiality Agreement except for disclosure to potential investors as required in connection with the Debt Financing subject agree to customary confidentiality protectionsarrangements. Notwithstanding anything to the contrarycontrary herein, (i) it is understood and agreed that the Company condition precedent set forth in Section 8.2(b), as applied to the Acquired Companies’ obligations under this Section 7.17, shall be deemed to have complied with this Section 8.11 for all purposes of this Agreement (including Article 6 and Article 7) be satisfied unless the Debt Financing has not been obtained primarily as a result of the Company’s Willful Breach Acquired Companies’ gross negligence, fraud, willful misconduct or material breach of their obligations under this section; and (ii) it is understood and agreed that Buyer's performance of its obligations under this Section 8.11. Notwithstanding anything herein Agreement is expressly not contingent upon the securing of any financing, including the Debt Financing, and that Buyer has no rights to either terminate this Agreement or to extend the contrarydate of Closing as a result of its failure to obtain, Xxxxx acknowledges and agrees that obtaining or any delay in obtaining, any financing, including the Debt Financing is not a condition to the ClosingFinancing.
Appears in 1 contract
Financing Cooperation. 8.11.1. Buyer may determine(a) Prior to the Closing, and during the one hundred twenty (120) day period following the Closing, Parent shall, and shall cause its Subsidiaries and its and their Representatives to, provide to Investor ((x) prior to the Closing, at Investor’s expense (which expense will be subject to reimbursement in its sole discretionaccordance with Section 4.06) and (y) from and after the Closing, to obtain debt financing to fund any portion of at NewCo’s expense) such cooperation as is reasonably requested by Investor in connection with obtaining credit facilities for working capital purposes for the Purchase Price North American Business (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (x) provide Seller and the Company with written notice that such Debt Financing has been obtained and (y) deliver (or cause to be delivered) to Seller and the Company true, correct and complete copies of all arrangements pursuant to which any Financing Parties cooperation shall have committed to provide any portion of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further that, in no event shall the receipt of such Debt Financing be a condition to Closing and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. Prior to the Closing, subject to Section 8.11.2, the Company shall use include using reasonable best efforts to:
(i) participate, upon reasonable notice and shall use reasonable best efforts in a manner that does not materially interfere with normal business operations, in meetings, presentations, due diligence sessions, drafting sessions, sessions with rating agencies and prospective lenders with respect to cause the Company Subsidiaries North America Business;
(ii) provide customary authorization and its representation letters to Debt Financing Sources authorizing the distribution of information with respect to the North America Business to prospective lenders on a confidential basis;
(iii) assist Investor in the preparation of customary rating agency presentations, lender presentations, customary bank offering memoranda, syndication memoranda and their respective Representatives toother marketing materials or memoranda reasonably requested by Investor or Debt Financing Sources, in each case at Buyer’s sole expensecase, provide to Buyer such cooperation reasonably requested by Buyer that is reasonably necessary in arranging, obtaining and syndicating connection with the Debt Financing;
(iv) assist Investor in procuring the execution and delivery, if effective on or after Closing, any (provided that such requested cooperation is consistent with applicable Laws customary credit agreement, notes, guarantees, pledge and does not unreasonably interfere with the operations of the Group Companies)security documents, including as promptly as reasonably practicalcurrency or interest hedging arrangements, (a) furnishing Buyer with the Required Financial Information other definitive financing documents, a customary “borrowing base” certificate, and other pertinent information regarding the Group Companies certificates or documents and back-up therefor and for legal opinions as may be reasonably requested by Buyer Investor or Debt Financing Sources (including consents of accountants for the completion use of their reports in any materials relating to the Debt Financing, (b) participating in telephonic meetings and otherwise reasonably assisting facilitating the pledging of collateral, and the granting of security interests;
(v) cooperate with Investor and Investor’s efforts to obtain customary and reasonable corporate and facilities ratings, surveys and title insurance as reasonably requested by Investor with respect to the preparation Debt Financing;
(vi) cooperate with Investor and Investor’s efforts to permit Debt Financing Sources to conduct audit examinations, appraisals and other evaluations of appropriate the current assets and other collateral, and to evaluate the cash management and accounting systems, policies and procedures of the North American Business for the purpose of establishing collateral arrangements to the extent customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies reasonable and establish bank and other accounts and blocked account agreements and lock box arrangements in connection with the Debt Financing to the extent reasonable foregoing; and
(vii) furnish Investor and customary for financings of such type, (c) reasonably assisting in the preparation of (i) customary bank information memoranda, lender and investor presentations, offering documents, offering or private placement memoranda and other similar marketing documents and due diligence efforts for the Debt Financing Sources promptly with all documentation and (ii) customary authorization other information which any lender providing or arranging the Debt Financing has reasonably requested and representation letters, each as that such lender has determined is required by regulatory authorities in connection with the Debt Financing, authorizing the distribution of information to prospective lenders and containing a representation that the public side of such documents, if any, do not include any information about any Group Company or any securities of any Group Company that would constitute material non-public information within the meaning of the United States federal and state securities laws if any Group Company were a public reporting company, (d) using reasonable best efforts to cause the Company’s independent registered accounting firm to provide customary assistance, including (i) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) in connection with any capital markets transaction comprising a part of the Debt Financing, (ii) providing customary consents to the inclusion of their audit report in respect of any financial statements of the Company and the Company Subsidiaries in any offering documents relating to the Debt Financing and (iii) reasonable assistance and cooperation to Buyer with respect to any auditor due diligence, (e) subject to and conditioned on the occurrence of the Closing, the taking of customary corporate actions reasonably necessary to permit the consummation of and funding of the Debt Financing, (f) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth in any definitive document relating to the Debt Financing to the extent satisfaction of such condition requires the cooperation of, or is within the control of, the Group Companies, (g) delivering to Buyer at least three (3) Business Days prior to the Closing all such documentation and information as is reasonably requested in writing by Buyer at least ten (10) Business Days prior to the Closing to the extent required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act Act; provided, that (A) except as set forth in clause (ii) of this Section 4.23, Parent and the requirements of 31 C.F.R. §1010.230its Subsidiaries shall not be required to execute, (h) facilitating and assisting in the preparation and delivery of prior to Closing, any definitive financing documents, including any credit or other agreements, indenturespledge or security documents, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive certificates, legal opinions or documents relating to the Debt Financing relating to the Group Companies, and their respective businesses to be included in the definitive documents relating to connection with any portion of the Debt Financing, and assist with the execution and delivery of the sameunless such documents, in each caseagreements, solely to the extent reasonable and customary for financings of such type, (i) cooperating with internal and external counsel of Buyer 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 Debt Financing, in each case, solely to the extent reasonable and customary for financings of such type, and (j) obtaining and providing documents to Buyer (including draft payoff letters) relating to the repayment of the Indebtedness and the release of related guarantees and Liens in accordance with the terms of this Agreement. The Company hereby consents, on behalf of itself and the Group Companies, to the use of the logos of the Group Companies in connection with the Debt Financing; provided that such logos are used solely in a manner that is not intended to, nor is reasonably likely to, harm or disparage the Company’s or any of its Affiliates’ reputation or goodwill.
8.11.2. Notwithstanding anything in this Agreement to the contrary, (a) no Group Company nor any of their respective Representatives shall be required, under the provisions of this Section 8.11 or otherwise in connection with the Debt Financing, to pay any commitment or other similar fee or enter into any binding agreement (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) or commitment or incur any other actual or potential liability or obligation in connection with the Debt Financing prior to the Closing that is not advanced by Buyer, (b) no Group Company or any of their respective Representatives, managers, officers or employees shall be required to execute or enter into, perform or authorize any agreement with respect to the Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) that is not contingent upon the Closing or that would opinions will only be effective prior to as of the Closing Date, (cB) no Representativeexcept as expressly provided above, manager, officer or employee of any Group Company Parent and its Subsidiaries shall be required to deliver any certificate or take any other action pursuant to this Section 8.11 to the extent any such action would reasonably be expected to result in personal liability to such Representative, manager, officer or employee, (d) no Group Company or their respective Representatives shall not be required to take any action that would reasonably be expected, in the reasonable judgment of the Company, to conflict with, or result in any violation or breach of, any applicable Laws, any organizational documents of any Group Company, any contract or obligations of confidentiality (not created in contemplation hereof) binding on any Group Company, (e) no Group Company or any of their respective Representatives shall be required to take any action that would cause any condition corporate actions prior to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement, (f) no Group Company or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, permit the Company has, in its good faith, determined is not true, (g) no Group Companies or their respective Representatives shall be required to provide, and the Buyer will be solely responsible for the preparation of: (1) pro forma financial information; (2) any description of all or any component consummation of the Debt Financing; , (C) nothing herein shall require such cooperation from Parent and its Subsidiaries to the extent it would unreasonably interfere with its ongoing operations, (D) for the avoidance of doubt, none of Parent’s obligations under this Section 4.23 shall accelerate or (3) projections, risk factors or other forward-looking statements relating to all or otherwise modify in any component of the Debt Financing; respect Parent’s obligations under Section 4.10 and (hE) no Group Company Parent and its Subsidiaries shall be required to provide access to or disclose information that the Company determines would jeopardize not have any attorney–client privilege or other similar privilege of the Company or any of its Subsidiaries. Promptly upon request by the Company, Xxxxx will reimburse the Company for any reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Company, the Company Subsidiaries or any of their Representatives in connection with the cooperation of the Company, the Company Subsidiaries and their Representatives contemplated by this Section 8.11. Except in the case of fraud or a breach of this Agreement, Buyer shall indemnify, defend, and hold harmless the Group Companies and their respective Representatives from and against any and all losses, damages, awards, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecution, investigation, defense or settlement of any of the foregoing) and other amounts suffered or incurred by them in connection with (i) any action taken by them at the request of Buyer pursuant to this Section 8.11 or in connection with the arrangement of the Debt Financing or (ii) any information utilized in connection therewith, and the foregoing obligations shall survive termination of this Agreement and the occurrence of the Closing. In addition, no action, liability or obligation of the Company, any of the Company Subsidiaries or any of their respective Representatives pursuant to under any certificate, agreement, arrangement, document or instrument relating to any portion of the Debt Financing upon the Closing. From and after the Closing, NewCo shall promptly, upon request by Parent, reimburse Parent for all reasonable, documented, out-of-pocket costs and expenses (other than the execution of the authorization letters referred to in clause (c)(iiincluding reasonable attorneys’ fees) of Section 8.11.1) will be effective until the Closing Date. All material, non-public information regarding the Group Companies provided to Buyer incurred by Parent or any of its Subsidiaries and their respective Representatives pursuant to this Section 8.11 shall be kept confidential by them in accordance with the Confidentiality Agreement except for disclosure to potential investors as required in connection with the Debt Financing subject to customary confidentiality protections. Notwithstanding anything to (including the contrary, the Company shall be deemed to have complied with cooperation contemplated by this Section 8.11 for 4.20) (whether incurred prior to, on or after Closing), and shall indemnify and hold harmless Parent, its Subsidiaries and their respective Representatives from and against any and all purposes Losses suffered or incurred by any of this Agreement (including Article 6 and Article 7) unless them in connection with the Debt Financing has not been obtained primarily as a result of the Company’s Willful Breach of its obligations under this Section 8.11. Notwithstanding anything herein to the contrary, Xxxxx acknowledges and agrees that obtaining any Debt Financing is not a condition to the ClosingFinancing.
Appears in 1 contract
Samples: Separation and Investment Agreement (Avon Products Inc)
Financing Cooperation. 8.11.1. Buyer may determine(a) Prior to and until the Closing, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer Company shall, promptly after such Debt Financing is obtained (x) provide Seller and shall cause its Subsidiaries to, and the Company with written notice that such Debt Financing has been obtained and (y) deliver (or cause to be delivered) to Seller and the Company true, correct and complete copies each of all arrangements pursuant to which any Financing Parties shall have committed to provide any portion of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further that, in no event shall the receipt of such Debt Financing be a condition to Closing and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. Prior to the Closing, subject to Section 8.11.2, the Company shall use reasonable best efforts to, and Subsidiaries shall use reasonable best efforts to cause the Company Subsidiaries and its and their respective Representatives to, in each case at Buyer’s sole expense, provide to Buyer such cooperation reasonably requested by Buyer that is reasonably necessary in arranging, obtaining and syndicating the Debt Financing, if any (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the operations of the Group Companies), including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies as may be reasonably requested by Buyer for the completion of the Debt Financing, (b) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies in connection with the Debt Financing to the extent reasonable and customary for financings of such type, (c) reasonably assisting in the preparation of (i) customary bank information memoranda, lender and investor presentations, offering documents, offering or private placement memoranda and other similar marketing documents and due diligence efforts for the Debt Financing and (ii) customary authorization and representation letters, each as required in connection with the Debt Financing, authorizing the distribution of information to prospective lenders and containing a representation that the public side of such documents, if any, do not include any information about any Group Company or any securities of any Group Company that would constitute material non-public information within the meaning of the United States federal and state securities laws if any Group Company were a public reporting company, (d) using reasonable best efforts to cause the Company’s independent registered accounting firm to provide customary assistance, including (i) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) in connection with any capital markets transaction comprising a part of the Debt Financing, (ii) providing customary consents to the inclusion of their audit report in respect of any financial statements of the Company and its Subsidiaries to, (1) provide to Parent and Merger Sub, as applicable, (x) the Company Subsidiaries in any offering documents relating to the Debt Financing Required Information and (iiiy) reasonable assistance and cooperation to Buyer with respect to any auditor due diligence, (e) subject to and conditioned on the occurrence of the Closing, the taking of customary corporate actions reasonably necessary to permit the consummation of and funding of the Debt Financing, (f) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth in any definitive document relating to the Debt Financing to the extent satisfaction of such condition requires the cooperation of, or is within the control of, the Group Companies, (g) delivering to Buyer at least three (3) Business Days prior to the Closing Date, all such documentation and other information as is reasonably requested in writing by Buyer at least ten (10) Business Days prior to the Closing to the extent required by U.S. applicable regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT USA Patriot Act and the requirements of 31 C.F.R. §1010.230, (h) facilitating and assisting in the preparation and delivery of any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents relating to the Debt Financing relating to the Group Companies2001, and their respective businesses to be included in the definitive documents relating to the Debt Financingbeneficial ownership regulations, and assist with the execution and delivery of the same, but in each case, solely as relating to the Company and its Subsidiaries to the extent reasonably requested by the Parent and/or the Debt Financing Sources at least ten Business Days prior to the Closing Date and (2) use reasonable best efforts to provide to Parent and customary for financings of such type, (i) cooperating with internal and external counsel of Buyer in connection with providing customary back-up certificates and factual information regarding any legal opinion Merger Sub all cooperation reasonably requested by Parent that such counsel may be is necessary or reasonably required to deliver in connection with the Debt Financing, including the following: (i) using reasonable best efforts to cause the Company’s and its Subsidiaries’ senior officers and other representatives to participate in no more than two meetings (which shall be virtual) or conference call (which shall be virtual) with prospective lenders, to the extent reasonably requested in connection with the Debt Financing and only to the extent customarily needed for financings of the type contemplated by the Debt Commitment Letter, in each case at reasonable times and on reasonable advance notice, (ii) using reasonable best efforts to assist with the preparation of appropriate and customary materials for rating agency presentations, syndication documents (including any customary bank information memoranda), (iii) using reasonable best efforts to assist with the preparation of schedules to any pledge, security and other collateral documents, loan agreement or other definitive financing documentation, or any certificates, in each case, as may be reasonably requested by Parent and customary for transactions of the type contemplated by the Debt Financing Commitment, , and in each case solely to the extent such materials relate to information concerning the Company and that is necessary to complete such schedules (iv) using reasonable best efforts to facilitate the pledging of collateral, provided that no pledge shall be effective or public filing be made until the Effective Time, (v) in accordance with Section 6.13, using reasonable best efforts to facilitate and deliver the Payoff Letter, (vi) using reasonable best efforts to execute customary for financings of authorization and representation letters in connection with the Debt Financing, provided that such typeauthorization and representation letters shall related only to the historical information provided by the Company and its Subsidiaries, (vii) using reasonable best efforts to cooperate with the Debt Financing Sources’ due diligence requests and review, to the extent reasonably requested in connection with the Debt Financing, and (jviii) using reasonable best efforts to take such actions as are reasonably requested by the Parent or the Debt Financing Sources to facilitate the satisfaction of all conditions precedent to obtaining and providing documents the Debt Financing to Buyer the extent within the control of the Company (including draft payoff lettersdelivery of the stock and other equity certificates of the Company and its Subsidiaries to the Parent); provided that (I) until the Effective Time occurs, neither the Company nor any of its Subsidiaries shall (A) be required to (x) pay any fees, expenses or other amounts in connection with the Debt Financing or (y) execute or enter into, or cause any Affiliates, or any of their respective directors, officers, employees or agents, to execute or enter into, any certificate, instrument, agreement or other document in connection with the Debt Financing which will be effective prior to the Effective Time (provided, that no officer of the Company or any of its Subsidiaries who is not remaining in such position following the Closing Date shall be obligated to execute any certificate, instrument, agreement or other document), (B) have any liability or obligation under any loan agreement or any related document or any other agreement or document related to the Debt Financing or (C) be required to incur any liability in connection with the Debt Financing and (II) nothing herein shall require cooperation that would require providing access to or disclosing information that the Company reasonably determines would jeopardize any attorney-client or other legal privilege. Notwithstanding anything to the contrary in this Section 6.16, but subject to the terms set forth on Section 6.16 of the Company Disclosure Letter, nothing will require the Company or its Subsidiaries to provide (or be deemed to require the Company to prepare) any (1) pro forma financial statements, projections or other prospective information; (2) description of all or any portion of the Debt Financing; (3) risk factors relating to the repayment all or any component of the Indebtedness Debt Financing, including any such description to be included in liquidity and capital resources disclosure; (4) “segment” financial information and separate subsidiary financial statements, (5) any financial statements or other information required by Rules 3-09, 3-10, 3-16, 13-01 or 13-02 of Regulation S-X, Regulation S-K Item 302 or for any period prior to January 1, 2019, (6) information regarding officers or directors prior to consummation of the release Merger (except biographical information if any of such persons will remain officers or directors after consummation of the Merger, if any), executive compensation and related guarantees party disclosure or any Compensation Discussion and Liens Analysis or information required by Item 302 (to the extent not so provided in SEC filings) or 402 of Regulation S-K under the Securities Act and any other information that would be required by Part III of Form 10-K (except to the extent previously filed with the SEC), (7) information regarding affiliate transactions that may exist following consummation of the Merger, (8) information regarding any post-Closing pro forma cost savings, synergies, capitalization, ownership or other post-Closing pro forma adjustments (excluding information that is historical financial information of the Company and is derivable without undue effort or expense by the Company from the books and records of the Company or any of its subsidiaries) or (9) information necessary for the preparation of any projected or forward-looking financial statements or information that is not derivable without undue effort or expense by the Company.
(b) Notwithstanding anything herein to the contrary, (i) any requested cooperation pursuant to this Section 6.16 shall not be required if such cooperation (A) unreasonably disrupts or interferes with the business or the operations of Company and its Subsidiaries or (B) causes significant competitive harm to the Company or its Subsidiaries, if the transactions contemplated by this Agreement are not consummated, (ii) nothing in this Section 6.16 shall require cooperation to the extent that it would (A) subject, or reasonably be expected to subject, any of Company’s or its subsidiaries’ respective directors, managers, officers or employees to any personal liability, (B) based on the advice of the Company’s legal counsel, conflict with, or violate, the Company’s and/or any of its subsidiaries’ organization documents or any applicable Law or judgment, or result in the contravention of, or violation or breach of, or default under, any material Contract to which Company or any of its Subsidiaries is a party, (C) would cause any condition to the Closing set forth in Section 7.01, Section 7.02 or Section 7.03 to not be satisfied or (D) cause any breach of this Agreement, (iii) neither the Company nor any subsidiary thereof shall be required to (A) pay any commitment or other similar fee or incur or assume any liability or other obligation in connection with the financings contemplated by the Debt Financing or the Debt Documents, to bear any cost or expense or to make any other payment (in each case to the extent it has not received prior reimbursement or is not otherwise concurrently indemnified by or on behalf of Parent) or agree to provide any indemnity in connection with the Debt Financing or any information utilized in connection therewith, in each case prior to the Effective Time, (B) deliver or obtain opinions of internal or external counsel, or (C) require the directors or managers of the Company or any of its Subsidiaries to adopt resolutions approving the agreements, documents and instruments pursuant to which the Debt Financing is obtained unless Parent shall have determined that such directors or managers are to remain as directors and managers of the Company on and after the Closing Date and such resolutions are contingent upon the occurrence of, or only effective as of, the Closing.
(c) All material non-public information regarding the Company and its Subsidiaries provided to Parent, Merger Sub and their respective Representatives pursuant to this Section 6.16 shall be kept confidential by them in accordance with the terms of this Confidentiality Agreement. The Company hereby consents, on behalf of itself and the Group Companies, consents to (i) the use of the all of its and its Subsidiaries’ logos of the Group Companies in connection with the Debt Financing; provided that such logos are used solely in a manner that is not intended to, to nor is reasonably likely to, to harm or disparage the Company’s Company or any of its Affiliates’ Subsidiaries, the reputation or goodwill.
8.11.2. Notwithstanding anything in this Agreement to the contrary, (a) no Group Company nor any of their respective Representatives shall be required, under the provisions of this Section 8.11 or otherwise in connection with the Debt Financing, to pay any commitment or other similar fee or enter into any binding agreement (other than the execution goodwill of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) or commitment or incur any other actual or potential liability or obligation in connection with the Debt Financing prior to the Closing that is not advanced by Buyer, (b) no Group Company or any of their respective Representatives, managers, officers or employees shall be required to execute or enter into, perform or authorize any agreement with respect to the Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) that is not contingent upon the Closing or that would be effective prior to the Closing Date, (c) no Representative, manager, officer or employee of any Group Company shall be required to deliver any certificate or take any other action pursuant to this Section 8.11 to the extent any such action would reasonably be expected to result in personal liability to such Representative, manager, officer or employee, (d) no Group Company or their respective Representatives shall be required to take any action that would reasonably be expected, in the reasonable judgment of the Company, to conflict with, or result in any violation or breach of, any applicable Laws, any organizational documents of any Group Company, any contract or obligations of confidentiality (not created in contemplation hereof) binding on any Group Company, (e) no Group Company its Subsidiaries or any of their respective Representatives shall be required to take any action that would cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreementassets, including their logos and marks and (fii) no Group Company or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, Parent sharing confidential information regarding the Company haswith Debt Financing Sources as “representatives” of Parent under the Confidentiality Agreement.
(d) The Company shall use reasonable best efforts to deliver evidence, in its good faithform and substance reasonably acceptable to Parent, determined is not true, (g) no Group Companies or their respective Representatives shall be required to provide, and the Buyer will be solely responsible for the preparation of: (1) pro forma financial information; (2) any description of all or any component of the Debt Financing; termination, effective as of Closing, of any and all obligations or liabilities under that certain letter agreement, dated as of November 16, 2022, with unique swap identifier 1030282338VM45635678 (3the “Interest Swap Agreement”) projections, risk factors or other forward-looking statements relating to and all or any component amounts payable thereunder having been satisfied as of the Debt Financing; and (h) no Group Company shall be required to provide access to Closing, without any further liability or disclose information that obligation on the Company determines would jeopardize any attorney–client privilege or other similar privilege part of the Company or any of its Subsidiaries; provided, however, in lieu thereof, at the written request of Parent, the Company shall use reasonable best efforts to novate to Parent the Interest Swap Agreement, effective on the Closing Date. Promptly To the extent the Interest Swap Agreement is terminated in accordance with the preceding sentence (and not novated), Parent shall be obligated to provide to the Company or its Subsidiaries any termination payments, settlement amounts or other out-of-pocket costs payable by the Company or any of its Subsidiaries in connection with such termination substantially simultaneously with (and subject to the occurrence of) the Closing.
(e) Parent shall, promptly upon written request by the Company, Xxxxx will reimburse the Company for any all reasonable costs and documented out-of-pocket fees and expenses (including reasonable attorneys’ feesprofessional fees and expenses of accountants, legal counsel and other advisors) to the extent such costs are incurred by the Company or its Subsidiaries in connection with such cooperation provided by the Company, its Subsidiaries, their respective officers, employees and other representatives pursuant to the Company Subsidiaries terms of this Section 6.16, or any of their Representatives in connection with the cooperation of the Company, the Company Subsidiaries and their Representatives contemplated by compliance with its obligations under this Section 8.11. Except in the case of fraud or a breach of this Agreement6.16, Buyer shall indemnify, defend, and Parent hereby agrees to indemnify and hold harmless the Group Companies Company and its Subsidiaries and their respective Representatives officers, employees, agents and representatives from and against any and all losses, damages, awards, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecution, investigation, defense liabilities or settlement of any of the foregoing) and other amounts losses suffered or incurred by them in connection with the arrangement of the Debt Financing, any information utilized in connection therewith and any misuse of the logos or marks of the Company or its Subsidiaries, except to the extent that such liabilities or losses arose out of or resulted from the willful misconduct of the Company, any of its Subsidiaries or any of their respective representatives.
(if) any action taken by them at The parties hereto acknowledge and agree that the request of Buyer pursuant to provisions contained in this Section 8.11 or 6.16 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 or (iiFinancing) any information utilized in connection therewith, and to be obtained by Parent and/or Merger Sub with respect to the foregoing obligations shall survive termination of transactions contemplated by this Agreement and the occurrence Debt Commitment Letter, and no other provision of this Agreement (including the ClosingExhibits and Schedules hereto) or the Debt Commitment Letters or Debt Documents shall be deemed to expand or modify such obligations. In addition, no action, liability event shall the receipt or obligation availability of the Company, any funds or financing be a condition to any of the Company Subsidiaries Parent’s or any of their respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to any Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) will be effective until the Closing Date. All material, non-public information regarding the Group Companies provided to Buyer or any of its Representatives pursuant to Merger Sub’s obligations under this Section 8.11 shall be kept confidential by them in accordance with the Confidentiality Agreement except for disclosure to potential investors as required in connection with the Debt Financing subject to customary confidentiality protectionsAgreement. Notwithstanding anything to the contrarycontrary in this Agreement, the Company shall Company’s breach of any of the covenants required to be deemed to have complied with performed by it under this Section 8.11 for all purposes 6.16(a) shall not be considered in determining the satisfaction of this Agreement any condition set forth in Article VII, unless such breach is (including Article 6 and Article 7a) unless the Debt Financing has not been obtained primarily as a result in respect of any of the Company’s Willful Breach obligations pursuant to Section 6.16(a)(1), or (b) a willful and material breach and is the primary cause of its obligations under this Section 8.11. Notwithstanding anything herein Parent being unable to obtain the contrary, Xxxxx acknowledges and agrees that obtaining any proceeds of the Debt Financing is not a condition to at the Closing.
Appears in 1 contract
Financing Cooperation. 8.11.1. Buyer may determinePrior to and until the Closing, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (xA) provide Seller and the Company with written notice that such Debt Financing has been obtained and (y) deliver (shall furnish, or cause to be deliveredfurnished to, Parent, Acquisition Sub and/or its Debt Financing Sources, the Required Information (other than the pro forma financial statements referred to in paragraph 4(c) to Seller and the Company true, correct and complete copies of all arrangements pursuant to which any Financing Parties shall have committed to provide any portion Exhibit E of the Debt Financing; provided that any fee letters may Commitment Letter, which shall be redacted in a customary manner; provided further thatprepared by Parent), in including, without limitation, the contemplated financial statements by no event shall later than such financial statements would be required to be filed with the receipt of such Debt Financing be a condition to Closing SEC and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. Prior to the Closing, subject to Section 8.11.2, (B) the Company shall use reasonable best efforts to, and shall (x) cause its Subsidiaries and controlled or under common control Affiliates and (y) use reasonable best efforts to cause their respective officers, directors, employees and accountants to, at Parent’s sole cost and expense (excluding any costs and expenses with respect to financial statements, financial information or other materials prepared prior to the date hereof or, after the date hereof, that the Company Subsidiaries and its and their respective Representatives towould have prepared in the ordinary course of business), in each case at Buyer’s sole expense, to provide to Buyer such customary cooperation as is reasonably requested by Buyer that is reasonably necessary Parent or Acquisition Sub to assist Parent and Acquisition Sub in arranging, obtaining and syndicating connection to Parent’s efforts to obtain the Debt Financing, if any including using reasonable best efforts to do the following (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with to the operations of the Group Companies), including as promptly as extent so reasonably practical, requested): (i) (a) furnishing Buyer provide customary “flash” or “recent development” revenue or balance sheet information to the extent reasonably available (which may be provided in a reasonable range or estimate and may be provided on a non-GAAP basis (including EBITDA or adjusted EBITDA to the extent and consistent with calculations and definitions previously used by the Required Financial Information Company (including in any publicly filed document, publicly available presentation or press release, certificate delivered to any agent or lender, or offering document in connection with any offering of securities), it being understood that the Company need not create any new metrics)) for any fiscal quarter ending after the date hereof and prior to the Closing, and (b) all other and reasonably available customary pertinent financial, business and other pertinent information regarding the Group Companies Company and its Subsidiaries as may be reasonably requested by Buyer for Parent and, including in any event the completion financial statements required under paragraphs 4 (other than paragraph 4(c)) and 7 of Exhibit E of the Debt FinancingCommitment Letter, (bii) participating cause members of senior management of the Company to participate in telephonic meetings and otherwise reasonably assisting with the preparation a reasonable number of appropriate and customary materials customary lender meetings, lender presentations, due diligence sessions (including accounting due diligence sessions) ), road shows, drafting sessions and sessions with rating agencies agency meetings, in connection with the Debt Financing to the extent each case, upon reasonable advance notice, at mutually agreed locations and customary for financings of such typetimes (including by electronic means), (ciii) reasonably assisting provide reasonable assistance to Parent in the its preparation of (i) customary bank information memorandarating agency presentations, lender and investor presentations, offering documentsmemoranda, offering or private placement customary bank information memoranda and other similar marketing documents and due diligence efforts for the Debt Financing and (ii) customary authorization and representation letters, each as reasonably required in connection with the Debt Financing, authorizing the distribution of information to prospective lenders and containing a representation that the public side including by reasonably assisting in preparation of such documents, if any, materials that do not include any information about any Group Company or any securities of any Group Company that would constitute material non-public information, in each case, solely with respect to information within relating to the meaning of Company (to the United States federal extent related to its business) and state securities laws if any Group Company were a public reporting companyits Subsidiaries, (div) using reasonable best efforts deliver information and documentation related to cause the Company’s independent registered accounting firm to provide customary assistance, including (i) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) in connection with any capital markets transaction comprising a part of the Debt Financing, (ii) providing customary consents to the inclusion of their audit report in respect of any financial statements of the Company and its Subsidiaries that is required by the Company Subsidiaries in Debt Commitment Letter (or any offering documents relating to successor provision thereof) and reasonably requested by Parent or the Debt Financing and (iii) reasonable assistance and cooperation to Buyer with respect to any auditor due diligence, (e) subject to and conditioned on the occurrence of the Closing, the taking of customary corporate actions reasonably necessary to permit the consummation of and funding of the Debt Financing, (f) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth in any definitive document relating to the Debt Financing to the extent satisfaction of such condition requires the cooperation of, or is within the control of, the Group Companies, (g) delivering to Buyer Sources at least three eight (3) 8) Business Days prior to the Closing all such documentation and information as is reasonably requested in writing by Buyer at least ten (10) Business Days prior Date with respect to the Closing to the extent required by U.S. regulatory authorities compliance under applicable “know your customer,” beneficial ownership and anti-money laundering rules and regulations, including the USA PATRIOT Act and Act, which information shall be provided no later than three (3) Business Days prior to the requirements of 31 C.F.R. §1010.230Closing Date, (hv) facilitating and assisting in the preparation and delivery of any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents relating to cooperate with the Debt Financing relating to the Group CompaniesSources’ due diligence, and their respective businesses to be included in the definitive documents relating to the Debt Financing, and assist with the execution and delivery of the same, in each case, solely to the extent reasonable and customary for financings of such type, (i) cooperating with internal and external counsel of Buyer in connection with providing customary back-up certificates and factual information regarding any legal opinion that such counsel may be required to deliver reasonably requested in connection with the Debt Financing, (vi) to the extent required by the Debt Financing Sources, execute and deliver customary authorization to the Debt Financing Sources with respect to any bank information memorandum, (vii) provide reasonable and customary assistance with Parent’s preparation, negotiation and execution of definitive financing documentation and the schedules and exhibits thereto (including indentures, loan agreements, guarantees, collateral agreements, hedging arrangements, payoff letters and release agreements, customary officer’s certificates and corporate resolutions or other corporate actions, as applicable) as may reasonably be requested by Parent or Acquisition Sub and subject to the occurrence of the Closing, (viii) provide reasonable and customary assistance with facilitating the pledging of collateral (including possessory collateral) in connection with the Debt Financing, including executing and delivering as of the Closing Date any customary pledge and security documents, currency or interest hedging arrangements or other customary definitive financing documents, and documents as may be reasonably requested by Parent or Acquisition Sub and delivering or causing to be delivered certificated equity interests of material domestic Subsidiaries of the Company, (ix) take all reasonable actions necessary to permit the Debt Financing Sources to evaluate the Company’s 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, including facilitating customary field examinations and inventory and equipment appraisals by the Debt Financing Sources, (x) supplement the Required Information on a reasonably current basis to the extent that any Required Information, to the knowledge of the Company, when taken as a whole and in light of the circumstances under which such statements were made, contains any material misstatement of fact or omits to state any material fact necessary to make such information not materially misleading, (xi) cause the independent auditors of the Company to assist and cooperate with Parent in connection with the Debt Financing, including by providing customary consent to offering memoranda or documents that include or incorporate the Company’s consolidated financial information and their reports thereon, and customary comfort letters (including “negative assurance” and change period comfort) with respect to financial information relating to the Company and its Subsidiaries and (xii) timely deliver any limited conditions transaction (LCT) election under the Company Indenture governing the Company’s 6.125% secured notes due 2026 (the “Company Existing Secured Notes”), the Existing ABL Credit Agreement and/or the Existing TLB Credit Agreement as may be reasonably requested by Parent in consultation with the Company and reasonably acceptable to the Company (provided that no such notice shall be required to be delivered upon the entry into this Agreement), it being understood that the Company shall reasonably cooperate with the Parent to prepare any calculations required to make such election but the Company shall not be responsible for any such calculations, and customary CFO certificates or similar certificates with respect to certain financial information in the offering documents to the extent not otherwise covered by the “comfort letters” described herein; provided that the such requested cooperation shall not (1) require the Company or any of its Subsidiaries or their respective representatives to (i) execute, deliver, enter into, approve or perform any agreement, commitment, certificate, document or instrument (excluding any customary authorization letters or representation letters to the Company’s independent auditors), or modification of any agreement, commitment, document or instrument, in each case, solely that would be effective prior to the Effective Time (in each case other than in connection with the Debt Offers (as defined below) or otherwise in accordance with Section 5.19, the items delivered in clauses (B)(xi) and (B)(xii) above or that which is Required Information), (ii) deliver or cause the delivery of any legal opinions, deliver or cause the delivery of any reliance letters or any certificate as to solvency or any other certificate in connection to the Debt Financing (in each case other than in connection with the Debt Offers, or otherwise in accordance with Section 5.19 hereof or the items delivered in clauses (B)(xi) and (B)(xii) above, it being agreed that the solvency certificate required by Exhibit E of the Debt Commitment Letter shall be provided by Parent), (iii) adopt any resolutions, execute any consents or otherwise take any corporate or similar action or deliver any certificate, in connection with the Debt Financing or the incurrence of indebtedness thereby, in each case, that would be effective prior to the Effective Time (in each case other than in connection with the Debt Offers, or otherwise in accordance with Section 5.19 hereof or the items delivered in clauses (B) (xi) and (B)(xii) above), (iv) pay any commitment or other similar fee, incur or reimburse any costs or expenses or incur any other liability or obligation of any kind or give any indemnities in connection with the Debt Financing, including under any certificate, agreement, arrangement, document or instrument related thereto, in each case, that would be effective prior to the Effective Time or (v) prepare stand-alone financial statements for any Subsidiaries of the Company or prepare financial statements or financial metrics which the Company has not historically prepared, (2) require the Company or any of its Subsidiaries to take any action that will conflict with or violate its organizational documents or any Laws or result in a breach of, or default under, any Contract (other than any Company Material Contract being entered in contemplation hereof) or otherwise breach any of the Company’s representations, warranties, covenants or agreements under this Agreement, (3) require the Company or any of its Subsidiaries to enter into or approve any binding commitment prior to the Effective Time, or (4) unreasonably interfere with the ongoing operations of the Company and its Subsidiaries. In the event this Agreement is terminated pursuant to Section 7.1 (other than as a result of a breach by the Company) Parent shall promptly (and in any event within three (3) Business Days of delivery of documentation evidencing such cost and expenses) reimburse the Company for any out-of-pocket reasonable and documented expenses and costs (including reasonable outside attorneys’ fees and disbursements) incurred in connection with the Company’s or its Affiliates’ or representatives’ obligations under Section 5.17 or this Section 5.18 and Parent and Acquisition Sub shall indemnify and hold harmless the Company, its Affiliates and their respective representatives from and against any and all losses, damages, claims, costs (including cost of investigation), settlement payments, injuries, liabilities, judgments, awards, penalties, fines or expenses (including reasonable outside attorneys’ fees and disbursements) suffered or incurred by any of them as a result of, or in connection with, (1) such cooperation or otherwise in connection with the Company’s or its Affiliates’ or Representatives’ obligations under Section 5.17 or this Section 5.18, (2) the Debt Financing, and (3) any information used in connection with the Debt Financing except, to the extent reasonable and customary for financings of such typelosses, and (j) obtaining and providing documents to Buyer damages, claims, costs (including draft payoff letterscost of investigation), settlement payments, injuries, liabilities, judgments, awards, penalties, fines or expenses (including reasonable outside attorneys’ fees and disbursements) arose from (a) historical financial information (including the “flash” or “recent development” financial information referred to above) relating to the repayment Company and its Subsidiaries provided by the Company expressly for use in connection with the Debt Financing or (b) the fraud, bad faith, or willful misconduct of the Indebtedness and the release Company, its Subsidiaries, or any of related guarantees and Liens their respective Affiliates or representatives as finally determined in accordance with the terms a non-appealable judgment by a court of this Agreementcompetent jurisdiction. The Company hereby consents, on behalf of itself and the Group Companies, consents to the use of the its and its Subsidiaries’ logos of the Group Companies in connection with the Debt Financing; provided that such logos are used solely in the ordinary course as is customary for such purpose and in a manner that is not intended tointended, nor is or reasonably likely tolikely, harm to harm, disparage or disparage otherwise adversely affect the Company’s or , any of its Affiliates’ Subsidiaries or their reputation or goodwill.
8.11.2. Notwithstanding anything in this Agreement to the contraryThe Company, (a) no Group Company nor any of its Affiliates and their respective Representatives shall be requiredgiven a reasonable opportunity to review all presentations, under the provisions bank information memoranda and similar marketing materials, materials for rating agencies and other documents prepared by or on behalf of this Section 8.11 or otherwise in connection with the used by Parent or Acquisition Sub or any of their Affiliates or used or distributed to any Debt Financing, to pay Financing Source or any commitment or other similar fee or enter into any binding agreement (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) or commitment or incur any other actual or potential liability or obligation its Affiliates in connection with the Debt Financing prior to the Closing that is not advanced by Buyer, (b) no Group Company include any logos of or any of their respective Representatives, managers, officers information about or employees shall be required to execute or enter into, perform or authorize any agreement with respect to the Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) that is not contingent upon the Closing or that would be effective prior to the Closing Date, (c) no Representative, manager, officer or employee of any Group Company shall be required to deliver any certificate or take any other action pursuant to this Section 8.11 to the extent any such action would reasonably be expected to result in personal liability to such Representative, manager, officer or employee, (d) no Group Company or their respective Representatives shall be required to take any action that would reasonably be expected, in the reasonable judgment of the Company, to conflict with, or result in any violation or breach of, any applicable Laws, any organizational documents of any Group Company, any contract or obligations of confidentiality (not created in contemplation hereof) binding on any Group Company, (e) no Group Company or any of their respective Representatives shall be required to take any action that would cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement, (f) no Group Company or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, the Company has, in its good faith, determined is not true, (g) no Group Companies or their respective Representatives shall be required to provide, and the Buyer will be solely responsible for the preparation of: (1) pro forma financial information; (2) any description of all or any component of the Debt Financing; or (3) projections, risk factors or other forward-looking statements relating to all or any component of the Debt Financing; and (h) no Group Company shall be required to provide access to or disclose information that the Company determines would jeopardize any attorney–client privilege or other similar privilege of the Company or any of its Subsidiaries. Promptly upon request provided by the Company, Xxxxx will reimburse its Affiliates, or their respective Representatives; provided that any authorization letters (or the Company for any reasonable costs and expenses (including reasonable attorneys’ feesbank information memoranda in which such letters are included) incurred by shall include language that exculpates the Company, the Company Subsidiaries or any of their Representatives in connection with the cooperation of the Company, the Company Subsidiaries and their Representatives contemplated by this Section 8.11. Except in the case of fraud or a breach of this Agreement, Buyer shall indemnify, defend, and hold harmless the Group Companies its Affiliates and their respective Representatives from and against any and all losses, damages, awards, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecution, investigation, defense or settlement of any of the foregoing) and other amounts suffered or incurred by them in connection with (i) any action taken by them at the request of Buyer pursuant to this Section 8.11 or liability in connection with the arrangement unauthorized use by the recipients thereof of the Debt Financing information set forth in any such bank confidential information memoranda or (ii) any information utilized similar memoranda or report distribution in connection therewith, and the foregoing obligations shall survive termination of this Agreement and the occurrence of the Closing. In addition, no action, liability or obligation of the Company, any of the Company Subsidiaries or any of their respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to any Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) will be effective until the Closing Date. All material, non-public information regarding the Group Companies provided to Buyer or any of its Representatives pursuant to this Section 8.11 shall be kept confidential by them in accordance with the Confidentiality Agreement except for disclosure to potential investors as required in connection with the Debt Financing subject to customary confidentiality protections. Notwithstanding anything to the contrarycontrary contained herein, in no event shall the Company shall be deemed to have complied with this Section 8.11 for all purposes of this Agreement (including Article 6 and Article 7) unless the Debt Financing has not been obtained primarily breached its obligations hereby as a result of Parent’s failure to prepare the Company’s Willful Breach pro forma financial statements as part of its obligations under this Section 8.11. Notwithstanding anything herein to the contrary, Xxxxx acknowledges and agrees that obtaining any Debt Financing is not a condition to the ClosingRequired Information.
Appears in 1 contract
Financing Cooperation. 8.11.1. Buyer may determineUntil the one-year anniversary of the Closing Date, Seller and its Representatives shall use commercially reasonable efforts to provide cooperation (including with respect to timeliness) in its sole discretion, to obtain connection with the arrangement of any debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (x) provide Seller and the Company with written notice that such Debt Financing has been obtained and (y) deliver (or cause to be delivered) to Seller and the Company true, correct and complete copies of all arrangements pursuant to which any Financing Parties shall have committed to provide any portion of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further that, in no event shall the receipt of such Debt Financing be a condition to Closing and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. Prior to the Closing, subject to Section 8.11.2, the Company shall use reasonable best efforts to, and shall use reasonable best efforts to cause the Company Subsidiaries and its and their respective Representatives to, in each case at Buyer’s sole expense, provide to Buyer such cooperation reasonably requested by Buyer that is reasonably necessary in arranging, obtaining and syndicating the Debt Financing, if any (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the operations of the Group Companies), including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies as may be reasonably requested by Buyer for the completion of the Debt Financingincluding, without limitation, (bi) participating in telephonic meetings promptly furnishing Buyer and otherwise reasonably assisting its financing sources with the preparation financial information of appropriate Seller and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies in connection with any pertinent information regarding the Debt Financing Business as may be reasonably requested by Buyer to the extent reasonable and customary for financings of consummate such typedebt financing, (cii) reasonably promptly assisting Buyer in the preparation of (i) business projections, pro forma financial information, bank information, memoranda, customary bank authorization letters, customary syndication documents and materials, including confidential information memoranda, lender and investor presentations, offering documents, offering or private placement memoranda rating agency presentations and other similar marketing documents and due diligence efforts for the Debt Financing and (ii) customary authorization and representation letters, each as required in connection with the Debt Financing, authorizing the distribution of information to prospective lenders and containing a representation that the public side any portion of such documentsdebt financing, if any, do not include any information about any Group Company or any securities of any Group Company that would constitute material non-public information within the meaning of the United States federal and state securities laws if any Group Company were a public reporting company, (d) using reasonable best efforts to cause the Company’s independent registered accounting firm to provide customary assistance, including (i) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) in connection with any capital markets transaction comprising a part of the Debt Financing, (ii) providing customary consents to the inclusion of their audit report in respect of any financial statements of the Company and the Company Subsidiaries in any offering documents relating to the Debt Financing and (iii) promptly providing or executing and delivering (and upon the Buyer’s reasonable assistance request, negotiating) other documents or taking such actions as promptly as practicable that may be reasonably requested by Buyer to facilitate the satisfaction on a timely basis of all conditions to obtaining such debt financing and cooperation to Buyer with respect to any auditor due diligence, (e) subject to and conditioned on the occurrence of the Closing, the taking of customary corporate actions reasonably necessary to permit the consummation of and funding of the Debt Financing, (fiv) reasonably assisting cooperating in Buyer’s efforts to satisfy satisfying the conditions precedent set forth in any definitive document relating to the Debt Financing to the extent satisfaction of such condition requires the cooperation ofdebt financing; provided, or is within the control of, the Group Companies, (g) delivering to Buyer at least three (3) Business Days prior to the Closing all such documentation and information as is reasonably requested in writing by Buyer at least ten (10) Business Days prior to the Closing to the extent required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act and the requirements of 31 C.F.R. §1010.230, (h) facilitating and assisting in the preparation and delivery of any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents relating to the Debt Financing relating to the Group Companies, and their respective businesses to be included in the definitive documents relating to the Debt Financing, and assist with the execution and delivery of the same, in each case, solely to the extent reasonable and customary for financings of such type, that (i) cooperating with internal and external counsel of Buyer in connection with providing customary back-up certificates and factual information regarding any legal opinion that such counsel may neither the Seller nor its Representatives shall be required to deliver in connection with the Debt Financing, in each case, solely to the extent reasonable and customary for financings of such type, and (j) obtaining and providing documents to Buyer incur any liability or obligation (including draft payoff letters) relating to the repayment of the Indebtedness and the release of related guarantees and Liens in accordance with the terms of this Agreement. The Company hereby consents, on behalf of itself and the Group Companies, to the use of the logos of the Group Companies in connection with the Debt Financing; provided that such logos are used solely in a manner that is not intended to, nor is reasonably likely to, harm or disparage the Company’s or any of its Affiliates’ reputation or goodwill.
8.11.2. Notwithstanding anything in this Agreement to the contrary, (a) no Group Company nor any of their respective Representatives shall be required, under the provisions of this Section 8.11 or otherwise in connection with the Debt Financing, obligation to pay any commitment or other fee) in respect of any assistance provided in connection with such financing and Buyer shall reimburse Seller and its Representatives, as applicable, for all reasonable, actual and documented out-of-pocket costs incurred by Seller on account of services that Seller cannot reasonably perform internally in connection with this Section 5.13, (ii) any rating agency presentations, bank information memoranda, financing marketing materials or similar fee documents required or enter into any binding agreement (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) or commitment or incur any other actual or potential liability or obligation used in connection with the Debt Financing prior to financing shall contain customary disclosures exculpating the Closing that is not advanced by Buyer, (b) no Group Company or any of their respective Representatives, managers, officers or employees shall be required to execute or enter into, perform or authorize any agreement Seller and its Representatives with respect to the Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) that is not contingent upon the Closing or that would be effective prior any liability related to the Closing Datecontents or use thereof by the recipients thereof, and (ciii) no Representative, manager, officer or employee of any Group Company nothing herein shall be required to deliver any certificate or take any other action pursuant to this Section 8.11 require such cooperation to the extent any such action it would reasonably be expected to result in personal liability to such Representative, manager, officer or employee, (d) no Group Company or their respective Representatives shall be required to take any action that would reasonably be expected, in the reasonable judgment of the Company, to conflict with, or result in any violation or breach of, any applicable Laws, any organizational documents of any Group Company, any contract or obligations of confidentiality (not created in contemplation hereof) binding on any Group Company, (e) no Group Company or any of their respective Representatives shall be required to take any action that would cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement, (f) no Group Company or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, the Company has, in its good faith, determined is not true, (g) no Group Companies or their respective Representatives shall be required to provide, and the Buyer will be solely responsible for the preparation of: (1) pro forma financial information; (2) any description of all or any component of the Debt Financing; or (3) projections, risk factors or other forward-looking statements relating to all or any component of the Debt Financing; and (h) no Group Company shall be required to provide access to or disclose information that the Company determines would jeopardize any attorney–client privilege or other similar privilege of the Company or any of its Subsidiaries. Promptly upon request by the Company, Xxxxx will reimburse the Company for any reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Company, the Company Subsidiaries or any of their Representatives in connection interfere unreasonably with the cooperation business or operations of the Company, the Company Subsidiaries and their Representatives contemplated by this Section 8.11. Except in the case of fraud or a breach of this Agreement, Buyer shall indemnify, defend, and hold harmless the Group Companies and their respective Representatives from and against any and all losses, damages, awards, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecution, investigation, defense or settlement of any of the foregoing) and other amounts suffered or incurred by them in connection with (i) any action taken by them at the request of Buyer pursuant to this Section 8.11 or in connection with the arrangement of the Debt Financing or (ii) any information utilized in connection therewith, and the foregoing obligations shall survive termination of this Agreement and the occurrence of the Closing. In addition, no action, liability or obligation of the Company, any of the Company Subsidiaries or any of their respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to any Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) will be effective until the Closing Date. All material, non-public information regarding the Group Companies provided to Buyer or any of its Representatives pursuant to this Section 8.11 shall be kept confidential by them in accordance with the Confidentiality Agreement except for disclosure to potential investors as required in connection with the Debt Financing subject to customary confidentiality protections. Notwithstanding anything to the contrary, the Company shall be deemed to have complied with this Section 8.11 for all purposes of this Agreement (including Article 6 and Article 7) unless the Debt Financing has not been obtained primarily as a result of the Company’s Willful Breach of its obligations under this Section 8.11. Notwithstanding anything herein to the contrary, Xxxxx acknowledges and agrees that obtaining any Debt Financing is not a condition to the ClosingSeller.
Appears in 1 contract
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of (a) From the Purchase Price (date hereof until the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (x) provide Seller and the Company with written notice that such Debt Financing has been obtained and (y) deliver Closing (or cause to be delivered) to Seller and the Company true, correct and complete copies earlier termination of all arrangements this Agreement pursuant to which any Financing Parties shall have committed to provide any portion of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further that, in no event shall the receipt of such Debt Financing be a condition to Closing and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. Prior to the ClosingSection 9.1), subject to the limitations set forth in this Section 8.11.25.12, the Company shall use reasonable best efforts and unless otherwise agreed by Buyer, Seller will, and will cause each of its Subsidiaries to, and shall will use its reasonable best efforts to cause the Company Subsidiaries its and its Subsidiaries’ Affiliates and their respective Representatives representatives (including legal and accounting) to, in each case at Buyer’s sole expense, provide use its or their reasonable efforts to cooperate with Buyer such cooperation as reasonably requested by Buyer that is reasonably necessary in arrangingconnection with Buyer’s arrangement, obtaining syndication and syndicating obtainment of the Debt Financing. Such cooperation will include using reasonable efforts to:
(i) cooperate with the marketing efforts of Buyer or any Financing Source for all or any part of the Financing, if any including making appropriate officers (provided that such requested cooperation is consistent with applicable Laws appropriate seniority and does not unreasonably interfere expertise) reasonably available, with appropriate advance notice, for participation in a reasonable number of lender or investor meetings, due diligence sessions, meetings with ratings agencies and road shows, and providing reasonable assistance in the preparation of confidential information memoranda, private placement memoranda, offering memoranda, prospectuses, registration statements, filings with the operations of the Group Companies)SEC, including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information lender and other pertinent information regarding the Group Companies investor presentations and similar documents as may be reasonably requested by Buyer for or any Financing Source, in each case, with respect to information relating to the completion of the Debt Financing, (b) participating in telephonic meetings Company and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies Company Subsidiaries in connection with such marketing efforts;
(ii) prepare and furnish Buyer and the Debt Financing Sources as promptly as practicable all Required Information and any other information with respect to the extent reasonable Company and customary Company Subsidiaries as is reasonably requested by Buyer or any Financing Source and is customarily (A) required for the marketing, arrangement and syndication of financings of such type, similar to the Financing or (cB) reasonably assisting used in the preparation of (i) customary bank offering or information memorandadocuments or rating agency, lender presentations or road shows relating to the Financing (it being understood and investor presentationsagreed that Seller will use reasonable efforts to provide the audited consolidated balance sheets and related statements of income, offering documents, offering or private placement memoranda stockholders’ equity and other similar marketing documents and due diligence efforts cash flows of the Company for the Debt Financing and three most recently completed fiscal years ended at least 90 days prior to the Closing Date);
(iiiii) customary authorization and representation letters, each as required in connection with the Debt Financing, authorizing the distribution of information to prospective lenders and containing a representation request that the public side of such documents, if any, do not include any information about any Group Company or any securities of any Group Company that would constitute material non-public information within the meaning of the United States federal and state securities laws if any Group Company were a public reporting company, (d) using reasonable best efforts to cause the Company’s independent registered accountants participate in accounting firm to due diligence sessions and provide customary assistanceconsents (including consents to the inclusion or incorporation by reference of the accountants’ audit reports with respect to the financial statements of the Company included in any filing or registration statement of Buyer with the SEC or any prospectus, including (ioffering memoranda or private placement memoranda) providing customary and comfort letters (including “negative assurance assurance” comfort” and “change period comfort”) to the extent required in connection with any capital markets transaction comprising a part the marketing and syndication of the Debt Financing, Financing (ii) providing customary consents to the inclusion of their audit report in respect of any financial statements of the Company and the Company Subsidiaries in any offering documents relating to the Debt Financing and (iii) reasonable assistance and cooperation to Buyer with respect to any auditor due diligence, (e) subject to and conditioned on the occurrence of the Closing, the taking of customary corporate actions reasonably necessary to permit the consummation of and funding of the Debt Financing, (f) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent including as set forth in the Financing Commitments 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, which letters such accountants would be prepared to issue at the time of pricing and closing of any definitive document relating to the Debt Financing to the extent satisfaction of such condition requires the cooperation of, or is within the control of, the Group Companies, offering;
(giv) delivering to Buyer at least three five (35) Business Days prior to the Closing Closing, furnish (A) all such documentation and other information as is reasonably requested in writing by Buyer at least ten (10) Business Days prior to the Closing to the extent required by U.S. regulatory authorities a Governmental Entity or any Financing Source under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act ACT (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) and anti-bribery and anti-corruption rules and regulations to the extent reasonably requested by Buyer at least ten (10) Business Days prior to the anticipated Closing Date;
(v) assist Buyer in obtaining any credit ratings from rating agencies contemplated by the Financing Commitments;
(vi) in connection with the Financing, provide customary authorization letters to the Financing Sources;
(vii) seek to obtain customary payoff letters to be delivered at Closing (the “Payoff Letters”) evidencing the payoff (including payoff with the proceeds of the Purchase Price) on the Closing Date of all Indebtedness of the Company and the requirements of 31 C.F.R. §1010.230Company Subsidiaries, other than (hA) facilitating the Indebtedness under the Existing Notes and assisting Existing Note Purchase Agreements and (B) any intercompany loans between PNG and the PNG Subsidiaries;
(viii) assist in executing and delivering a solvency certificate as required under the preparation Financing Commitments; and
(ix) assist with the Financing Sources’ requests for due diligence to the extent customary and reasonable; provided, further, that (A) nothing in this Section 5.12(a) shall require Seller to cause the delivery of legal opinions or reliance letters or any credit agreementscertificate as to solvency or any other certificate necessary for the Financing, indenturesother than as allowed by Section 5.12(a)(iii), notesSection 5.12(a)(v), underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates Section 5.12(a)(vi) or other definitive documents relating to the Debt Financing relating to the Group CompaniesSection 5.12(a)(viii); (B) Seller will, and their respective businesses will cause its Subsidiaries to promptly update any Required Information to be included in any offering document to be used in connection with the definitive documents relating Financing so that Buyer may ensure that such Required 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 misleading; and (C) to the Debt Financingextent they include Required Information or information regarding Seller or its Affiliates, Buyer shall provide to Seller drafts of any confidential information memoranda, private placement memoranda, offering memoranda, prospectuses, registration statements, filings with the SEC, lender and investor presentations and similar documents prepared with respect to the Financing and provide Seller and its Affiliates with an opportunity to comment on any portion of such documents to the extent related to the Required Information or information regarding Seller or its Affiliates, which comments the Buyer shall consider in good faith and not unreasonably omit.
(b) In addition, Seller will, and assist with the execution and delivery will cause each of the sameCompany and the Company’s Subsidiaries and the Company’s and Company Subsidiaries’ auditors used in the preparation of the most recent audit included in the financial statements to, prepare and furnish Buyer and the Financing Sources on or before December 15, 2018, (i) an audited consolidated balance sheet of the Company as at December 31, 2017, audited consolidated statements of income and comprehensive income, member’s equity and cash flows of the Company for each of the year ended December 31, 2017, and, in each case, solely the report of such auditors thereon and (ii) an unaudited consolidated balance sheet of the Company as at September 30, 2018 and unaudited consolidated statements of income and comprehensive income, member’s equity and cash flows of the Company for the nine months ended September 30, 2018; provided that Seller will use its reasonable efforts to cause each of the Company and the Company’s Subsidiaries and the Company’s and Company Subsidiaries’ auditors (as applicable) to prepare each of the foregoing financial statements by November 30, 2018. The out-of-pocket costs and expenses of the preparation of the audit pursuant to this Section 5.12(b) shall be borne by Buyer.
(c) Notwithstanding anything to the contrary contained in this Agreement (including this Section 5.12): (i) nothing in this Agreement (including this Section 5.12) shall require any such cooperation to the extent that it would (A) require the Company or any Company Subsidiary to pay any commitment or other fees, reimburse any expenses or otherwise incur any liabilities (other than the payment of reasonable and customary out-of-pocket costs, subject to reimbursement by Buyer) or give any indemnities (for financings of such typewhich Buyer does not provide an indemnity pursuant to Section 5.12(d)(ii)) prior to the Closing, (iB) cooperating unreasonably interfere with internal and external counsel the ongoing business or operations of Buyer in connection with providing the Company or Company Subsidiaries, (C) require the Company or any Company Subsidiaries to enter into or approve any agreement or other documentation effective prior to the Closing (other than customary back-up certificates and factual information regarding any legal opinion that such counsel may be required management representation letters to deliver accountants in connection with the Debt Financing, in each case, solely to the extent reasonable delivery of comfort letters and customary for financings authorization letters), (D) result in any conflict with the Company’s certificate of such typeformation or the Company’s limited liability company agreement or (E) reasonably be expected to result in a violation of applicable Law, and (jii) obtaining and providing documents to Buyer no action, liability or obligation (including draft payoff lettersany obligation to pay any commitment or other fees or reimburse any expenses) of the Company, Company Subsidiaries, or any of their respective representatives under any certificate, agreement, arrangement, document or instrument relating to the repayment of the Indebtedness and the release of related guarantees and Liens Financing (other than customary management representation letters to accountants in accordance connection with the terms delivery of this Agreementcomfort letters and customary authorization letters) shall be effective until the Closing. The Company Seller hereby consents, on behalf of itself and the Group Companies, consents to the use of the Company’s and Company Subsidiaries’ logos of the Group Companies in connection with the Debt FinancingFinancing in a form and manner mutually agreed with the Company; provided provided, however, that such logos are used solely in a manner that is not intended tointended, nor is or reasonably likely tolikely, to harm or disparage the Company’s or any of its Affiliates’ reputation or goodwill.
8.11.2. Notwithstanding anything in this Agreement to the contrary, (a) no Group Company nor any of their respective Representatives shall be required, under the provisions of this Section 8.11 or otherwise in connection with the Debt Financing, to pay any commitment or other similar fee or enter into any binding agreement (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) or commitment or incur any other actual or potential liability or obligation in connection with the Debt Financing prior to the Closing that is not advanced by Buyer, (b) no Group Company or any of their respective Representatives, managers, officers or employees shall be required to execute or enter into, perform or authorize any agreement with respect to the Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) that is not contingent upon the Closing or that would be effective prior to the Closing Date, (c) no Representative, manager, officer or employee of any Group Company shall be required to deliver any certificate or take any other action pursuant to this Section 8.11 to the extent any such action would reasonably be expected to result in personal liability to such Representative, manager, officer or employee, (d) no Group Company or their respective Representatives shall be required to take any action that would reasonably be expected, in the reasonable judgment of the Company, to conflict with, or result in any violation or breach of, any applicable Laws, any organizational documents of any Group Company, any contract or obligations of confidentiality (not created in contemplation hereof) binding on any Group Company, (e) no Group Company or any of their respective Representatives shall be required to take any action that would cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement, (f) no Group Company or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, the Company has, in its good faith, determined is not true, (g) no Group Companies or their respective Representatives shall be required to provide, and the Buyer will be solely responsible for the preparation of: (1) pro forma financial information; (2) any description of all or any component of the Debt Financing; or (3) projections, risk factors or other forward-looking statements relating to all or any component of the Debt Financing; and (h) no Group Company shall be required to provide access to or disclose information that the Company determines would jeopardize any attorney–client privilege or other similar privilege of the Company or any of its Subsidiaries. Promptly upon request by the Company, Xxxxx will reimburse the Company for any reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Company, the Company Subsidiaries or any of their Representatives in connection with the cooperation of the Company, the Company Subsidiaries and their Representatives contemplated by this Section 8.11. Except in the case of fraud or a breach of this Agreement, Buyer shall indemnify, defend, and hold harmless the Group Companies and their respective Representatives from and against any and all losses, damages, awards, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecution, investigation, defense or settlement of any of the foregoing) and other amounts suffered or incurred by them in connection with (i) any action taken by them at the request of Buyer pursuant to this Section 8.11 or in connection with the arrangement of the Debt Financing or (ii) any information utilized in connection therewith, and the foregoing obligations shall survive termination of this Agreement and the occurrence of the Closing. In addition, no action, liability or obligation of the Company, any of the Company Subsidiaries or any of their respective Representatives pursuant to Subsidiaries or the reputation or goodwill of any certificate, agreement, arrangement, document or instrument relating to any Debt Financing (other than the execution of the authorization letters referred to in clause foregoing.
(c)(iid) of Section 8.11.1Buyer shall (i) will be effective until the Closing Date. All materialpromptly upon request by Seller, non-public information regarding the Group Companies provided to Buyer or any reimburse Seller for all of its Representatives pursuant to this Section 8.11 shall be kept confidential reasonable and documented out-of-pocket fees and expenses (including reasonable fees and expenses of counsel and accountants) incurred by them in accordance with the Confidentiality Agreement except for disclosure to potential investors as required in connection with the Debt Financing subject to customary confidentiality protections. Notwithstanding anything to the contrarySeller, the Company shall be deemed to have complied with this Section 8.11 for all purposes of this Agreement (including Article 6 and Article 7) unless the Debt Financing has not been obtained primarily as a result Company, any of the Company’s Willful Breach Subsidiaries, any of its obligations under or their representatives in connection with any cooperation contemplated by this Section 8.11. Notwithstanding anything herein to 5.12 and (ii) indemnify and hold harmless Seller, the contraryCompany, Xxxxx acknowledges the Company’s Subsidiaries and agrees that obtaining its and their officers, directors, principals, partners, managers, members, attorneys, accountants, agents, employees, consultants, financial advisors or other authorized representatives against any Debt 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 is not and any information used 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 gross negligence, fraud or willful misconduct of Seller, the Company, any of the Company’s Subsidiaries or any of their respective officers, directors, principals, partners, managers, members, attorneys, accountants, agents, employees, consultants, financial advisors or other authorized representatives as finally determined by a condition to the Closingcourt of competent jurisdiction.
Appears in 1 contract
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, (a) The Seller agrees to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (x) provide Seller and the Company with written notice that such Debt Financing has been obtained and (y) deliver (or cause to be delivered) to Seller and the Company true, correct and complete copies of all arrangements pursuant to which any Financing Parties shall have committed to provide any portion of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further that, in no event shall the receipt of such Debt Financing be a condition to Closing and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. Prior to the Closing, subject to Section 8.11.2, the Company shall use reasonable best efforts to, and shall cause each of the Companies and their respective Subsidiaries and Representatives to use their reasonable best efforts to cause the Company Subsidiaries and its and their respective Representatives to, in each case at Buyer’s sole expense, provide to Buyer such cooperation as the Buyer may reasonably requested by Buyer that is reasonably necessary in arranging, obtaining and syndicating the Debt Financing, if any (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the operations of the Group Companies), including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies as may be reasonably requested by Buyer for the completion of the Debt Financing, (b) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies in connection with the Debt Financing to the extent reasonable and customary for financings of such type, (c) reasonably assisting in the preparation of (i) customary bank information memoranda, lender and investor presentations, offering documents, offering or private placement memoranda and other similar marketing documents and due diligence efforts for the Debt Financing and (ii) customary authorization and representation letters, each as required request in connection with the Debt Financing, authorizing the distribution including with respect to (i) having senior management assist in preparation for and participation in a reasonable number of information to lender marketing meetings and calls and a reasonable number of other due diligence sessions with prospective lenders and containing a representation that the public side of such documents, if any, do not include any information about any Group Company or any securities of any Group Company that would constitute material non-public information within the meaning of the United States federal and state securities laws if any Group Company were a public reporting company, (d) using reasonable best efforts to cause the Company’s independent registered accounting firm to provide customary assistance, including (i) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) ratings agencies in each case in connection with any capital markets transaction comprising a part of obtaining the Debt Financing, including direct contact between such senior management and the Debt Financing Sources and other potential lenders in the Debt Financing, (ii) promptly providing pertinent and customary consents to documentation and information regarding the inclusion of Companies and their audit report in respect of any financial statements of the Company respective Subsidiaries (including information required under “know your customer”, beneficial ownership and the Company Subsidiaries in any offering documents relating to the Debt Financing anti-money laundering rules and (iii) reasonable assistance and cooperation to Buyer with respect to any auditor due diligence, (e) subject to and conditioned on the occurrence of the Closing, the taking of customary corporate actions reasonably necessary to permit the consummation of and funding of the Debt Financing, (f) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth in any definitive document relating to the Debt Financing to the extent satisfaction of such condition requires the cooperation of, or is within the control of, the Group Companies, (g) delivering to Buyer regulations at least three (3) Business Days prior in advance of Closing; provided a written request from the Debt Financing Sources has been made to the Closing all such documentation and information as is reasonably requested in writing by Buyer either Company at least ten (10) Business Days prior to in advance of the Closing to the extent required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulationsClosing), including then-available financial statements and financial projections, the PATRIOT Act Required Information and other pertinent financial information regarding the requirements of 31 C.F.R. §1010.230, (h) facilitating Companies and assisting their respective Subsidiaries as may be reasonably requested by the Buyer in the preparation and delivery of any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents relating order to consummate the Debt Financing relating or that is customarily needed for financings of the type contemplated by the Debt Commitment Letter, including for the avoidance of doubt, information to enable the Buyer to prepare pro forma financial statements, giving effect to the Group Companies, transactions contemplated by this Agreement (and their respective businesses to be included in the definitive documents relating to the Debt Financing, and assist with the execution and delivery of the same, in each case, solely other than information for which the Companies are dependent on information to be provided by the Buyer, unless such information is provided to the extent Companies by the Buyer in a timely and reasonable and customary for financings of such typefashion), (iiii) cooperating with internal assisting in making arrangements for, the pledge of collateral and external counsel the granting of Buyer in connection with providing customary back-up certificates and factual information regarding any legal opinion that such counsel may be required to deliver security interests in connection with the Debt Financing, in each case, solely to the extent reasonable required for closing under the Debt Commitment Letter and subject to any funds certain provisions contained therein, including the execution and delivery of documents in connection with the pledge and perfection of liens and security (including customary pledge and security documents, control agreements, mortgages, currency or interest hedging arrangements or other customary definitive financing documents, surveys, and title insurance) and the providing of guarantees supporting the Debt Financing and related documentation, including customary officer’s certificates, perfection certificates, schedules, documents and instruments and a solvency certificate from the chief financial officer or equivalent of the Companies in the form attached as Annex I to Exhibit C to the Debt Commitment Letter and other customary documents as may be reasonably requested by the Buyer, (iv) causing the taking of corporate (or similar) actions by the Companies reasonably necessary to permit the completion of the Debt Financing, subject to the occurrence of the Closing, (v) assisting in the preparation of and execution and delivery of the definitive documents with respect to the Debt Financing, subject to the occurrence of the Closing, (vi) permitting representatives of the prospective Debt Financing Sources to conduct commercial field examinations, inventory and intellectual property appraisals, Phase I environmental assessments and an appraisal of the owned real property, and making audits and appraisals delivered for financings the purposes of such typeany credit facility available to the Buyer for purposes of the Financing, (vii) promptly following any request by the Buyer, delivering all necessary notices and other information required under the Existing Credit Facility to arrange for the termination of any guarantee and Lien, as applicable, executed and delivered by the Companies and their respective Subsidiaries under the Existing Credit Facility and (viii) cooperating with the Buyer in order to satisfy on a timely basis the conditions precedent to the Debt Financing; provided, that, in the case of each of the foregoing clauses, (A) neither the Seller, any of the Companies nor any of their respective Representatives shall be required to pay (or agree to pay) any commitment or other fee prior to the Closing or provide any indemnities or incur any liability or enter into any agreement in connection with the Debt Financing (other than agreements entered into and liabilities incurred by the Companies that only become effective upon the consummation of the Closing), (B) no personal liability shall be imposed on the Representatives of the Seller or any of the Companies involved, and (jC) obtaining the Seller and providing documents the Companies and their respective officers and employees shall not be required to take any action that would unreasonably interfere with the operation of the business of the Companies or require any director, officer or employee of the Seller or the Companies to execute any solvency certificate or similar document that becomes effective prior to the Closing Date.
(b) The Buyer (including draft payoff lettersi) relating to shall reimburse the repayment Companies (upon delivery of reasonably detailed back up information) for all reasonable and documented out-of-pocket costs incurred by the Companies in connection with the cooperation contemplated by Section 6.09(a) and (ii) shall indemnify and hold harmless the Seller, the Companies, their respective Affiliates and their respective directors, managers, officers, employees, representatives, consultants, financial advisors, attorneys, accountants or other agents from and against any and all losses suffered or incurred by them in connection with the arrangement of the Indebtedness Debt Financing and the release performance of related guarantees their respective obligations under Section 6.09(a) and Liens any information used in accordance with the terms of this Agreement. The Company hereby consents, connection therewith (other than information provided by or on behalf of itself the Companies or their Affiliates); provided, however, that the Companies (and not the Buyer) shall be responsible for (1) fees payable to existing legal, financial or other advisors of the Companies with respect to services provided prior to the Closing, (2) any ordinary course amounts payable to existing employees of or consultants to the Companies or any of their Affiliates with respect to services provided prior to the Closing and (3) any amounts that would have been incurred in connection with the transactions contemplated hereby regardless of the Debt Financing.
(c) The Companies and the Group Companies, Seller hereby consent to the reasonable use of the logos all of the Group Companies Companies’ and their respective Subsidiaries’ logos, names and trademarks in connection with the Debt Financing; provided that such logos are logos, names and trademarks shall be used solely in a manner that is not intended to, nor is or reasonably likely to, to harm or disparage the Company’s Companies or any of its Affiliates’ their respective Subsidiaries, or their reputation or goodwill.
8.11.2. Notwithstanding anything in this Agreement to the contrary, (a) no Group Company nor any of their respective Representatives shall be required, under the provisions of this Section 8.11 or otherwise in connection with the Debt Financing, to pay any commitment or other similar fee or enter into any binding agreement (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) or commitment or incur any other actual or potential liability or obligation in connection with the Debt Financing prior to the Closing that is not advanced by Buyer, (b) no Group Company or any of their respective Representatives, managers, officers or employees shall be required to execute or enter into, perform or authorize any agreement with respect to the Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) that is not contingent upon the Closing or that would be effective prior to the Closing Date, (c) no Representative, manager, officer or employee of any Group Company shall be required to deliver any certificate or take any other action pursuant to this Section 8.11 to the extent any such action would reasonably be expected to result in personal liability to such Representative, manager, officer or employee, (d) no Group Company or their respective Representatives shall be required to take any action that would reasonably be expected, in the reasonable judgment of the Company, to conflict with, or result in any violation or breach of, any applicable Laws, any organizational documents of any Group Company, any contract or obligations of confidentiality (not created in contemplation hereof) binding on any Group Company, (e) no Group Company or any of their respective Representatives shall be required to take any action that would cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement, (f) no Group Company or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, the Company has, in its good faith, determined is not true, (g) no Group Companies or their respective Representatives shall be required to provide, and the Buyer will be solely responsible for the preparation of: (1) pro forma financial information; (2) any description of all or any component of the Debt Financing; or (3) projections, risk factors or other forward-looking statements relating to all or any component of the Debt Financing; and (h) no Group Company shall be required to provide access to or disclose information that the Company determines would jeopardize any attorney–client privilege or other similar privilege of the Company or any of its Subsidiaries. Promptly upon request by the Company, Xxxxx will reimburse the Company for any reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Company, the Company Subsidiaries or any of their Representatives in connection with the cooperation of the Company, the Company Subsidiaries and their Representatives contemplated by this Section 8.11. Except in the case of fraud or a breach of this Agreement, Buyer shall indemnify, defend, and hold harmless the Group Companies and their respective Representatives from and against any and all losses, damages, awards, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecution, investigation, defense or settlement of any of the foregoing) and other amounts suffered or incurred by them in connection with (i) any action taken by them at the request of Buyer pursuant to this Section 8.11 or in connection with the arrangement of the Debt Financing or (ii) any information utilized in connection therewith, and the foregoing obligations shall survive termination of this Agreement and the occurrence of the Closing. In addition, no action, liability or obligation of the Company, any of the Company Subsidiaries or any of their respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to any Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) will be effective until the Closing Date. All material, non-public information regarding the Group Companies provided to Buyer or any of its Representatives pursuant to this Section 8.11 shall be kept confidential by them in accordance with the Confidentiality Agreement except for disclosure to potential investors as required in connection with the Debt Financing subject to customary confidentiality protections. Notwithstanding anything to the contrary, the Company shall be deemed to have complied with this Section 8.11 for all purposes of this Agreement (including Article 6 and Article 7) unless the Debt Financing has not been obtained primarily as a result of the Company’s Willful Breach of its obligations under this Section 8.11. Notwithstanding anything herein to the contrary, Xxxxx acknowledges and agrees that obtaining any Debt Financing is not a condition to the Closing.
Appears in 1 contract
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (xa) provide Seller and the Company with written notice that such Debt Financing has been obtained and (y) deliver (or cause to be delivered) to Seller and the Company true, correct and complete copies of all arrangements pursuant to which any Financing Parties shall have committed to provide any portion of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further that, in no event shall the receipt of such Debt Financing be a condition to Closing and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. Prior to the Closing, subject to Section 8.11.2Closing Date, the Company shall use reasonable best efforts to, and shall cause its Subsidiaries to use reasonable best efforts to, and shall use reasonable best efforts to cause the Company Subsidiaries its and its Subsidiaries’ respective Affiliates, Representatives, employees, officers and their respective Representatives directors to, in each case at Buyer’s sole expense, provide to Buyer Parent such cooperation reasonably requested by Buyer that is reasonably necessary in arranging, obtaining and syndicating the Debt Financing, if any (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the operations of the Group Companies), including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies as may be reasonably requested by Buyer Parent with respect to the Debt Financing (which term, for purposes of this Section 5.17, shall include the completion financing contemplated by the Commitment Letter as permitted to be amended, supplemented or modified by Section 5.16 (and, if applicable, shall include any Alternative Debt Financing used to satisfy Parent’s obligations under this Agreement) and any other debt securities issued in lieu of all or any part of the Debt FinancingBridge Facility or the Funded Bridge Facility (in each case as defined in Exhibit A to the Commitment Letter)); provided that such requested cooperation does not materially and adversely interfere with operations of the Company. Such cooperation shall include, without limitation:
(bi) participating using reasonable best efforts to participate in telephonic meetings and otherwise reasonably assisting with the preparation a reasonable number of appropriate and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) , marketing efforts (including lender meetings and sessions with calls), drafting sessions, rating agencies agency presentations and road shows in connection with the Debt Financing including direct contact between senior management (with appropriate seniority and expertise) and Representatives (including accountants) of the Company, on the one hand, and the Lenders, potential lenders and investors for the Debt Financing, on the other hand;
(ii) using reasonable best efforts to the extent reasonable provide information requested by Parent for its preparation of, and customary for financings of such type, (c) reasonably assisting to otherwise assist in the preparation of (i) customary of, materials for bank information memoranda, lender and investor marketing materials, rating agency presentations, offering documents, offering or private placement memoranda memoranda, prospectuses, road shows and other similar marketing documents and due diligence efforts for required in connection with the Debt Financing and the marketing thereof, to the extent such information is reasonably available to the Company and its Subsidiaries;
(iiiii) customary authorization using reasonable best efforts to assist Parent in connection with the preparation of pro forma financial information and representation letters, each as required financial statements contemplated by the Commitment Letter or otherwise reasonably requested by Parent in connection with the Debt Financing, authorizing to the distribution of extent such information is reasonably available to prospective lenders the Company and containing a representation that the public side of such documentsits Subsidiaries; provided that, if anyrequested by the Company, do not include any Parent shall have provided the Company with information about any Group relating to the proposed debt and equity capitalization that is required for such pro forma financial information in financial reports;
(iv) using reasonable best efforts to assist in the review of disclosure schedules related to the Debt Financing for completeness and accuracy;
(v) as promptly as reasonably practicable (A) furnishing Parent’s financing sources (including the Debt Financing sources) and their respective Representatives with the Required Information (and updating the same from time-to-time so that it is Compliant) and (B) informing Parent if the Company or any securities of its Subsidiaries shall have knowledge of any Group Company facts that would constitute material nonlikely require the restatement of any financial statements for such financial statements to comply with GAAP;
(vi) assisting in the preparation and negotiation of any pledge and security documents, blocked account agreements, other definitive financing documents, or other customary certificates or documents as are required to be delivered under the Commitment Letter at or prior to Closing and otherwise facilitating the pledging of collateral (including (x) cooperation in connection with the pay-public information within off of existing Indebtedness and the meaning release of related Liens and termination of security interests and (y) cooperation in connection with Parent’s efforts to obtain environmental assessments and title insurance);
(vii) cooperation with the redemption, defeasance or discharge of any Indebtedness of the United States federal Company or its Subsidiaries, including the Company Notes, including sending one or more customary notices of redemption upon the request of Parent in respect of the Company Notes (which notices shall be conditional upon the occurrence of the Merger);
(viii) assisting Parent to obtain any necessary waivers, consents, estoppels and state securities laws if approvals in connection with the Debt Financing from other parties to material leases, encumbrances and Contracts relating to the Company and its Subsidiaries;
(ix) taking reasonable actions necessary to permit the Debt Financing sources to evaluate the Company and its Subsidiaries’ current assets, cash management and accounting systems, and policies and procedures relating thereto, for the purposes of establishing collateral arrangements as of the Closing and to assist with other collateral audits and due diligence examinations;
(x) taking all corporate actions, subject to the occurrence of the Closing, reasonably necessary to authorize the consummation of the Debt Financing and to permit the proceeds thereof (together with any Group cash on hand of the Company were a public reporting companyto the extent to be used to finance the transactions), to be made available on the Closing Date to consummate the Merger and the other transactions contemplated by this Agreement;
(dxi) using reasonable best efforts to cause the Company’s its independent registered accounting firm accountants to provide customary assistance, including (i) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) in connection with any capital markets transaction comprising a part of the Debt Financing, (ii) providing customary consents to the inclusion of their audit report in respect of any financial statements of the Company and the Company Subsidiaries in any offering documents relating to the Debt Financing and (iii) reasonable assistance and cooperation to Buyer Parent, including participating in drafting sessions and accounting due diligence sessions, assisting in the preparation of pro forma financial statements, and providing any necessary “comfort letters” and accountants’ consents in connection with respect to any auditor due diligence, (e) subject to and conditioned on the occurrence use of the Closing, the taking of customary corporate actions reasonably necessary to permit the consummation of Company’s financial statements in offering documents and funding of the Debt Financing, prospectuses; and
(fxii) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth in any definitive document relating to the Debt Financing to the extent satisfaction of such condition requires the cooperation of, or is within the control of, the Group Companies, (g) delivering to Buyer providing at least three four (34) Business Days prior to the Closing Date all such documentation and other information as is reasonably requested in writing by Buyer at least ten (10) Business Days prior to the Closing to the extent required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and the requirements of 31 C.F.R. §1010.230Act, (h) facilitating and assisting in the preparation and delivery of any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents relating to the Debt Financing relating to the Group Companies, and their respective businesses to be included in the definitive documents relating to the Debt Financing, and assist with the execution and delivery of the same, in each case, solely to the extent reasonable requested at least nine (9) Business Days prior to the Closing Date; provided, however, that (a) no obligation of the Company or any of its Subsidiaries under any certificate, document or instrument delivered pursuant to this Section 5.17(a) shall be effective until the Effective Time and customary for financings none of the Company or any of its Subsidiaries shall be required to take any action under any such typecertificate, document or instrument that it is a party to that is not contingent upon the Closing (iincluding the entry into any agreement that is effective before the Effective Time) cooperating with internal or that would be effective prior to the Effective Time, and external counsel (b) neither the Company nor any of Buyer in connection with providing customary back-up certificates and factual its Subsidiaries shall be required to issue any offering or information regarding any legal opinion document; provided, further that such counsel the Company may be required to deliver provide customary authorization and representation letters in connection with the marketing of the Debt Financing.
(b) 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 in each caseconnection with its cooperation contemplated by Section 5.17(a) and shall indemnify and hold harmless the Company, solely its Subsidiaries and their respective Representatives from and against any and all losses, damages, claims, costs or expenses suffered or incurred by any of them in connection with such cooperation, the arrangement of the Debt Financing and/or any information used in connection therewith, except (x) with respect to any information provided by the Company or any of its Subsidiaries expressly for use in connection therewith, or (y) to the extent reasonable and customary for financings suffered or incurred as a result of any such typeindemnitee’s, and (j) obtaining and providing documents to Buyer (including draft payoff letters) relating to the repayment of the Indebtedness and the release of related guarantees and Liens in accordance with the terms or such indemnitee’s respective Representative’s, gross negligence, bad faith, willful misconduct or material breach of this Agreement. .
(c) The Company hereby consents, on behalf of itself and the Group Companies, consents to the reasonable use of the its and its Subsidiaries’ logos of the Group Companies in connection with syndication and underwriting of the Debt Financing; provided that such logos are used solely in a manner that is not intended to, nor is to or reasonably likely to, to harm or disparage the Company’s Company or any of its Affiliates’ Subsidiaries or the reputation or goodwill.
8.11.2. Notwithstanding anything in this Agreement to the contrary, (a) no Group Company nor any of their respective Representatives shall be required, under the provisions of this Section 8.11 or otherwise in connection with the Debt Financing, to pay any commitment or other similar fee or enter into any binding agreement (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) or commitment or incur any other actual or potential liability or obligation in connection with the Debt Financing prior to the Closing that is not advanced by Buyer, (b) no Group Company or any of their respective Representatives, managers, officers or employees shall be required to execute or enter into, perform or authorize any agreement with respect to the Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) that is not contingent upon the Closing or that would be effective prior to the Closing Date, (c) no Representative, manager, officer or employee of any Group Company shall be required to deliver any certificate or take any other action pursuant to this Section 8.11 to the extent any such action would reasonably be expected to result in personal liability to such Representative, manager, officer or employee, (d) no Group Company or their respective Representatives shall be required to take any action that would reasonably be expected, in the reasonable judgment of the Company, to conflict with, or result in any violation or breach of, any applicable Laws, any organizational documents of any Group Company, any contract or obligations of confidentiality (not created in contemplation hereof) binding on any Group Company, (e) no Group Company or any of their respective Representatives shall be required to take any action that would cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement, (f) no Group Company or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, the Company has, in its good faith, determined is not true, (g) no Group Companies or their respective Representatives shall be required to provide, and the Buyer will be solely responsible for the preparation of: (1) pro forma financial information; (2) any description of all or any component of the Debt Financing; or (3) projections, risk factors or other forward-looking statements relating to all or any component of the Debt Financing; and (h) no Group Company shall be required to provide access to or disclose information that the Company determines would jeopardize any attorney–client privilege or other similar privilege goodwill of the Company or any of its Subsidiaries. Promptly upon request by .
(d) Notwithstanding anything to the Company, Xxxxx will reimburse the Company for any reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Company, the Company Subsidiaries or any of their Representatives contrary contained in connection with the cooperation of the Company, the Company Subsidiaries and their Representatives contemplated by this Section 8.11. Except in the case of fraud or a breach of this Agreement, Buyer each of the parties: (i) agrees that all claims, whether in law or in equity, whether in contract or in tort or otherwise, against any lender party with respect to the Debt Financing (the “Lenders”) (which defined term shall indemnify, defend, and hold harmless include the Group Companies Lenders and their respective Representatives from Affiliates, equityholders, members, partners, officers, directors, employees, agents, advisors and representatives involved in the Debt Financing) relating to this Agreement or the transactions contemplated hereby, including any dispute arising out of or relating in any way to the Commitment Letter, the Debt Financing, the Definitive Debt Agreements or the performance thereof, shall be brought only in the Supreme Court of the State of New York, County of New York, or if under applicable Law exclusive jurisdiction is vested in the federal courts, the United States District Court of the Southern District of New York (and appellate courts thereof); (ii) agrees that all claims or causes of action (whether at law, in equity, in contract, in tort or otherwise) against any and all losses, damages, awards, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecution, investigation, defense or settlement of any of the foregoing) and other amounts suffered or incurred by them Lenders in connection with (i) any action taken by them at the request of Buyer pursuant way relating to this Section 8.11 or in connection with the arrangement of the Debt Financing or (ii) any information utilized in connection therewiththe performance thereof, shall be governed by, and construed in accordance with, the foregoing obligations shall survive termination of this Agreement and the occurrence laws of the Closing. In additionState of New York, no action, liability or obligation without regard to laws that may be applicable under conflicts of laws principles (whether of the Company, State of New York or any other jurisdiction) that would cause the application of the Company Subsidiaries or Law of any of their respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to any Debt Financing (jurisdiction other than the execution State of the authorization letters referred to in clause New York; and (c)(iiiii) of Section 8.11.1) will be effective until the Closing Date. All material, non-public information regarding the Group Companies provided to Buyer or any of its Representatives pursuant to this Section 8.11 shall be kept confidential by them in accordance with the Confidentiality Agreement except for disclosure to potential investors as required in connection with the Debt Financing subject to customary confidentiality protectionsHEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THE DEBT FINANCING OR THE PERFORMANCE THEREOF. Notwithstanding anything to the contrarycontrary in this Agreement, neither the Company nor any of its Affiliates shall have any rights or claims against the Lenders in connection with this Agreement, the Company shall be deemed Debt Financing, the Commitment Letter, the transactions contemplated hereby or thereby (and any abandonment or termination thereof) or any matter forming the basis for any such termination, whether at law or equity, in contract, tort or otherwise, including, but not limited to, the right to have complied with this Section 8.11 for all purposes of this Agreement (including Article 6 and Article 7) unless specifically enforce the Commitment Letter to cause the Lenders to consummate the Debt Financing has not been obtained primarily as a result of the Company’s Willful Breach of its obligations under this Section 8.11Financing. Notwithstanding anything herein to the contrarycontrary contained in this Agreement, Xxxxx acknowledges the Lenders are intended third party beneficiaries of, and agrees that obtaining any Debt Financing is not a condition shall be entitled to the Closingprotections of, this Section 5.17(d), and this Section 5.17(d) may not be amended, supplemented, waived or otherwise modified in a manner adverse to the Lenders without the prior written consent of the Lenders.
Appears in 1 contract
Samples: Merger Agreement (Lions Gate Entertainment Corp /Cn/)
Financing Cooperation. 8.11.1. Buyer may determine, in ¤ Seller shall and shall cause its sole discretion, Subsidiaries to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (x) provide Seller and the Company with written notice that such Debt Financing has been obtained and (y) deliver (or cause to be delivered) to Seller and the Company true, correct and complete copies of all arrangements pursuant to which any Financing Parties shall have committed to provide any portion of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further that, in no event shall the receipt of such Debt Financing be a condition to Closing and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. Prior to the Closing, subject to Section 8.11.2, the Company shall use commercially reasonable best efforts to, and shall use commercially reasonable best efforts to cause the Company Subsidiaries and its and their respective Representatives to, in each case provide to Buyer, at Buyer’s sole expense, provide to Buyer such cooperation reasonably requested by Buyer that is reasonably necessary in arranging, obtaining and syndicating the Debt Financing, if any (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere connection with the operations of the Group Companies), including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies Financing as may be reasonably requested by Buyer for the completion of the Debt Financing, (b) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and that is customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies in connection with the Debt arrangement of debt financings in acquisition transactions; including:
(i) assisting in preparation for and participation at reasonable times and upon reasonable advance notice in a reasonable number of meetings and calls, drafting sessions, road shows, rating agency presentations and due diligence sessions and sessions with prospective lenders;
(ii) assisting Buyer and the Financing to the extent reasonable and customary for financings of such type, (c) reasonably assisting Sources in the preparation of (iA) customary bank information memoranda, lender and investor presentations, offering documents, offering or private placement memoranda and other similar marketing documents and due diligence efforts for the Debt Financing and (ii) customary authorization and representation letters, each as required in connection with the Debt Financing, authorizing the distribution of information to prospective lenders and containing a representation that the public side identifying any portion of such documentsinformation that constitutes material, if anynonpublic information and (B) customary materials for rating agency presentations;
(iii) as promptly as reasonably practicable and in any event prior to the Closing, do furnishing Buyer and the Financing Sources and their respective Representatives with historical financial and other pertinent information regarding the Business as may be reasonably requested in writing by Buyer, provided, however, that Seller shall not include any information about any Group Company or any securities of any Group Company that would constitute material non-public information within the meaning of the United States federal and state securities laws if any Group Company were a public reporting company, (d) using reasonable best efforts to cause the Company’s independent registered accounting firm 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 assistance, including (i) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) consents from the independent auditors who prepared the Audited Financial Statements consistent with the requirements of Applicable Law in connection with any capital markets transaction comprising a part the use of the Debt Financing, Audited Financial Statements in offering documents or current reports on Form 8-K and other documents to be filed with the SEC;
(iiv) providing customary consents assisting Buyer in connection with the preparation of pro forma financial information and financial statements to the inclusion 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 their audit report pro forma financial statements reflecting any period earlier than those reflected in respect 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 statements information requested by Buyer to be delivered by the Business (excluding any information that would customarily be prepared with the cooperation of the Company and the Company Subsidiaries in any offering documents relating to the Debt Financing and Business);
(iiivi) reasonable assistance and cooperation to Buyer with respect to any auditor due diligencetaking customary corporate actions, (e) subject to and conditioned on the occurrence of the Closing, the taking of customary corporate actions reasonably requested by Buyer that are necessary to permit the consummation of and funding of the Debt Financing, ;
(fvii) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth in any definitive document relating to the Debt Financing to the extent satisfaction of such condition requires the cooperation of, or is within the control of, the Group Companies, (g) delivering to Buyer providing at least three (3) Business Days prior to the Closing Date all such documentation and other information as is reasonably requested in writing by Buyer at least ten (10) about the Business Days prior to the Closing to the extent required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, regulations including the USA PATRIOT Act and the requirements of 31 C.F.R. §1010.230, (h) facilitating and assisting in the preparation and delivery of any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents relating to the Debt Financing relating to the Group Companies, and their respective businesses to be included in the definitive documents relating to the Debt Financing, and assist with the execution and delivery of the same, in each case, solely to the extent reasonable and customary for financings of such type, reasonably requested at least ten (i10) cooperating with internal and external counsel of Buyer 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 Debt Financing, in each case, solely Business Days prior to the extent reasonable and customary for financings of such type, and (j) obtaining and providing documents to Buyer (including draft payoff letters) relating to the repayment of the Indebtedness and the release of related guarantees and Liens in accordance with the terms of this Agreement. The Company hereby consents, on behalf of itself and the Group Companies, to the use of the logos of the Group Companies in connection with the Debt Financing; provided that such logos are used solely in a manner that is not intended to, nor is reasonably likely to, harm or disparage the Company’s or any of its Affiliates’ reputation or goodwill.
8.11.2anticipated Closing Date. Notwithstanding anything in this Agreement to the contrary, (ax) no Group Company (A) neither Seller nor any of their respective Representatives its Subsidiaries shall be requiredrequired to commit to take any action that (i) is not contingent upon the Closing, under (ii) would be effective prior to the provisions Closing, (iii) would encumber any assets of this Section 8.11 the Business prior to the Closing or otherwise (iv) would encumber any assets of Seller or any of its Subsidiaries other than assets of the Business, at any time; and (B) neither Seller nor any of its Subsidiaries shall be required to (1) take any action that would result in connection with the Debt Financinga breach of any contract, violate any Applicable Law or subject it to pay any commitment actual or other similar fee potential Liability, (2) bear (or enter into any binding agreement with respect to) any cost or expense (other than the execution of the authorization letters referred to as provided in clause this Agreement), or (c)(ii3) of Section 8.11.1pay (or enter into any binding agreement with respect to) any commitment or commitment other fee or make any other payment or incur any other actual Liability or potential liability provide or obligation in connection with the Debt Financing prior agree to the Closing that is not advanced by Buyer, provide any indemnity; and; (by) no Group Company or neither Seller nor any of their respective Representatives, managers, officers its Subsidiaries or employees Representatives shall be required to execute or enter into, perform or authorize take any agreement with respect to the Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of action under this Section 8.11.1) that is not contingent upon the Closing or 7.14 that would be effective prior to unreasonably interfere with the Closing Date, business or operations of Seller or its Subsidiaries; and (cz) no Representative, manager, officer neither Seller nor any of its Subsidiaries or employee of any Group Company shall be required to deliver any certificate or take any other action pursuant to this Section 8.11 to the extent any such action would reasonably be expected to result in personal liability to such Representative, manager, officer or employee, (d) no Group Company or their respective Representatives shall be required to take any action that would reasonably will conflict with or violate their respective organizational documents.
(i) Seller shall deliver or cause to be expected, in the reasonable judgment delivered to Buyer an unaudited balance sheet of the CompanyBusiness as of December 31, to conflict with, or result in any violation or breach of, any applicable Laws, any organizational documents of any Group Company, any contract or obligations of confidentiality (not created in contemplation hereof) binding on any Group Company, (e) no Group Company or any of their respective Representatives shall be required to take any action that would cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement, (f) no Group Company or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, the Company has, in its good faith, determined is not true, (g) no Group Companies or their respective Representatives shall be required to provide2014, and the Buyer will be solely responsible related unaudited statements of earnings, cash flows and changes in stockholders equity of the Business for the preparation of: period commencing on October 1, 2014 and ending on December 31, 2014 (1the “Business Q1 Interim Financial Statements”) pro forma financial information; 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) any description of all or any component of days before the Debt Financing; or (3) projectionsClosing Date unless the Closing Date is after February 26, risk factors or other forward-looking statements relating to all or any component of the Debt Financing; and (h) no Group Company 2015 in which case they shall be required to provide access to or disclose information that delivered no later than seven (7) days before the Company determines would jeopardize any attorney–client privilege or other similar privilege of the Company or any of its Subsidiaries. Promptly upon request by the Company, Xxxxx will reimburse the Company for any reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Company, the Company Subsidiaries or any of their Representatives in connection with the cooperation of the Company, the Company Subsidiaries and their Representatives contemplated by this Section 8.11. Except in the case of fraud or a breach of this Agreement, Buyer shall indemnify, defend, and hold harmless the Group Companies and their respective Representatives from and against any and all losses, damages, awards, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecution, investigation, defense or settlement of any of the foregoing) and other amounts suffered or incurred by them in connection with (i) any action taken by them at the request of Buyer pursuant to this Section 8.11 or in connection with the arrangement of the Debt Financing or Closing Date.
(ii) any information utilized in connection therewithSeller shall deliver or cause to be delivered to Buyer an unaudited balance sheet of the Business as of March 31, 2015, and the foregoing obligations shall survive termination related unaudited statements of this Agreement earnings, cash flows and the occurrence changes in stockholders equity of the Closing. In additionBusiness for the period commencing on October 1, no action2014 and ending on March 31, liability or obligation 2015 (the “Business Q2 Interim Financial Statements”) together with the corresponding period for the immediately preceding fiscal year of the CompanyBusiness. The Business Q2 Interim Financial Statements shall be delivered if the Closing occurs on or after May 13, any of the Company Subsidiaries or any of their respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to any Debt Financing 2015 and shall be delivered as soon as available and in no event later than two (other than the execution of the authorization letters referred to in clause (c)(ii2) of Section 8.11.1) will be effective until days before the Closing Date. All material, non-public information regarding the Group Companies provided to Buyer or any of its Representatives pursuant to this Section 8.11 .
(iii) The Business Q1 Interim Financial Statements and Business Q2 Interim Financial Statements shall be kept confidential by them prepared in accordance with the Confidentiality Agreement except for disclosure to potential investors as required in connection with the Debt Financing subject to customary confidentiality protections. Notwithstanding anything to the contraryapplicable SEC rules and regulations (including Regulation S-X) and GAAP, the Company and shall be deemed to have complied reviewed by Seller’s independent registered public accountants in accordance with this Section 8.11 for all purposes of this Agreement applicable SEC rules and regulations (including Article 6 Regulation S-X) and Article 7) unless GAAP applicable to interim financial statements; provided that the Debt Financing has Business Q1 Interim Financial Statements do not been obtained primarily as a result of need to be so reviewed if the Company’s Willful Breach of its obligations under this Section 8.11. Notwithstanding anything herein to the contraryClosing occurs on or after May 13, Xxxxx acknowledges and agrees that obtaining any Debt Financing is not a condition to the Closing2015.
Appears in 1 contract
Samples: Asset and Stock Purchase Agreement (Regal Beloit Corp)
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (xa) provide Seller and the Company with written notice that such Debt Financing has been obtained and (y) deliver (or cause to be delivered) to Seller and the Company true, correct and complete copies of all arrangements pursuant to which any Financing Parties shall have committed to provide any portion of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further that, in no event shall the receipt of such Debt Financing be a condition to Closing and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. Prior to the Closing, subject to Section 8.11.2, Seller and the Company shall use reasonable best efforts toshall, and shall use reasonable best efforts to cause the appropriate representatives (including senior management) of the Company Subsidiaries to, use reasonable best efforts to provide the following cooperation as is reasonably requested by Buyer upon reasonable prior notice that is necessary and its and their respective Representatives tocustomary in accordance with the terms of the Debt Financing, in each case at the Buyer’s sole cost and expense, provide to Buyer such cooperation reasonably requested by Buyer that is reasonably necessary in arranging, obtaining and syndicating the Debt Financing, if any : (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the operations of the Group Companies), including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies as may be reasonably requested by Buyer for the completion of the Debt Financing, (bi) participating in telephonic meetings and otherwise reasonably assisting with the preparation a reasonable number of appropriate meetings, presentations and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies in connection with the Debt Financing to the extent reasonable and customary for financings of such type, (c) reasonably assisting in the preparation of (i) customary bank information memoranda, lender and investor presentations, offering documents, offering providers or private placement memoranda and other similar marketing documents and due diligence efforts for the Debt Financing and (ii) customary authorization and representation letters, each as required in connection with the Debt Financing, authorizing the distribution of information to prospective lenders and containing a representation that the public side of such documents, if any, do not include any information about any Group Company or any securities of any Group Company that would constitute material non-public information within the meaning of the United States federal and state securities laws if any Group Company were a public reporting company, (d) using reasonable best efforts to cause the Company’s independent registered accounting firm to provide customary assistance, including (i) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) in connection with any capital markets transaction comprising a part potential providers of the Debt Financing, (ii) reasonably assisting Buyer in its preparation of definitive financing documents, (iii) providing such reasonable and customary consents financial and non-financial information to the inclusion of their audit report in respect of any financial statements of Buyer and its Debt Financing Sources regarding the Company as is reasonably requested by them in connection with the Debt Financing, (iv) facilitating the execution and delivery of reasonable and customary certificates and other documentation required by the Debt Financing Sources and the Company Subsidiaries in any offering documents relating definitive documentation related to the Debt Financing and (iii) reasonable assistance and cooperation to Buyer with respect to any auditor due diligencereasonably requested by the Buyer, (e) subject to and conditioned on the occurrence of the Closing, (v) facilitate the taking pledging of, and perfection of security interests in the Interests, effective no earlier than Closing; provided, however, that the delivery of any original stock or membership interest certificates and other certificated securities and possessory collateral shall be delivered in escrow pending release at the Closing, (vi) assisting Buyer and the Debt Financing Sources in the timely preparation of any customary corporate actions syndication documents and materials, including confidential information memoranda, lender presentations, private placement memoranda, bank information memoranda, business projections, ratings agency presentations, customary and reasonably necessary available marketing materials and other similar documents to permit be used in connection with the consummation of and funding syndication of the Debt FinancingFinancing (including providing customary authorization letters authorizing the distribution of information to prospective lenders) and identifying any portion thereof as containing material, non-public information; provided, however, that neither Seller nor the Company shall be responsible in any manner for any pro forma adjustments relating to proposed debt and equity capitalization that is required to be made to the historical information for such pro forma financial information), (fvii) reasonably assisting requesting customary payoff letters and facilitate the release of any Liens and the termination of guarantees (if any) in Buyer’s efforts connection therewith subject to satisfy the conditions precedent set forth occurrence of Closing, (viii) providing all customary documentation and other information as requested in any definitive document relating to connection with the Debt Financing to the extent satisfaction of such condition requires the cooperation of, or is within the control of, the Group Companies, (g) delivering to Buyer and required under applicable “know your customer” and anti-money-laundering rules and regulations at least three (3) Business Days prior to the Closing all such documentation and information as is reasonably Date to the extent requested by the Buyer in writing by Buyer at least ten (10) Business Days days prior to the Closing to Date and (ix) delivering the extent required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act and the requirements of 31 C.F.R. §1010.230, (h) facilitating and assisting in the preparation and delivery of any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents relating to the Debt Financing relating to the Group Companies, and their respective businesses to be included in the definitive documents relating to the Debt Financing, and assist with the execution and delivery of the same, in each case, financial statements related solely to the extent reasonable Company and customary for financings of such type, (i) cooperating with internal its Subsidiaries and external counsel of Buyer 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 by the Debt Financing, in each case, solely Commitment Letter. Seller hereby consents to the extent reasonable and customary for financings of such type, and (j) obtaining and providing documents to Buyer (including draft payoff letters) relating to the repayment of the Indebtedness and the release of related guarantees and Liens in accordance with the terms of this Agreement. The Company hereby consents, on behalf of itself and the Group Companies, to the use of the Company’s logos of the Group Companies in connection with the Debt Financing; provided provided, however, that such logos are used solely in a manner that is not intended to, nor is to or reasonably likely to, to harm or disparage the Company or the reputation or goodwill of the Company and its Subsidiaries or their respective trademarks, products, services, offerings or Intellectual Property rights.
(b) Notwithstanding anything to the contrary in this Agreement, but without limiting the Company’s obligations under Section 6.13, neither Seller nor any of its Affiliates nor any of their respective officers, employees, representatives of agents will be required to (i) take any action that would unreasonably interfere with the ongoing operations of Seller or any of its Affiliates’ reputation or goodwill.
8.11.2. Notwithstanding anything in this Agreement to the contrary, (aii) no Group Company nor any of their respective Representatives provide or prepare, and Buyer shall be required, under the provisions of this Section 8.11 or otherwise in connection solely responsible for (with the Debt Financingassistance and cooperation of the Company in a manner consistent with Section 6.11(a)), the preparation of pro forma financial information, including pro forma costs savings, synergies, capitalization or other pro forma adjustments desired to be incorporated into any pro forma financing information, (iii) pay any commitment or other similar fee or enter into any binding agreement (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) or commitment or incur any other actual or potential liability or obligation in connection with the Debt Financing contemplated by the Debt Commitment Letter or be required to take any action for which it would not be indemnified hereunder, to bear any cost or expense or make any other payment or agree to provide any indemnity in connection with the Debt Financing or any of the foregoing prior to the Closing that is not advanced by BuyerClosing, (biv) no Group Company approve any document or other matter related to the financing or incur any liability of any kind (or cause their respective Representativesrepresentatives to incur any liability of any kind) prior to the Closing, managers, officers or employees shall be required to execute or (v) enter into, perform or authorize into any agreement or commitment in connection with respect to the Debt Financing (other than the execution or any Alternative Financing) or provide any certification or opinion of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) that is not contingent upon the Closing or that Company which would be effective prior to the Closing Date(other than the Company or its Subsidiaries as contemplated by Section 6.11(a), (cvi) no Representativeprovide any certifications, manageror any existing audited or unaudited financial statements for the Company and its Subsidiaries other than the Financial Statements, officer or employee of any Group Company shall be required to deliver any certificate or take any other action pursuant to this Section 8.11 the financial statements related solely to the extent any such action would reasonably be expected Company and its Subsidiaries and required by the Commitment Letter and, subject to result in personal liability to such RepresentativeSection 6.13, manager, officer or employeethe S-X Compliant Financial Statements and Most Recent Interim Financial Statements, (dvi) no Group Company or their respective Representatives shall be required to take any action that would reasonably (A) cause any representation, warranty, covenant or agreement in this Agreement or any other agreements, instruments and documents delivered at the Closing pursuant to this Agreement to be expected, in the reasonable judgment of the Company, to conflict with, or result in any violation or breach of, any applicable Laws, any organizational documents of any Group Company, any contract or obligations of confidentiality (not created in contemplation hereof) binding on any Group Companybreached, (eB) no Group Company cause Seller, its Affiliates or any of their respective Representatives shall be required directors, managers, officers or employees to take incur any personal liability, (C) conflict with the Organizational Documents of Seller or any of its Subsidiaries or any Law, (D) change any fiscal period, or (E) authorize any corporate action that would cause any condition effective prior to the Closing set forth herein to not be satisfied Closing.
(c) Buyer (i) shall promptly, upon request by Seller, reimburse Seller or otherwise cause its applicable Affiliate for all reasonable and documented out-of-pocket costs incurred by Seller, any breach of this Agreement, (f) no Group Company its Affiliates or any of their respective Representatives shall be required to make any representationdirectors, warranties or certifications as to whichmanagers, the Company hasofficers, in its good faithemployees, determined is not truerepresentatives, (g) no Group Companies or their respective Representatives shall be required to provideconsultants, and the Buyer will be solely responsible for the preparation of: (1) pro forma financial information; (2) any description of all or any component of the Debt Financing; or (3) projectionsadvisors, risk factors attorneys, accountants or other forward-looking statements relating to all or any component of the Debt Financing; and (h) no Group Company shall be required to provide access to or disclose information that the Company determines would jeopardize any attorney–client privilege or other similar privilege of the Company or any of its Subsidiaries. Promptly upon request by the Company, Xxxxx will reimburse the Company for any reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Company, the Company Subsidiaries or any of their Representatives agents in connection with the cooperation of the Company, the Company Subsidiaries and their Representatives any of them as contemplated by this Section 8.11. Except in the case of fraud or a breach of this Agreement, Buyer 6.11 and (ii) shall indemnify, defend, indemnify and hold harmless the Group Companies Seller, its Affiliates and their respective Representatives directors, managers, officers, employees, representatives, consultants, financial advisors, attorneys, accountants or other agents from and against any and all losses, damages, awards, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecution, investigation, defense or settlement of any of the foregoing) and other amounts actual losses suffered or incurred by them in connection with (i) any action taken by them at the request of Buyer pursuant to this Section 8.11 or in connection with the arrangement of the Debt Financing or (ii) any information utilized in connection therewith, and the foregoing obligations shall survive termination of this Agreement and the occurrence of the Closing. In addition, no action, liability or obligation of the Company, any of the Company Subsidiaries or any performance of their respective Representatives pursuant to obligations under this Section 6.11 (including any certificate, agreement, arrangement, document or instrument relating to action taken in accordance with this Section 6.11) and any Debt Financing information used in connection therewith (other than historical information related to Seller or the execution Company provided by or on behalf of Seller or the authorization letters referred to Company in clause (c)(ii) of Section 8.11.1) will be effective until the Closing Date. All material, non-public information regarding the Group Companies provided to Buyer or any of its Representatives pursuant to this Section 8.11 shall be kept confidential by them in accordance with the Confidentiality Agreement except writing specifically for disclosure to potential investors as required use in connection with the Debt Financing subject to customary confidentiality protections. Notwithstanding anything to offering documents), in each case, except for any losses (x) resulting from Actual Fraud, gross negligence, willful misconduct or intentional misrepresentation on the contrary, part of Seller or the Company shall be deemed to have complied with this Section 8.11 for all purposes or any of this Agreement their respective directors, managers, officers, employees, representatives, consultants, financial advisors, attorneys, accountants or other agents thereof or (including Article 6 and Article 7y) unless resulting from any material inaccuracy in the Debt Financing has not been obtained primarily as a result of the Company’s Willful Breach of its obligations under this Section 8.11. Notwithstanding anything herein to the contrary, Xxxxx acknowledges and agrees that obtaining any Debt Financing is not a condition to the ClosingFinancial Statements.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Infrastructure & Energy Alternatives, Inc.)
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (xa) provide Seller and the Company with written notice that such Debt Financing has been obtained and (y) deliver (or cause to be delivered) to Seller and the Company true, correct and complete copies of all arrangements pursuant to which any Financing Parties shall have committed to provide any portion of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further that, in no event shall the receipt of such Debt Financing be a condition to Closing and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. Prior to the Closing, subject to Section 8.11.2, the Company shall use commercially reasonable best efforts to, and shall use commercially reasonable best efforts to cause appropriate senior management of the Company Subsidiaries Acquired Companies to, provide Buyer such reasonable cooperation as is necessary, customary or advisable and its and their respective Representatives toreasonably requested by Buyer to assist Buyer, in each case at Buyer’s sole expense, provide in connection with the obtaining of and consummation of any Debt Financing, including using its commercially reasonable efforts to: (i) upon reasonable notice, participate in a reasonable number of lender meetings, due diligence presentations and sessions with rating agencies, in each case solely with respect to Buyer such cooperation information regarding the Acquired Companies, in each case as reasonably requested by Buyer and reasonably required in connection with the obtaining of Debt Financing at Closing and in each case on a telephonic or other remote basis, (ii) assist Buyer and the Debt Financing Sources in benefitting from the existing lending relationships of the Acquired Companies, (iii) furnish Buyer with (1) the Financial Statements and (2) such other pertinent and customary financial and other information and disclosures (including financial information and data derived from the historical books and records of the Acquired Companies) regarding the Acquired Companies that is reasonably (x) required to permit Buyer to prepare relevant pro forma financial statements or (y) customary and necessary in arranging, obtaining and syndicating to permit the consummation of debt financings similar to the Debt Financing, if any (provided that such requested cooperation is consistent including all information relating to the Acquired Companies customary for use in information documents with applicable Laws and does not unreasonably interfere with respect to the operations placement, arrangement and/or syndication of loans of the Group Companies), including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies as may be reasonably requested type contemplated by Buyer for the completion of the such Debt Financing, (b) participating in telephonic meetings and otherwise reasonably assisting with to the preparation of appropriate and customary materials customary presentationsextent applicable, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies in connection with the Debt Financing preparation by the Buyer of materials for rating agency presentations, marketing materials, bank information memoranda (including with respect to the extent reasonable presence of or absence of material non-public information relating to the Acquired Companies and customary for financings the accuracy of such typethe information relating to the Acquired Companies contained therein), (c) reasonably assisting in the preparation of (i) customary bank confidential information memorandamemorandum, lender and investor presentations, offering documents, offering or private placement memoranda and other similar marketing documents and due diligence efforts for the Debt Financing and (ii) customary authorization and representation letters, each as reasonably required in connection with the Debt Financing, authorizing in each case as reasonably requested by the distribution of information to prospective lenders and containing a representation that the public side of such documents, if any, do not include any information about any Group Company or any securities of any Group Company that would constitute material non-public information within the meaning of the United States federal and state securities laws if any Group Company were a public reporting companyBuyer, (div) using reasonable best efforts to cause the Company’s independent registered accounting firm to provide customary assistance, including (i) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) in connection with any capital markets transaction comprising a part of the Debt Financing, (ii) providing customary consents to the inclusion of their audit report in respect of any financial statements of the Company and the Company Subsidiaries in any offering documents relating to the Debt Financing and (iii) reasonable assistance and cooperation to Buyer with respect to any auditor due diligence, (e) subject to and conditioned on the occurrence of the Closing, the taking of customary corporate actions reasonably necessary to permit the consummation of and funding of the Debt Financing, (f) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth in any definitive document relating to the Debt Financing to the extent satisfaction of such condition requires the cooperation of, or is within the control of, the Group Companies, (g) delivering to Buyer at least three five (35) Business Days prior to the Closing Date, furnish Buyer and any prospective Debt Financing Sources with all such documentation and other information as is reasonably requested in writing by Buyer at least ten (10) Business Days prior to the Closing to the extent required by U.S. regulatory authorities any Governmental Entity with respect to such financing under applicable law (including “know your customer” and anti-money laundering rules and regulations), including to the PATRIOT Act and extent requested in writing at least ten (10) Business Days prior to the requirements of 31 C.F.R. §1010.230Closing Date, (hv) facilitating and assisting provide assistance in the preparation and delivery of any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents relating to the Debt Financing relating to the Group Companies, and their respective businesses to be included in the definitive documents relating to the Debt Financing, and assist connection with the execution and delivery of the samecustomary credit agreements (or amendments thereto), in each casepledge and security documents, solely guarantees, indentures, contribution agreements, management and services agreements, purchase agreements, solvency certificates, and other customary definitive documentation relating to the extent reasonable relevant Debt Financing provided that the foregoing documentation and customary for financings the pledge of such typeany collateral shall be subject to the occurrence of the Closing and become effective no earlier than the Closing, (ivi) cooperating request its independent accountants to provide necessary “comfort letters” on customary terms and consistent with internal and external counsel of Buyer customary practice in connection with providing customary back-up certificates and factual information regarding any legal opinion that such counsel may be required a Debt Financing, (vii) cooperate reasonably with the due diligence efforts of the Debt Financing Sources related to deliver the Acquired Companies in connection with the Debt Financing, in each case, solely and (viii) to the extent reasonable the same become reasonably necessary in connection with a Debt Financing, obtaining waivers, consents estoppels and customary for financings of such typeapprovals from other parties to material leases, encumbrances and (j) obtaining and providing documents contracts relating to Buyer each Acquired Company (including draft payoff lettersarranging discussions among each Acquired Company and the Debt Financing Sources with other parties to such material leases, encumbrances and contracts as of the Closing).
(b) relating Notwithstanding anything to the repayment of contrary contained herein, nothing in this Section 6.11 shall require any such cooperation or assistance to the Indebtedness and the release of related guarantees and Liens in accordance with the extent that it would: (i) require any Acquired Company to waive or amend any terms of this Agreement. The Company hereby consents, on behalf of itself and the Group Companies, to the use of the logos of the Group Companies in connection with the Debt Financing; provided that such logos are used solely in a manner that is not intended to, nor is reasonably likely to, harm Agreement or disparage the Company’s or any of its Affiliates’ reputation or goodwill.
8.11.2. Notwithstanding anything in this Agreement to the contrary, (a) no Group Company nor any of their respective Representatives shall be required, under the provisions of this Section 8.11 or otherwise in connection with the Debt Financing, agree to pay any commitment or other similar fee fees or enter into reimburse any binding agreement (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) or commitment or incur any other actual or potential liability or obligation in connection with the Debt Financing prior to the Closing that is not advanced by Buyer, (b) no Group Company or any of their respective Representatives, managers, officers or employees shall be required to execute or enter into, perform or authorize any agreement with respect to the Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) that is not contingent upon the Closing or that would be effective expenses prior to the Closing Date, or incur any liability or give any indemnities to any third party or otherwise commit to take any similar action, in each case, that is not contingent on the Closing, (cii) no Representativeunreasonably interfere with the ongoing business or operations of the Acquired Companies, (iii) require the Acquired Companies to commit to take any action that is not contingent on the Closing or to enter into any agreement or document unless the effectiveness thereof shall be conditioned upon, or become operative upon or after, the occurrence of the Closing, (iv) require the Acquired Companies to take any action that would (A) subject any director, member, manager, officer or employee of the Acquired Companies to any Group Company shall be required to deliver any certificate actual or take any other action pursuant to this Section 8.11 to the extent any such action would reasonably be expected to result in potential personal liability to such Representative, manager, officer or employeeliability, (dB) no Group Company or their respective Representatives shall be required to take any action that would reasonably be expected, in the reasonable judgment of the Company, to conflict with, violate or result in a breach of or default under any organizational documents of the Acquired Companies, any contract or any law or (C) require the Acquired Companies to change any fiscal period, (v) cause any representation and warranty in this Agreement to be inaccurate or breached, (vi) cause or result in any violation closing condition to fail to be satisfied, (vii) otherwise cause or result in the breach ofof this Agreement or any contract, (viii) require any applicable Laws, any organizational documents officer of any Group Companyof the Acquired Companies to pass resolutions or covenants to approve the Debt Financing or authorize the creation of any agreements, any contract documents or obligations actions in connection therewith, in each case which are not subject to the occurrence of confidentiality (not created in contemplation hereof) binding on any Group Company, (e) no Group Company the Closing or any of which by their respective Representatives shall be required to take any action that would cause any condition terms become effective prior to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement, (fix) no Group Company or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, the Company has, in its good faith, determined is not true, (g) no Group Companies or their respective Representatives shall be required to provide, and the Buyer will be solely responsible for the preparation of: prepare (1) any financial information concerning the Acquired Companies that the Acquired Companies do not maintain in the Ordinary Course and that is not otherwise required to be provided pursuant to this Agreement or (2) any other information that is not reasonably available to the Acquired Companies or (3) any pro forma financial information; .
(2c) any description of all or any component of the Debt Financing; or Buyer shall (3i) projections, risk factors or other forward-looking statements relating to all or any component of the Debt Financing; and (h) no Group Company shall be required to provide access to or disclose information that the Company determines would jeopardize any attorney–client privilege or other similar privilege of the Company or any of its Subsidiaries. Promptly upon promptly on request by the Company, Xxxxx will reimburse the Company for any all reasonable and documented outofpocket fees, costs and expenses (including including, to the extent incurred at the request or consent of Buyer, reasonable attorneys’ legal fees) incurred by the Company, the Company Subsidiaries or any of their Representatives Acquired Companies in connection with the cooperation of the Company, the Company Subsidiaries and their Representatives or assistance contemplated by this Section 8.11. Except in the case of fraud or a breach of this Agreement, Buyer shall 6.11 and (ii) indemnify, defend, defend and hold harmless the Group Acquired Companies and their respective Representatives from and against any and all losses, damages, awards, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecution, investigation, defense or settlement of any of the foregoing) and other amounts losses suffered or incurred by them in connection with (i) the arrangement of any financing, any action taken by them at the request of Buyer pursuant to this Section 8.11 or in connection with the arrangement of the Debt Financing or (ii) 6.11 and any information utilized used in connection therewith, and other than to the foregoing obligations shall survive termination of this Agreement and the occurrence of the Closing. In addition, no action, liability or obligation extent such losses are a direct result of the Company’s gross negligence or acting in bad faith through the knowing, any intentional and material breach of the Company Subsidiaries or any of their respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to any Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) will be effective until the Closing Date. All material, non-public information regarding the Group Companies provided to Buyer or any of its Representatives pursuant to Company’s obligations under this Section 8.11 6.11. Without limiting the foregoing, the Companies shall not be kept confidential by them in accordance with required, under the Confidentiality Agreement except for disclosure to potential investors as required provisions of this Section 6.11 or otherwise in connection with the Debt Financing subject (A) to customary confidentiality protections. Notwithstanding anything pay any commitment or other fee prior to the contraryClosing or (B) to incur any fees, costs or expenses, unless such fees, costs or expenses are reimbursed by Buyer on the Company shall be deemed to have complied with this Section 8.11 for all purposes earlier of the Closing and the termination of this Agreement (including Article 6 and Article 7) unless the Debt Financing has not been obtained primarily as a result of the Company’s Willful Breach of its obligations under this Section 8.11. Notwithstanding anything herein to the contrary, Xxxxx acknowledges and agrees that obtaining any Debt Financing is not a condition to the Closing.in accordance with ARTICLE X.
Appears in 1 contract
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion (a) From the date of this Agreement through the earlier of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (x) provide Seller Closing and the Company with written notice that such Debt Financing has been obtained and (y) deliver (or cause to be delivered) to Seller and the Company true, correct and complete copies termination of all arrangements pursuant to which any Financing Parties shall have committed to provide any portion of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further that, in no event shall the receipt of such Debt Financing be a condition to Closing and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. Prior to the Closing, subject to Section 8.11.2Agreement, the Company shall use reasonable best efforts to, and shall cause its Subsidiaries to use their reasonable best efforts to cause the Company Subsidiaries and its and their respective Representatives to, subject to Parent’s reimbursement obligations set forth in each case at Buyer’s sole expenseSection 6.12(d), provide to Buyer such customary cooperation as reasonably requested by Buyer Parent or Acquisition Sub to assist Parent and Acquisition Sub in connection with the arrangement of any Debt Financing for purposes of consummating the Merger or as is otherwise reasonably requested by Parent or Acquisition Sub in connection to Parent’s efforts to obtain the Debt Financing. Such cooperation shall include using reasonable best efforts to:
(i) furnish, or cause to be furnished to, Parent, Acquisition Sub and its Debt Financing Sources (x) the Required Information that is Compliant, (y) within (18) Business Days after the relevant quarter, customary “flash” or “recent development” financial information (which may be provided in a reasonable range or estimate and may be provided on a non-GAAP basis) for any fiscal quarter ending after the date hereof and prior to the Closing and (z) such other financial and other pertinent historical information pertaining to the Company and its Subsidiaries reasonably necessary for inclusion in arranging, obtaining and syndicating confidential information memoranda and/or an offering memorandum for private placements of non-convertible high-yield debt securities in a Rule 144A-for-life offering customarily included in marketing materials for financings similar to the Debt Financing, if any (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the operations of the Group Companies), including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies as may be reasonably requested by Buyer Parent; provided, that neither the Company nor any of its Subsidiaries shall be required to provide any such information pursuant to this subclause (z) that is not reasonably available to the Company under its current reporting systems, that the Company is not reasonably able to produce without undue burden or expense at such time or to the extent that the provision thereof would violate any Law, or any obligation of confidentiality binding upon, or waive any privilege that may be asserted by the Company or its Subsidiaries of any of the foregoing unless any such information would be required to ensure that the information provided pursuant to this subclause (z) would not contain any untrue statement of a material fact or omit a material fact required to be stated therein or necessary to make the statements therein, in light of circumstances under which they were made, not misleading;
(ii) provide Parent with all historical financial information as it pertains to the Company and its Subsidiaries necessary for Parent to prepare the completion pro forma financial statements required by paragraph 5 of Exhibit D of the Debt FinancingCommitment Letter; provided, that neither the Company nor any of its Subsidiaries or representatives shall be required to provide any information or assistance relating to (A) the proposed debt and equity capitalization that is required for such pro forma financial information or assumed interest rates and fees and expenses relating to such debt and equity capitalization, (bB) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentationsany post-Closing or pro forma cost savings, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies in connection with the Debt Financing synergies, capitalization, ownership or other pro forma adjustments desired to the extent reasonable and customary for financings of such type, (c) reasonably assisting in the preparation of (i) customary bank be incorporated into any information memoranda, lender and investor presentations, offering documents, offering or private placement memoranda and other similar marketing documents and due diligence efforts for the Debt Financing and (ii) customary authorization and representation letters, each as required used in connection with the Debt Financing, or (C) any adjustments that are not related to the acquisition of the Company and its Subsidiaries;
(iii) prepare for and participate in (through management with appropriate seniority and expertise) a reasonable number of lender meetings, presentations, road shows, lender presentations, customary marketing and due diligence sessions related thereto, rating agency meetings and other customary syndication activities in connection with the Debt Financing, in each case, (x) upon reasonable advance notice, during normal business hours and at mutually agreed times and (y) solely with respect to information relating to the Company (to the extent related to its business) and its Subsidiaries.
(iv) assist Parent and the Debt Financing Sources (and, in the case of clause (y) below, notwithstanding if such information otherwise constitutes Excluded Information) in Parent’s preparation of (x) any materials for rating agency presentations and the preparation of any offering documents, private placement memoranda, bank information memoranda and similar documents customarily required in connection with the Debt Financing and providing reasonable cooperation with the due diligence efforts of the Debt Financing Sources, in each case, to the extent reasonable and customary and (y) customary reconciliations of any non-GAAP metrics to the nearest GAAP metrics and customary high-level guarantor/non-guarantor financial metrics, in each case of the type customarily included in an offering memorandum for private placements of non-convertible high-yield debt securities in a Rule 144A-for-life offering;
(v) direct the independent auditors of the Company to assist and cooperate with Parent in connection with the Debt Financing, including by (A) providing consent to offering memoranda that include or incorporate the Company’s consolidated financial information and their reports thereon and letters to provide “comfort” customary for senior high-yield debt securities (including customary “negative assurance” comfort) with respect to financial information relating to the Company and its Subsidiaries and (B) attending a reasonable number of accounting due diligence sessions in connection with the Debt Financing;
(vi) ensure (x) that an officer of the Company executes prior to the Closing customary “authorization” letters (including customary representations with respect to the absence of material non-public information in the public-side versions of documents and the absence of material misstatements or omissions, so long as the Company has been provided with drafts of such documents within a reasonable period of time prior to the requested execution of the letter to which such representations relate) in connection with bank information memoranda authorizing the distribution of information to prospective lenders and containing a representation that (y) the public side delivery of such documents, if any, do not include any information about any Group Company or any securities of any Group Company that would constitute material non-public information within the meaning of the United States federal customary CFO and state securities laws if any Group Company were a public reporting company, (d) using reasonable best efforts to cause the Company’s independent registered accounting firm to provide customary assistance, including (i) providing customary comfort letters (including “negative assurance comfort” similar certificates and “change period comfort”) in connection with any capital markets transaction comprising a part of the Debt Financing, (ii) providing customary consents to the inclusion of their audit report in respect of any financial statements of the Company and the Company Subsidiaries in any offering documents relating to the Debt Financing and (iii) reasonable assistance and cooperation to Buyer certificates with respect to any auditor due diligence, (e) subject to and conditioned on certain financial information in the occurrence of the Closing, the taking of customary corporate actions reasonably necessary to permit the consummation of and funding of the Debt Financing, (f) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth in any definitive document relating to the Debt Financing offering documents to the extent satisfaction of not otherwise covered by letters to provide “comfort” described above, in each case, with respect to financial information customarily covered in such condition requires the cooperation of, or is within the control of, the Group Companies, certificates;
(gvii) delivering to Buyer deliver at least three four (34) Business Days prior to the Closing all such Date information and documentation related to the Company and information as is its Subsidiaries required and reasonably requested in writing by Buyer Parent or Acquisition Sub at least ten eight (10) 8) Business Days prior to the Closing Date with respect to the extent required by U.S. regulatory authorities compliance under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and the requirements of 31 C.F.R. §1010.230Act, (h) facilitating and assisting in the preparation and delivery of any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents relating to the Debt Financing relating to the Group Companies, and their respective businesses to be included in the definitive documents relating to the Debt Financing, and assist with the execution and delivery of the same, in each case, solely to the extent reasonable required by the Debt Commitment Letter;
(viii) solely with respect to the Company and customary for financings its Subsidiaries, facilitate the pledging of, granting a security interest in and obtaining, perfection of such typeany Liens on, (i) cooperating with internal and external counsel of Buyer in connection with providing customary back-up certificates and factual information regarding any legal opinion that such counsel may be collateral required to deliver in connection with the Debt Financing, in each case, solely case to the extent reasonably requested by Parent; and
(ix) provide other customary cooperation with respect to any portion of the Debt Financing, in each case as may be reasonably requested by Pxxxxx.
(b) The cooperation and other obligations contemplated by Section 6.12(a) shall not (A) require any action that would (or would reasonably be expected to) (i) cause any representation or warranty in this Agreement to be breached or (ii) cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement, (B) require the Company or any of its Subsidiaries or their respective Representatives to (i) other than with respect to the authorization letter and CFO and similar certificates contemplated by Section 6.12(a)(vi) and the “know-your-customer” information referred to in Section 6.12(a)(vii) (provided that such customary authorization letters (or the bank information memoranda in which such letters are included) shall include customary language that exculpates the Company, each of its Subsidiaries and their respective Representatives and Affiliates from any liability in connection with the unauthorized use by the recipients thereof of the information set forth in any such bank confidential information memoranda or similar memoranda or report distributed in connection therewith) (such documents, the “Applicable Documents”), execute, deliver, enter into, approve or perform any agreement, commitment, document or instrument, or modification of any agreement, commitment, document or instrument, (ii) deliver or cause the delivery of any legal opinions or reliance letters or any certificate as to solvency or any other certificate in connection with the Debt Financing (excluding the Applicable Documents), (iii) adopt any resolutions, execute any consents or otherwise take any corporate or similar action or deliver any certificate (other than the Applicable Documents), in connection to the Debt Financing or the incurrence of indebtedness thereby or (iv) pay any commitment or other similar fee, incur or reimburse any costs or expenses or incur any liability or obligation of any kind or give any indemnities prior to the Closing in connection with the Debt Financing that is not subject to Parent’s reimbursement obligation set forth in Section 6.12(d), (C) require the Company or any of its Subsidiaries or their respective Affiliates and Representatives to deliver any certificate or take any action pursuant to Section 6.12(a) if doing so would reasonably be expected to cause any director, officer or employee or stockholder of the Company or such Subsidiary, Affiliate or Representative to incur personal liability, (D) require the Company or any of its Subsidiaries to provide, or cause to be provided, any information the disclosure of which is prohibited or restricted under a Company Material Contract, (E) require the Company or any of its Subsidiaries to take any action that will conflict with or violate its organizational documents or any Laws (in any material respects) or result in a violation or breach of, or default under, any Company Material Contract (in any material respects), (F) unreasonably interfere with the ongoing operations of the Company and its Subsidiaries or (G) prepare or deliver any Excluded Information or any financial statements other than the Required Information; it being understood that under no circumstances shall the Company and its Subsidiaries be required to provide pro forma financial information, projections or other pro forma adjustments, all of which shall be the responsibility of Parent and Acquisition Sub; provided that, with respect to (D) and (E), the Company will inform Parent of the general nature of the document or information being withheld and use its reasonable and customary best efforts to allow for financings such access or disclosure in a manner that does not result in a loss of such type, and Company Material Contract.
(jc) obtaining and providing documents All non-public or other confidential information provided by the Company to Buyer Parent or its Affiliates pursuant to this Section 6.12 shall be (including draft payoff lettersi) relating to the repayment of the Indebtedness and the release of related guarantees and Liens kept confidential in accordance with the terms Company Confidentiality Agreement or (ii) subject to the other customary confidentiality undertakings for transactions of the type of the Debt Financing.
(d) On the Closing Date or promptly following the termination of this Agreement, Parent shall reimburse the Company for any reasonable and documented out-of-pocket expenses and costs (including reasonable and documented outside attorneys’ fees and disbursements) incurred in connection with the Company’s or its Affiliates’ or Representatives’ obligations under this Section 6.12; provided, that Parent shall not be required to reimburse the Company for costs and expenses with respect to financial statements, financial information or other materials prepared prior to the date hereof or, after the date hereof, that the Company already prepared or was being prepared by the Company in the ordinary course of business notwithstanding this Section 6.12. Parent shall indemnify and hold harmless the Company, its Affiliates and their respective Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses (including reasonable and documented outside attorneys’ fees and disbursements), interest, awards, judgments and penalties suffered or incurred by any of them as a result of, or in connection with, (i) such cooperation, (ii) the Debt Financing, (iii) any information used in connection with the Debt Financing (other than information included in filings made by the Company with the SEC under Form 10-K, Form 10-Q or Form 8-K) and (iv) any action taken by any of them at the request of Parent or Acquisition Sub pursuant to this Section 6.12 or otherwise in accordance with this Section 6.12, except, in each case, to the extent such liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments, and penalties arose from the fraud, gross negligence or willful misconduct by of the Company, its Affiliates or any of their respective Representatives, as determined in a final, non-appealable judgment of a court of competent jurisdiction. The Company hereby consents, on behalf of itself and the Group Companies, consents to the customary use of the Company’s and its Subsidiaries’ logos of the Group Companies in connection with the Debt Financing; provided that such logos are used solely in a manner that is not intended to, nor is to or reasonably likely to, to harm or disparage the Company’s Company or any of its Affiliates’ Subsidiaries or the reputation or goodwill.
8.11.2. Notwithstanding anything in this Agreement to the contrary, (a) no Group Company nor any of their respective Representatives shall be required, under the provisions of this Section 8.11 or otherwise in connection with the Debt Financing, to pay any commitment or other similar fee or enter into any binding agreement (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) or commitment or incur any other actual or potential liability or obligation in connection with the Debt Financing prior to the Closing that is not advanced by Buyer, (b) no Group Company or any of their respective Representatives, managers, officers or employees shall be required to execute or enter into, perform or authorize any agreement with respect to the Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) that is not contingent upon the Closing or that would be effective prior to the Closing Date, (c) no Representative, manager, officer or employee of any Group Company shall be required to deliver any certificate or take any other action pursuant to this Section 8.11 to the extent any such action would reasonably be expected to result in personal liability to such Representative, manager, officer or employee, (d) no Group Company or their respective Representatives shall be required to take any action that would reasonably be expected, in the reasonable judgment of the Company, to conflict with, or result in any violation or breach of, any applicable Laws, any organizational documents of any Group Company, any contract or obligations of confidentiality (not created in contemplation hereof) binding on any Group Company, (e) no Group Company or any of their respective Representatives shall be required to take any action that would cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement, (f) no Group Company or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, the Company has, in its good faith, determined is not true, (g) no Group Companies or their respective Representatives shall be required to provide, and the Buyer will be solely responsible for the preparation of: (1) pro forma financial information; (2) any description of all or any component of the Debt Financing; or (3) projections, risk factors or other forward-looking statements relating to all or any component of the Debt Financing; and (h) no Group Company shall be required to provide access to or disclose information that the Company determines would jeopardize any attorney–client privilege or other similar privilege goodwill of the Company or any of its Subsidiaries. Promptly upon request by the Company, Xxxxx will reimburse the Company for any reasonable costs and expenses .
(including reasonable attorneys’ feese) incurred by the Company, the Company Subsidiaries or any of their Representatives in connection with the cooperation of the Company, the Company Subsidiaries and their Representatives contemplated by this Section 8.11. Except in the case of fraud or a breach of this Agreement, Buyer shall indemnify, defend, and hold harmless the Group Companies and their respective Representatives from and against any and all losses, damages, awards, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecution, investigation, defense or settlement of any of the foregoing) and other amounts suffered or incurred by them in connection with (i) any action taken by them at the request of Buyer pursuant to this Section 8.11 or in connection with the arrangement of the Debt Financing or (ii) any information utilized in connection therewith, and the foregoing obligations shall survive termination of this Agreement and the occurrence of the Closing. In addition, no action, liability or obligation of the Company, any of the Company Subsidiaries or any of their respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to any Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) will be effective until the Closing Date. All material, non-public information regarding the Group Companies provided to Buyer or any of its Representatives pursuant to this Section 8.11 shall be kept confidential by them in accordance with the Confidentiality Agreement except for disclosure to potential investors as required in connection with the Debt Financing subject to customary confidentiality protections. Notwithstanding anything herein to the contrary, the Company condition set forth in Section 7.2(b), as it applies in respect of the Company’s obligations under this Section 6.12, shall be deemed satisfied unless Parent and Acquisition Sub fail to have complied with this Section 8.11 for all purposes of this Agreement (including Article 6 and Article 7) unless obtain the Debt Financing has not been obtained primarily as a Financing, and such failure was the direct result of the Company’s Willful Intentional Breach of its obligations under this Section 8.11. Notwithstanding anything herein to the contrary, Xxxxx acknowledges and agrees that obtaining any Debt Financing is not a condition to the Closing6.12.
Appears in 1 contract
Samples: Merger Agreement (Avantax, Inc.)
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (xa) provide Seller and the Company with written notice that such Debt Financing has been obtained and (y) deliver (or cause to be delivered) to Seller and the Company true, correct and complete copies of all arrangements pursuant to which any Financing Parties shall have committed to provide any portion of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further that, in no event shall the receipt of such Debt Financing be a condition to Closing and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. Prior to the Closing, subject at Buyer’s cost and expense (which obligation to pay shall be guaranteed pursuant to the Limited Guarantee if the Agreement is terminated in a manner described under Section 8.11.22.6(a)), the Company shall use reasonable best efforts toSeller shall, and shall cause the Business Group and use commercially reasonable best efforts to cause the Company Subsidiaries and its and their respective Representatives to, in each case at Buyer’s sole expense, use commercially reasonable efforts to provide to Buyer such with the cooperation reasonably requested by Buyer that to assist it in causing the conditions in the Debt Commitment Letters to be satisfied or as is otherwise necessary or reasonably necessary requested by Buyer in arranging, obtaining and syndicating connection with the Debt Financing, if any including:
(provided that such i) participation by appropriate management of the Business Group 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 and their representatives or investors, including participating in a reasonable number of accounting due diligence sessions;
(ii) assisting Buyer and the Debt Financing Sources, as reasonably requested cooperation is consistent by Buyer, with applicable Laws respect to Buyer’s preparation of customary rating agency presentations, marketing materials, offering memoranda, lender and does not unreasonably interfere investor presentations (including road shows) and bank information memoranda required in connection with the operations of the Group Companies), including Debt Financing;
(iii) as promptly as reasonably practicalpracticable, (a) furnishing Buyer and its Debt Financing Sources with the Required Financial Information that is and other pertinent information regarding the Group Companies remains Compliant and, as may be reasonably requested by Buyer for the completion of the Debt Financing, (b) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies in connection with the Debt Financing to the extent reasonable and customary for financings of such type, (c) reasonably assisting in the preparation of (i) customary bank information memoranda, lender and investor presentations, offering documents, offering or private placement memoranda and other similar marketing documents and due diligence efforts for the Debt Financing and (ii) customary authorization and representation letters, each as required in connection with the Debt Financing, authorizing other customary financial and other information regarding the distribution Business Group;
(iv) responding to inquiries from Buyer with respect to Buyer’s preparation of pro forma financial statements and other financial information necessary to prospective lenders and containing a representation that satisfy the public side of such documents, if any, do not include any information about any Group Company or any securities of any Group Company that would constitute material non-public information within the meaning conditions set forth in Annex III of the United States federal Debt Commitment Letter;
(v) instructing the independent accountants of Seller and state securities laws if any the Business Group Company were a public reporting companyto provide, (d) using and taking commercially reasonable best efforts to cause facilitate such provision of, reasonable and customary assistance and cooperation in connection with the Company’s independent registered accounting firm to provide customary assistanceDebt Financing, including (iA) providing participating in a reasonable number of accounting due diligence sessions, (B) rendering customary "comfort letters letters" under AU Section 634 for a Rule 144A placement of securities (including “stating that such accountants have performed a customary AS 4105 (formerly SAS 100) review on the Additional Unaudited Financial Statements and including customary negative assurance comfort” and “change period comfort”) with respect to financial information regarding Seller and/or the Business contained in connection with any capital markets transaction comprising a part materials relating to the Debt Financing, including for the Required Financial Information to be Compliant and including providing customary representations to such accountants, and (C) providing consents for use of their reports in any materials or disclosures relating to the Debt Financing where financial information of Seller and/or the Business is included;
(vi) causing officers of the Companies who will be officers of the Companies after the Closing to execute and deliver in escrow pledge, mortgage and security documents, supplemental indentures, currency or interest hedging arrangements, other definitive financing documents, customary solvency certificates executed by appropriate financial executive officers of one or both of the Companies (including relating to solvency matters of the Companies before giving effect to the incurrence of the Debt Financing and the consummation of the Acquisition and the other Contemplated Transactions and such Debt Financing), and other certificates or documents and back-up therefor as may be reasonably requested by Buyer or the Debt Financing Sources, and otherwise reasonably facilitate the pledging of collateral and the granting of security interests in respect of the Debt Financing, (ii) providing customary consents to the inclusion provided, that such pledge of their audit report in respect collateral, granting of security interests and any financial statements such obligations of the Company and the Company Subsidiaries in Companies under any offering documents relating other agreement or document related to the Debt Financing shall not become effective until the Closing;
(vii) cooperating with Buyer to obtain customary and reasonable corporate and facilities ratings, consents, approvals, authorizations, landlord waivers and estoppels, non-disturbance agreements, non-invasive environmental assessments, certificates, legal opinions, surveys and title insurance (iiiincluding such affidavits and non-imputation endorsements in connection therewith) reasonable assistance or other documents and cooperation instruments as may be necessary and customary for the Debt Financing or otherwise reasonably requested by Buyer;
(viii) providing access to Buyer with respect and the Debt Financing Sources as necessary for completion of initial field examinations, collateral audits and appraisals to any auditor due diligenceevaluate the assets of the Business Group for purposes of establishing a borrowing base;
(ix) causing the Companies and the Subsidiaries to take all corporate action, (e) subject to and conditioned on the occurrence of the Closing, the taking of customary corporate actions reasonably necessary to permit the consummation of and funding of the Debt Financing, ; and
(fx) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth promptly and in any definitive document relating to the Debt Financing to the extent satisfaction of such condition requires the cooperation of, or is within the control of, the Group Companies, (g) delivering to Buyer event at least three (3) Business Days days prior to the Closing Date, furnishing Buyer and the Debt Financing Sources with all such documentation and other information as is reasonably requested in writing by Buyer at least ten (10) Business Days prior to the Closing to the extent required by U.S. regulatory authorities under in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act and Patriot Act.
(b) Nothing in this Section shall require any of the requirements Companies or the Subsidiaries to (i) waive or amend any terms of 31 C.F.R. §1010.230, (h) facilitating and assisting in the preparation and delivery of this Agreement or agree to pay any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates fees or other definitive documents relating reimburse any expenses prior to the Debt Financing relating Closing Date for which it has not received prior reimbursement or is not otherwise indemnified by or on behalf of Buyer, or to give any indemnities that are effective prior to the Group CompaniesClosing Date or (ii) take any action that would unreasonably interfere with the ongoing operations of Seller, the Companies or the Subsidiaries. Buyer shall, promptly upon request by Seller, reimburse Seller for all out-of-pocket costs and expenses incurred by Seller and its Affiliates and its and their respective businesses officers, directors, managers, employees, consultants, counsel, accountants, agents, advisors and other representatives (collectively, the “Seller Related Parties”) in connection with their respective obligations pursuant to be included this Section 3.23. Buyer shall indemnify and hold the Seller Related Parties harmless from and against any and all losses suffered or incurred by any of them in the definitive documents relating to the connection with arrangement of any Debt Financing, and assist with the execution and delivery Financing or as a result of the samecooperation provided under this Section 3.23, in each case, solely except to the extent reasonable and customary for financings resulting from, or by reason of, information provided in writing by or at the direction of such type, (i) cooperating with internal and external counsel of Buyer 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 Debt Financing, in each case, solely Seller Related Parties or to the extent reasonable and customary for financings that such losses, directly or indirectly, resulted from or arose out of such typethe willful misconduct, and (j) obtaining and providing documents to Buyer (including draft payoff letters) relating bad faith, fraud or gross negligence of Seller or its representatives. Such indemnification shall be subject to the repayment of the Indebtedness and the release of related guarantees and Liens procedures set forth in accordance with the terms of this Agreement. The Company Article 6.
(c) Seller hereby consents, on behalf of itself and the Group Companies, consents to the use of the Specified Names and related logos of the Group Companies in any offering documents, information memoranda, investor or lender presentations or other marketing materials used in connection with the Debt Financing; provided provided, however, that such Specified Names and related logos are used solely in a manner that is not intended to, nor is reasonably likely to, to harm or disparage the Company’s or any of its Affiliates’ reputation or goodwill.
8.11.2. Notwithstanding anything in this Agreement to the contrary, (a) no Group Company nor any of their respective Representatives shall be required, under the provisions of this Section 8.11 or otherwise in connection with the Debt Financing, to pay any commitment or other similar fee or enter into any binding agreement (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) or commitment or incur any other actual or potential liability or obligation in connection with the Debt Financing prior to the Closing that is not advanced by Buyer, (b) no Group Company or any of their respective Representatives, managers, officers or employees shall be required to execute or enter into, perform or authorize any agreement with respect to the Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) that is not contingent upon the Closing or that would be effective prior to the Closing Date, (c) no Representative, manager, officer or employee of any Group Company shall be required to deliver any certificate or take any other action pursuant to this Section 8.11 to the extent any such action would reasonably be expected to result in personal liability to such Representative, manager, officer or employee, (d) no Group Company or their respective Representatives shall be required to take any action that would reasonably be expected, in the reasonable judgment of the Company, to conflict with, or result in any violation or breach of, any applicable Laws, any organizational documents of any Group Company, any contract or obligations of confidentiality (not created in contemplation hereof) binding on any Group Company, (e) no Group Company or any of their respective Representatives shall be required to take any action that would cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement, (f) no Group Company or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, the Company has, in its good faith, determined is not true, (g) no Group Companies or their respective Representatives shall be required to provide, and the Buyer will be solely responsible for the preparation of: (1) pro forma financial information; (2) any description of all or any component of the Debt Financing; or (3) projections, risk factors or other forward-looking statements relating to all or any component of the Debt Financing; and (h) no Group Company shall be required to provide access to or disclose information that the Company determines would jeopardize any attorney–client privilege or other similar privilege of the Company Seller or any of its Subsidiaries. Promptly upon request by the Company, Xxxxx will reimburse the Company for any reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Company, the Company Subsidiaries or any of their Representatives in connection with the cooperation of the Company, the Company Subsidiaries and their Representatives contemplated by this Section 8.11. Except in the case of fraud or a breach of this Agreement, Buyer shall indemnify, defend, and hold harmless the Group Companies and their respective Representatives from and against any and all losses, damages, awards, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecution, investigation, defense or settlement of any of the foregoing) and other amounts suffered or incurred by them in connection with (i) any action taken by them at the request of Buyer pursuant to this Section 8.11 or in connection with the arrangement of the Debt Financing or (ii) any information utilized in connection therewith, and the foregoing obligations shall survive termination of this Agreement and the occurrence of the Closing. In addition, no action, liability or obligation of the Company, any of the Company Subsidiaries or any of their respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to any Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) will be effective until the Closing Date. All material, non-public information regarding the Group Companies provided to Buyer or any of its Representatives pursuant to this Section 8.11 shall be kept confidential by them in accordance with the Confidentiality Agreement except for disclosure to potential investors as required in connection with the Debt Financing subject to customary confidentiality protections. Notwithstanding anything to the contrary, the Company shall be deemed to have complied with this Section 8.11 for all purposes of this Agreement (including Article 6 and Article 7) unless the Debt Financing has not been obtained primarily as a result of the Company’s Willful Breach of its obligations under this Section 8.11. Notwithstanding anything herein to the contrary, Xxxxx acknowledges and agrees that obtaining any Debt Financing is not a condition to the Closing.
Appears in 1 contract
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (x) provide Seller and the Company with written notice that such Debt Financing has been obtained and (y) deliver (or cause to be delivered) to Seller and the Company true, correct and complete copies of all arrangements pursuant to which any Financing Parties shall have committed to provide any portion of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further that, in no event shall the receipt of such Debt Financing be a condition to Closing and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder5.17.1. Prior to the Closing, subject to Section 8.11.2upon the request of Buyers, Sellers and the Company shall use reasonable best efforts toCompanies shall, and shall use reasonable best efforts to cause the Company Subsidiaries and its and their respective subsidiaries and Representatives to, use commercially reasonable efforts to cooperate in each case at Buyer’s sole expense, provide to Buyer such cooperation reasonably requested by Buyer that is reasonably necessary in arranging, obtaining and syndicating connection with the Debt Financing, if any including using commercially reasonable efforts to: (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the operations i) cause management teams of the Group Companies), including with appropriate seniority and expertise, to participate in meetings, due diligence sessions and rating agency presentations and road shows, if any, (ii) prepare and furnish to Buyers as promptly as reasonably practical, (a) furnishing Buyer with practicable the Required Financial Information and any other financial or other pertinent information regarding the Group Companies as may be reasonably requested by Buyer for Buyers to consummate the completion Financing; (iii) cause the independent accountants of the Debt FinancingCompanies to provide reasonable assistance to Buyers, (b) consistent with their professional practice, including by participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies in connection with the Debt Financing , to provide their consent to use of their audit reports relating to the extent reasonable Companies on customary terms and customary for financings of such type, (c) reasonably assisting in the preparation of (i) customary bank information memoranda, lender and investor presentations, offering documents, offering or private placement memoranda and other similar marketing documents and due diligence efforts for the Debt Financing and (ii) customary authorization and representation letters, each as required in connection with the Debt Financing, authorizing the distribution of information to prospective lenders and containing a representation that the public side of such documents, if any, do not include any information about any Group Company or any securities of any Group Company that would constitute material non-public information within the meaning of the United States federal and state securities laws if any Group Company were a public reporting company, (d) using reasonable best efforts to cause the Company’s independent registered accounting firm to provide customary assistance, including (i) providing deliver customary comfort letters (including “as to negative assurance comfort” and “change period comfort”); (iv) assist in connection with any capital markets transaction comprising a part the preparation of the Debt Financingpro forma financial information, (iiv) providing customary consents to the inclusion of their audit report in respect of any financial statements of the Company and the Company Subsidiaries in any offering documents relating to the Debt Financing and (iii) reasonable assistance and cooperation to Buyer with respect to any auditor due diligence, (e) subject to and conditioned on the occurrence of the Closing, the taking of customary corporate actions reasonably necessary to permit the consummation of Financing Sources to conduct reasonable due diligence (including conducting customary field exams and funding of the Debt Financing, (f) reasonably assisting in Buyer’s appraisals and using commercially reasonable efforts to satisfy the conditions precedent set forth in any definitive document relating to the Debt Financing to the extent satisfaction of such condition requires the cooperation of, provide relevant information or is within the control of, the Group Companies, (g) delivering to Buyer at least three (3) Business Days prior to the Closing all such documentation and information as is reasonably requested in writing by Buyer at least ten connection therewith); (10vi) Business Days prior to the Closing to the extent furnish promptly all documentation and other information required by U.S. regulatory authorities any Governmental Authority or as reasonably requested by any Financing Source under applicable “know your customer” and or anti-money laundering rules and regulations, including the PATRIOT Act and the requirements of 31 C.F.R. §1010.230Act, (hvii) facilitating execute and assisting in the preparation deliver any definitive financing documents, including any necessary pledge and delivery of any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentationdocuments, guarantees, schedulesdeposit account control agreements, perfection certificates or other definitive documents relating blocked account control agreements, subordination agreements with respect to the Debt Financing relating to the Group Companiesintercompany indebtedness, and their respective businesses other collateral documents covering the Assets and the Interests as reasonably requested by Buyers, furnishing exhibits to be included in the definitive documents relating such instruments (and using commercially reasonable efforts to the Debt Financing, and assist with the execution and delivery of the same, in each case, solely to the extent reasonable and customary for financings of such type, (i) cooperating with internal and external counsel of Buyer provide relevant information or documentation reasonably requested in connection with providing customary back-up certificates therewith) and factual information regarding any legal opinion that such counsel may be required to deliver otherwise facilitating the pledging of collateral in connection with the Debt Financing, including taking reasonable actions necessary to permit the Financing Sources to evaluate the Assets and the Interests for the purpose of establishing collateral arrangements, and providing customary title information; provided that no obligation of the Companies under any such definitive financing documents, including any pledge and security documents, guarantees, deposit account control agreements, blocked account control agreements, subordination agreements regarding intercompany indebtedness or other collateral documents shall be effective until the Closing Date; (viii) 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 any repayment or refinancing of such Indebtedness to be paid off, discharged and terminated on the Closing Date; provided that the documents in each caserespect of such arrangements contemplated by this clause (viii) shall not need to be effective until the Closing Date; and (ix) obtaining customary evidence of authority, solely customary officer’s certificates and using commercially reasonable efforts to obtain customary insurance certificates and insurance endorsements to the extent reasonably requested by the Financing Sources.
5.17.2. Buyers and Buyer Parent shall promptly upon written request by Sellers, reimburse Sellers for any and all reasonable and customary for financings customarily documented out-of-pocket costs and expenses incurred, paid or payable by Sellers or their Affiliates and Representatives of Sellers and such typeAffiliates (collectively, and (jthe “Seller Related Parties”) obtaining and providing documents to Buyer (including draft payoff letters) relating to the repayment of the Indebtedness and the release of related guarantees and Liens in accordance with the terms of this Agreement. The Company hereby consents, on behalf of itself and the Group Companies, to the use of the logos of the Group Companies in connection with their respective obligations regarding the Debt Financing; provided that such logos are used solely , including those set forth in a manner that is not intended to, nor is reasonably likely to, harm or disparage the Company’s or any of its Affiliates’ reputation or goodwillthis Section 5.17.
8.11.25.17.3. Notwithstanding anything in this Agreement to the contraryBuyers and Buyer Parent, (a) no Group Company nor any of their respective Representatives jointly and severally, shall be required, under the provisions of this Section 8.11 or otherwise in connection with the Debt Financing, to pay any commitment or other similar fee or enter into any binding agreement (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) or commitment or incur any other actual or potential liability or obligation in connection with the Debt Financing prior to the Closing that is not advanced by Buyer, (b) no Group Company or any of their respective Representatives, managers, officers or employees shall be required to execute or enter into, perform or authorize any agreement with respect to the Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) that is not contingent upon the Closing or that would be effective prior to the Closing Date, (c) no Representative, manager, officer or employee of any Group Company shall be required to deliver any certificate or take any other action pursuant to this Section 8.11 to the extent any such action would reasonably be expected to result in personal liability to such Representative, manager, officer or employee, (d) no Group Company or their respective Representatives shall be required to take any action that would reasonably be expected, in the reasonable judgment of the Company, to conflict with, or result in any violation or breach of, any applicable Laws, any organizational documents of any Group Company, any contract or obligations of confidentiality (not created in contemplation hereof) binding on any Group Company, (e) no Group Company or any of their respective Representatives shall be required to take any action that would cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement, (f) no Group Company or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, the Company has, in its good faith, determined is not true, (g) no Group Companies or their respective Representatives shall be required to provide, and the Buyer will be solely responsible for the preparation of: (1) pro forma financial information; (2) any description of all or any component of the Debt Financing; or (3) projections, risk factors or other forward-looking statements relating to all or any component of the Debt Financing; and (h) no Group Company shall be required to provide access to or disclose information that the Company determines would jeopardize any attorney–client privilege or other similar privilege of the Company or any of its Subsidiaries. Promptly upon request by the Company, Xxxxx will reimburse the Company for any reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Company, the Company Subsidiaries or any of their Representatives in connection with the cooperation of the Company, the Company Subsidiaries and their Representatives contemplated by this Section 8.11. Except in the case of fraud or a breach of this Agreement, Buyer shall indemnify, defend, indemnify and hold harmless the Group Companies Sellers and their respective Representatives Seller Related Parties from and against any and all losses, damages, awards, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, expenses (including interest, penalties, reasonable legal, consulting claims and other professional fees and expenses and all amounts paid in prosecution, investigation, defense or settlement of any of the foregoing) and other amounts losses suffered or incurred by any of them in connection with (i) any action taken by them at the request of Buyer pursuant to this Section 8.11 or in connection with the arrangement of the Debt Financing or (ii) Financing, any information utilized used in connection therewith, and the foregoing obligations shall survive termination of this Agreement and the occurrence of the Closing. In addition, no action, liability or obligation of the Company, any of the Company Subsidiaries or any of their respective Representatives cooperation pursuant to any certificate, agreement, arrangement, document or instrument relating to any Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) will be effective until the Closing Date. All material, non-public information regarding the Group Companies provided to Buyer or any of its Representatives pursuant to this Section 8.11 shall be kept confidential by them in accordance with the Confidentiality Agreement except for disclosure to potential investors as required in connection with the Debt Financing subject to customary confidentiality protections. Notwithstanding anything to the contrary, the Company shall be deemed to have complied with this Section 8.11 for all purposes of this Agreement (including Article 6 and Article 7) unless the Debt Financing has not been obtained primarily as a result of the Company’s Willful Breach of its obligations under this Section 8.11. Notwithstanding anything herein to the contrary, Xxxxx acknowledges and agrees that obtaining any Debt Financing is not a condition to the Closing.this
Appears in 1 contract
Samples: Securities Purchase Agreement (Nine Energy Service, Inc.)
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, (a) Prior to obtain debt financing to fund any portion earlier of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (x) provide Seller and the Company with written notice that such Debt Financing has been obtained and (y) deliver (Closing or cause to be delivered) to Seller and the Company true, correct and complete copies termination of all arrangements pursuant to which any Financing Parties shall have committed to provide any portion of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further that, in no event shall the receipt of such Debt Financing be a condition to Closing and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. Prior to the Closing, subject to Section 8.11.2in accordance with Article 8, the Company shall use reasonable best efforts toefforts, and shall use reasonable best efforts to cause the Company Subsidiaries and its and Representatives to use their respective Representatives reasonable best efforts, to, in each case at BuyerParent’s sole cost and expense, provide to Buyer such customary cooperation that is reasonably requested by Buyer that is reasonably necessary Parent or Merger Sub to assist Xxxxxx and Merger Sub in arranging, obtaining and syndicating connection with their efforts to obtain the Debt Financing or any Alternative Financing, if any which cooperation shall include reasonable best efforts to do the following:
(provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the operations of the Group Companies), including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies as may be reasonably requested by Buyer for the completion of the Debt Financing, (bi) participating (which shall be limited to teleconference or virtual meeting platforms) in telephonic meetings and otherwise reasonably assisting with the preparation a reasonable number of appropriate and customary materials customary lender meetings, lender presentations, due diligence sessions and rating agency meetings, in each case, upon reasonable advance notice, during normal business hours and at mutually agreed times;
(including accounting due diligence sessionsii) providing reasonable assistance to Parent and sessions with Merger Sub in their preparation of customary rating agencies agency presentations, customary bank information memoranda and similar documents reasonably and customarily required in connection with the Debt Financing or any Alternative Financing, in each case, solely with respect to information relating to the Company and its business, and promptly furnishing, to the extent reasonable practicable, to Parent and customary for financings Merger Sub such information regarding the Company (and updates thereto as reasonably requested by such Persons), including historical financial information, in each case, that is readily available from the books and records of such type, (c) reasonably assisting the Company in the preparation ordinary course of (i) customary bank information memorandabusiness, lender and investor presentations, offering documents, offering or private placement memoranda and other similar marketing documents customary financial information as is reasonably requested by Xxxxxx and due diligence efforts for Merger Sub in connection with the Debt Financing and (ii) customary authorization and representation lettersor any Alternative Financing, each as or that is customarily required in connection with the execution of financings of a type similar to the Debt Financing or any Alternative Financing, ;
(iii) ensuring that an officer of the Company executes prior to the Closing customary “authorization” letters in connection with bank information memoranda authorizing the distribution of information to prospective lenders and containing a representation that the public side of such documents, if any, do not include any information about any Group Company or any securities of any Group Company that would constitute material non-public information within the meaning of the United States federal and state securities laws if any Group Company were a public reporting company, lenders; and
(d) using reasonable best efforts to cause the Company’s independent registered accounting firm to provide customary assistance, including (i) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) in connection with any capital markets transaction comprising a part of the Debt Financing, (ii) providing customary consents to the inclusion of their audit report in respect of any financial statements of the Company and the Company Subsidiaries in any offering documents relating to the Debt Financing and (iii) reasonable assistance and cooperation to Buyer with respect to any auditor due diligence, (e) subject to and conditioned on the occurrence of the Closing, the taking of customary corporate actions reasonably necessary to permit the consummation of and funding of the Debt Financing, (f) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth in any definitive document relating to the Debt Financing to the extent satisfaction of such condition requires the cooperation of, or is within the control of, the Group Companies, (giv) delivering to Buyer at least three four (34) Business Days prior to the Closing all such Date information and documentation related to the Company required and information as is reasonably requested in writing by Buyer Parent or Merger Sub at least ten eight (10) 8) Business Days prior to the Closing Date with respect to the extent required by U.S. regulatory authorities compliance under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act Act.
(b) The cooperation and other obligations contemplated by Section 6.17(a) shall not (A) require any action that would (or would reasonably be expected to) cause the requirements of 31 C.F.R. §1010.230, (h) facilitating and assisting in the preparation and delivery failures of any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates condition of the Company to the Closing or other definitive documents relating any condition related to the availability of the Debt Financing relating to at the Group Companies, and their respective businesses Closing to be included in satisfied, (B) require the definitive documents relating Company or its Representatives to the Debt Financing, and assist with the execution and delivery of the same, in each case, solely to the extent reasonable and customary for financings of such type, (i) cooperating other than with internal and external counsel of Buyer 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 Debt Financing, in each case, solely respect to the extent reasonable and customary for financings authorization letter contemplated by Section 6.17(a)(iii), execute, deliver, enter into, approve or perform any agreement, commitment, document, certificate or instrument, or modification of such typeany agreement, and (j) obtaining and providing documents to Buyer (including draft payoff letters) relating to the repayment of the Indebtedness and the release of related guarantees and Liens in accordance with the terms of this Agreement. The Company hereby consentscommitment, on behalf of itself and the Group Companiesdocument, to the use of the logos of the Group Companies in connection with the Debt Financing; provided that such logos are used solely in a manner that is not intended to, nor is reasonably likely to, harm certificate or disparage the Company’s or any of its Affiliates’ reputation or goodwill.
8.11.2. Notwithstanding anything in this Agreement to the contrary, (a) no Group Company nor any of their respective Representatives shall be required, under the provisions of this Section 8.11 or otherwise in connection with the Debt Financing, to pay any commitment or other similar fee or enter into any binding agreement (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) or commitment instrument or incur any other actual or potential liability or obligation relating to the Debt Financing, in each case, that becomes effective prior to the Closing, (ii) deliver or cause the delivery of any legal opinions or reliance letters or any certificate as to solvency or any other certificate in connection with the Debt Financing prior to the Closing that is not advanced Financing, excluding any customary authorization letters contemplated by BuyerSection 6.17(a)(iii), (biii) no Group Company adopt any resolutions, execute any consents or otherwise take any of their respective Representativescorporate or similar action or deliver any certificate, managers, officers or employees shall be required to execute or enter into, perform or authorize any agreement with respect in connection to the Debt Financing (other than or the execution incurrence of the authorization letters referred to indebtedness thereby, in clause (c)(ii) of Section 8.11.1) each case, that is not contingent upon the Closing or that would be becomes effective prior to the Closing Dateor (iv) pay any commitment or other similar fee, incur or reimburse any costs or expenses or incur any liability or obligation of any kind or give any indemnities prior to the Closing in connection with the Debt Financing, other than any payment or reimbursement of incidental out-of-pocket costs and expenses that are subject to reimbursement by Parent or Merger Sub, (cC) no Representative, manager, officer or employee require the change of any Group fiscal period, (D) require the Company shall to provide, or cause to be required to deliver provided, any certificate information the disclosure of which is prohibited or take restricted under applicable Law or any other action pursuant to binding agreement with a third party that is not entered into for the purpose of evading this Section 8.11 to the extent any such action would covenant or is legally privileged or consists of attorney work product or could reasonably be expected to result in personal liability to such Representativethe loss of any attorney-client privilege, manager, officer attorney work product protections or employeesimilar protections, (dE) no Group require the Company or their respective Representatives shall be required to take any action that would reasonably be expected, in the reasonable judgment of the Company, to will conflict with, with or violate any applicable Laws or result in any a violation or breach of, any applicable Lawsor default under, any organizational documents Material Contract to which the Company is a party (other than any agreement entered into for the purpose of any Group Companyevading this covenant), any contract or obligations (F) unreasonably interfere with the ongoing operations of confidentiality (not created in contemplation hereof) binding on any Group the Company, (eG) no Group require the preparation or delivery of any financial statements or other financial data that are not prepared in the ordinary course of its financial reporting practice, (H) cause any representation or warranty in this Agreement to be breached, (I) cause any director, officer, employee or stockholder of the Company or the Company to incur any personal liability or (J) conflict with the Company’s certificate of their respective Representatives incorporation or bylaws; it being understood and agreed that under no circumstances shall the Company be required to take any action that would cause any condition provide projections, estimates or pro forma financial information relating to the Closing set forth herein Transactions, including any pro forma cost savings, synergies, capitalization or other pro forma adjustments relating to not the Transactions and to be satisfied or otherwise cause incorporated into any breach of this Agreement, (f) no Group Company or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, the Company has, in its good faith, determined is not true, (g) no Group Companies or their respective Representatives shall be required to provide, and the Buyer will be solely responsible for the preparation of: (1) pro forma financial information, all of which shall be the responsibility of Parent and Merger Sub.
(c) All non-public or other confidential information provided by the Company to Parent or its Affiliates pursuant to this Section 6.17 shall be kept confidential in accordance with the Confidentiality Agreement; (2) provided, that, notwithstanding any description of all the foregoing, Parent and its Affiliates and the Debt Financing Sources may disclose any such non-public or any component otherwise confidential information in connection with the arrangement, execution and syndication of the Debt Financing; or (3) projections, risk factors or other forward-looking statements relating to all Financing or any component of Alternative Financing, subject to customary confidentiality undertakings consistent with the Debt Financing; and Commitment Letters or otherwise as is customary in syndication practices in the relevant financing market.
(hd) no Group Company shall be required to provide access to or disclose information that the Company determines would jeopardize any attorney–client privilege or other similar privilege of the Company or any of its Subsidiaries. Promptly upon Parent shall, following request by the Company, Xxxxx will reimburse the Company for any reasonable and documented out-of-pocket expenses and costs and expenses (including reasonable and documented out-of-pocket outside attorneys’ feesfees and disbursements) incurred by the Company, the Company Subsidiaries or any of their Representatives in connection with the cooperation of the Company, the Company Subsidiaries and their Representatives contemplated by ’s or its Affiliates’ or Representatives’ obligations under this Section 8.11. Except in the case of fraud or a breach of this Agreement, Buyer 6.17 and shall indemnify, defend, indemnify and hold harmless the Group Companies Company, its Subsidiaries and their respective Representatives from and against any and all losses, damages, claims, costs (including cost of investigation), settlement payments, injuries, liabilities, judgments, awards, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, fines or expenses (including interest, penalties, reasonable legal, consulting and other professional documented out-of-pocket attorneys’ fees and expenses and all amounts paid in prosecution, investigation, defense or settlement of any of the foregoingdisbursements) and other amounts suffered or incurred by any of them in connection with (i) any action taken by them at the request of Buyer pursuant to this Section 8.11 as a result of, or in connection with the arrangement of with, (1) such cooperation, (2) the Debt Financing or Financing, and (ii3) any information utilized in connection therewith, and the foregoing obligations shall survive termination of this Agreement and the occurrence of the Closing. In addition, no action, liability or obligation of the Company, any of the Company Subsidiaries or any of their respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to any Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) will be effective until the Closing Date. All material, non-public information regarding the Group Companies provided to Buyer or any of its Representatives pursuant to this Section 8.11 shall be kept confidential by them in accordance with the Confidentiality Agreement except for disclosure to potential investors as required used in connection with the Debt Financing subject to customary confidentiality protections. Notwithstanding anything to the contrarythat was not provided by, or on behalf of, the Company shall be deemed or any of its Affiliates or that was not included in, or discernable from, public filings by the Company or any of its Affiliates, except, in each case, to have complied with this Section 8.11 for all purposes the extent such losses, damages, claims, costs (including cost of investigation), settlement payments, injuries, liabilities, judgments, awards, penalties, fines, or expenses (including outside attorneys’ fees and disbursements) arose from fraud, willful misconduct or gross negligence by, or breach of its material obligations under this Agreement (including Article 6 and Article 7) unless by, the Company, its Affiliates or any of their respective Representatives, as determined in a final, non-appealable judgment of a court of competent jurisdiction. The Company hereby consents to the use of its logos in connection with the Debt Financing has so long as such logos are used solely in a manner that is not been obtained primarily as a result intended or reasonably likely to harm, disparage or otherwise adversely affect the Company or the reputation or goodwill of the Company’s Willful Breach of its obligations under this Section 8.11. Notwithstanding anything herein to the contrary, Xxxxx acknowledges and agrees that obtaining any Debt Financing is not a condition to the Closing.
Appears in 1 contract
Samples: Merger Agreement (Encore Wire Corp)
Financing Cooperation. 8.11.1The Partnership agrees to provide reasonable cooperation in connection with the arrangement and consummation of, and the negotiation of agreements with respect to, the Debt Financing and any Alternative Debt Financing. Buyer may determine, In furtherance of and not in its sole discretion, to obtain debt financing to fund any portion limitation of the Purchase Price foregoing, the Partnership shall (a) cause the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (x) provide Seller and the Company with written notice that such Debt Financing has been obtained and (y) deliver (or cause to be delivered) to Seller and the Company true, correct and complete copies of all arrangements pursuant to which any Financing Parties shall have committed to provide any portion management of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further thatPartnership, in no event shall the receipt of such Debt Financing be a condition to Closing and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. Prior to the Closing, subject to Section 8.11.2, the Company shall use reasonable best efforts to, and shall use reasonable best efforts to cause the Company Subsidiaries and its OpCo and their respective Representatives toSubsidiaries to be reasonably available, on reasonable advance notice, to Parent and the Debt Financing Sources providing the Debt Financing and any Alternative Debt Financing to participate in due diligence sessions, (b) assist in the preparation of one or more appropriate and customary offering documents and assisting Parent and the Debt Financing Sources providing the Debt Financing and any Alternative Debt Financing in preparing other appropriate and customary marketing materials, in each case at Buyer’s sole expense, provide to Buyer such cooperation reasonably requested by Buyer that is reasonably necessary in arranging, obtaining and syndicating the Debt Financing, if any (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the operations of the Group Companies), including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies as may be reasonably requested by Buyer for the completion of the Debt Financing, (b) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies used in connection with the Debt Financing to the extent reasonable and customary for financings of such typeany Alternative Debt Financing, and (c) reasonably assisting request the independent auditors with respect to the Partnership, OpCo and their respective Subsidiaries to prepare and deliver “comfort letters,” dated the date of each offering document used in the preparation of (i) customary bank information memoranda, lender and investor presentations, offering documents, offering or private placement memoranda and other similar marketing documents and due diligence efforts for the Debt Financing and (ii) customary authorization and representation letters, each as required connection with any transaction in connection with the Debt Financing, authorizing Financing and any Alternative Debt Financing (with appropriate bring down comfort letters delivered on the distribution of information to prospective lenders and containing a representation that the public side of such documents, if any, do not include any information about any Group Company or any securities of any Group Company that would constitute material non-public information within the meaning closing date of the United States federal Debt Financing and state securities laws if any Group Company were a public reporting companyAlternative Debt Financing), (d) using reasonable best efforts in compliance with professional standards and otherwise on terms reasonably acceptable to cause Parent, as the Company’s independent registered accounting firm to provide case may be, in each of the foregoing cases as may be necessary and customary assistance, including (i) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) in connection with any capital markets transaction comprising a part of the Debt Financing, (ii) providing customary consents to the inclusion of their audit report in respect of any financial statements of the Company and the Company Subsidiaries in any offering documents relating financing substantially similar to the Debt Financing and (iii) reasonable assistance and cooperation to Buyer with respect to any auditor due diligence, (e) subject to and conditioned on the occurrence of the Closing, the taking of customary corporate actions reasonably necessary to permit the consummation of and funding of the Alternative Debt Financing; provided, however, that the Partnership shall be reimbursed promptly (f) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth and in any definitive document relating to the Debt Financing to the extent satisfaction of such condition requires the cooperation of, or is within the control of, the Group Companies, (g) delivering to Buyer at least three (3) event with 10 Business Days prior of providing invoices to Parent) by Parent for all reasonable out-of-pocket expenses incurred by the Closing all such documentation and information as is reasonably requested in writing by Buyer at least ten (10) Business Days prior to the Closing to the extent required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act and the requirements of 31 C.F.R. §1010.230, (h) facilitating and assisting in the preparation and delivery of any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents relating to the Debt Financing relating to the Group Companies, and their respective businesses to be included in the definitive documents relating to the Debt Financing, and assist with the execution and delivery of the same, in each case, solely to the extent reasonable and customary for financings of such type, (i) cooperating with internal and external counsel of Buyer in connection with providing customary back-up certificates and factual information regarding any legal opinion that such counsel may be required to deliver Partnership in connection with the Debt Financingforegoing. Notwithstanding the foregoing, nothing contained in each casethis Section 6.17 shall require (i) any officer, solely to the extent reasonable and customary for financings of such typeemployee, and (j) obtaining and providing documents to Buyer (including draft payoff letters) relating to the repayment director or consultant of the Indebtedness and the release of related guarantees and Liens in accordance with the terms of this Agreement. The Company hereby consentsPartnership, on behalf of itself and the Group Companies, to the use of the logos of the Group Companies in connection with the Debt Financing; provided that such logos are used solely in a manner that is not intended to, nor is reasonably likely to, harm OpCo or disparage the Company’s or any of its Affiliates’ reputation or goodwill.
8.11.2. Notwithstanding anything in this Agreement to the contrary, (a) no Group Company nor any of their respective Representatives shall be requiredSubsidiaries to participate in any way with any Debt Financing or any Alternative Debt Financing, under the provisions any capital markets transactions conducted by or on behalf of this Section 8.11 Parent, any due diligence sessions, management presentations, roadshows or otherwise other marketing activities in connection with the any Debt Financing, Alternative Debt Financing or any other capital markets transactions or related transactions by Parent in connection with financing the transactions contemplated by the Transaction Documents, (ii) the Partnership or any management of the Partnership, OpCo or any of their respective Subsidiaries to engage in any action that would interfere unreasonably with the business of the Partnership, OpCo and their respective Subsidiaries, or (iii) the Partnership, OpCo or any of their respective Affiliates to pay any commitment or other similar fee or enter into any binding agreement (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) or commitment or incur any other actual or potential liability or obligation in connection with the any Debt Financing prior or any Alternative Debt Financing; provided, however, that the General Partner, the Partnership and OpCo exercise reasonable efforts to make their respective management reasonably available in connection with their obligation to provide reasonable cooperation to the Closing that is not advanced by Buyer, (b) no Group Company or any of their respective Representatives, managers, officers or employees shall be required to execute or enter into, perform or authorize any agreement with respect to the Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) that is not contingent upon the Closing or that would be effective prior to the Closing Date, (c) no Representative, manager, officer or employee of any Group Company shall be required to deliver any certificate or take any other action Parent pursuant to this Section 8.11 to the extent any such action would reasonably be expected to result in personal liability to such Representative, manager, officer or employee, (d) no Group Company or their respective Representatives 6.17. Parent shall be required to take any action that would reasonably be expected, in the reasonable judgment of the Company, to conflict with, or result in any violation or breach of, any applicable Laws, any organizational documents of any Group Company, any contract or obligations of confidentiality (not created in contemplation hereof) binding on any Group Company, (e) no Group Company or any of their respective Representatives shall be required to take any action that would cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement, (f) no Group Company or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, the Company has, in its good faith, determined is not true, (g) no Group Companies or their respective Representatives shall be required to provide, and the Buyer will be solely responsible for the preparation of: (1) pro forma financial information; (2) any description of all or any component of the Debt Financing; or (3) projections, risk factors or other forward-looking statements relating to all or any component of the Debt Financing; and (h) no Group Company shall be required to provide access to or disclose information that the Company determines would jeopardize any attorney–client privilege or other similar privilege of the Company or any of its Subsidiaries. Promptly upon request by the Company, Xxxxx will reimburse the Company for any reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Company, the Company Subsidiaries or any of their Representatives in connection with the cooperation of the Company, the Company Subsidiaries and their Representatives contemplated by this Section 8.11. Except in the case of fraud or a breach of this Agreement, Buyer shall indemnify, defend, indemnify and hold harmless the Group Companies Partnership, OpCo and their respective Representatives Affiliates and their respective directors, officers and employees from and against any and all losses, damages, awards, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecution, investigation, defense or settlement of any of the foregoing) and other amounts Losses suffered or incurred by them in connection with (i) the arrangement and completion of any action taken Debt Financing or any Alternative Debt Financing, capital markets transactions or related transactions by them at the request of Buyer pursuant to this Section 8.11 or Parent in connection with financing the arrangement of transactions contemplated by the Debt Financing or (ii) Transaction Documents and any information utilized in connection therewiththerewith except with respect to information in respect of the Partnership, OpCo and their respective Subsidiaries supplied by the foregoing obligations shall survive termination Partnership and its Representatives specifically for inclusion or incorporation by reference therein, to the extent such Losses are not caused by a breach by the General Partner, Partnership or OpCo of this Agreement and or otherwise caused by the occurrence gross negligence or willful misconduct of the Closing. In additionGeneral Partner, no actionPartnership, liability or obligation of the Company, any of the Company Subsidiaries OpCo or any of their respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to any Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) will be effective until the Closing Date. All material, non-public information regarding the Group Companies provided to Buyer or any of its Representatives pursuant to this Section 8.11 shall be kept confidential by them in accordance with the Confidentiality Agreement except for disclosure to potential investors as required in connection with the Debt Financing subject to customary confidentiality protections. Notwithstanding anything to the contrary, the Company shall be deemed to have complied with this Section 8.11 for all purposes of this Agreement (including Article 6 and Article 7) unless the Debt Financing has not been obtained primarily as a result of the Company’s Willful Breach of its obligations under this Section 8.11. Notwithstanding anything herein to the contrary, Xxxxx acknowledges and agrees that obtaining any Debt Financing is not a condition to the ClosingAffiliates.
Appears in 1 contract
Financing Cooperation. 8.11.17.16.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of During the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (x) provide Seller and the Company with written notice that such Debt Financing has been obtained and (y) deliver (or cause to be delivered) to Seller and the Company true, correct and complete copies of all arrangements pursuant to which any Financing Parties shall have committed to provide any portion of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further that, in no event shall the receipt of such Debt Financing be a condition to Closing and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. Prior to the Closing, subject to Section 8.11.2Interim Period, the Company shall use reasonable best efforts toshall, and shall use reasonable best efforts to cause the Company Subsidiaries and its Group Companies and their respective Representatives to, use their respective reasonable best efforts to reasonably cooperate with Buyer in each case at Buyer’s sole expense, provide to Buyer such cooperation connection with the arrangement of the Financing as may be reasonably requested by Buyer that is reasonably necessary in arranging, obtaining and syndicating Buyer. Such cooperation shall include using reasonable best efforts to take the Debt Financing, if any following actions: (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the operations of the Group Companies), including as promptly as reasonably practical, (ai) furnishing Buyer and its Financing Sources with the Required Financial Information such financial and other reasonably pertinent information regarding the Group Companies as may be is reasonably requested by Buyer for or the completion of the Debt FinancingFinancing Sources, (bii) participating in telephonic meetings and otherwise reasonably assisting with (A) the preparation of pro forma financial information proposed or necessary to be included in any offering memoranda, private placement memoranda, prospectuses, rating agency presentations, bank information memoranda, “public” and “private” marketing materials and similar documents, and (B) projections or other forward looking statements (it being understood that the Buyer shall remain responsible for the preparation of all such financial information, projections, and other forward looking statements); (iii) making appropriate officers and customary materials customary executive employees reasonably available to participate in meetings, conference calls, presentations, due diligence sessions sessions, road shows and drafting sessions, and to reasonably assist in the preparation of offering memoranda, private placement memoranda, prospectuses, rating agency presentations, bank information memoranda, “public” and “private” marketing materials and similar documents; (including accounting due diligence sessionsiv) providing Buyer at least five (5) Business Days prior to the Closing Date with customary requested documentation and sessions other customary requested information with rating agencies respect to the Group Companies as is reasonably requested in writing by Buyer in connection with the Debt Financing to the extent reasonable and customary for financings of such type, required by regulatory authorities under applicable “know-your-customer” and Money Laundering Laws; (cv) reasonably assisting in the preparation of, and executing and delivering, customary definitive financing documentation (including disclosure schedules), guarantees and grants or pledges of collateral; (ivi) customary bank information memoranda, lender and investor presentations, offering documents, offering or private placement memoranda and other similar marketing documents and due diligence efforts for obtaining assistance (including consenting to the Debt use of their audit reports in materials relating to the Financing and (iiissuing “comfort letters”, in each case, on customary terms) customary authorization and representation letters, each as required in connection with the Debt Financing, authorizing the distribution of information to prospective lenders and containing a representation that the public side of such documents, if any, do not include any information about any Group Company or any securities of any Group Company that would constitute material non-public information within the meaning of the United States federal and state securities laws if any Group Company were a public reporting company, (d) using reasonable best efforts to cause from the Company’s independent registered accounting firm accountants with respect to provide customary assistance, including (i) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) in connection with any capital markets transaction comprising a part of financial information customarily derived from the Debt Financing, (ii) providing customary consents to the inclusion of their audit report in respect of any financial statements of the Company and other financial information customarily included in an offering document; (vii) causing the chief financial officer or other authorized officer with similar responsibilities of the Company Subsidiaries in any offering documents relating (who is or will be such officer immediately after effect to the Debt Financing and (iiiClosing) reasonable assistance and cooperation to Buyer deliver a customary certificate with respect to financial information customarily contained in an offering document that is not covered by a “comfort” letter; (viii) cooperating in the replacement or backstop of any auditor due diligence, applicable outstanding letters of credit issued; and (eix) subject to and conditioned on the occurrence of the Closing, the taking of customary reasonable corporate or organizational actions reasonably necessary to permit the consummation of and funding of the Debt Financing, (f) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth in any definitive document relating .
7.16.2. Notwithstanding anything which may be to the Debt Financing to the extent satisfaction contrary in Section 7.16.1, none of such condition requires the cooperation of, or is within the control of, the Group Companies, (g) delivering to Buyer at least three (3) Business Days prior to the Closing all such documentation and information as is reasonably requested in writing by Buyer at least ten (10) Business Days prior to the Closing to the extent required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act and the requirements of 31 C.F.R. §1010.230, (h) facilitating and assisting in the preparation and delivery of any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents relating to the Debt Financing relating to the Group Companies, and their respective businesses to be included in the definitive documents relating to the Debt Financing, and assist with the execution and delivery of the same, in each case, solely to the extent reasonable and customary for financings of such type, (i) cooperating with internal and external counsel of Buyer 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 Debt Financing, in each case, solely to the extent reasonable and customary for financings of such type, and (j) obtaining and providing documents to Buyer (including draft payoff letters) relating to the repayment of the Indebtedness and the release of related guarantees and Liens in accordance with the terms of this Agreement. The Company hereby consents, on behalf of itself and the Group Companies, to the use of the logos of the Group Companies in connection with the Debt Financing; provided that such logos are used solely in a manner that is not intended to, nor is reasonably likely to, harm or disparage the Company’s or any of its Affiliates’ reputation or goodwill.
8.11.2. Notwithstanding anything in this Agreement to the contrary, (a) no Group Company nor any of their respective Representatives shall be required, under the provisions of this Section 8.11 or otherwise in connection with the Debt Financing, to pay any commitment or other similar fee or enter into any binding agreement (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) or commitment or incur any other actual or potential liability or obligation in connection with the Debt Financing prior to the Closing that is not advanced by Buyer, (b) no Group Company or any of their respective Representatives, managers, officers or employees shall be required to execute take any of the following actions pursuant to such Section or enter intootherwise pursuant to any other provision of this Agreement in connection with the Financing: (a) any action, perform effort or undertaking that unreasonably interferes with the ongoing normal business operations of the Group Companies; (b) the passing of resolutions or consents to approve or authorize any agreement with respect to the Debt Financing (other than the execution of the authorization letters referred to Financing or any agreement in clause (c)(ii) of Section 8.11.1) connection therewith, in each case that is are not contingent upon the occurrence of the Closing or that would be effective prior to the Closing Date, Closing; (c) no Representativethe execution or delivery of any certificate, managerdocument, officer instrument or employee agreement, in each case that is not contingent upon the occurrence of the Closing or that would be effective prior to the Closing; (d) any action, effort or undertaking that would, or would reasonably be expected to, result in any representation or warranty of any Seller or the Company in this Agreement being breached (unless waived in writing by Buyer); (e) the payment of any commitment or other similar fee or the incurrence of any other expense, liability or obligation, in each case other than those solely payable following the Closing or that are reimbursed by Buyer; (f) any action, effort or undertaking that would, or would reasonably be expected to result in, any Representative of any Group Company shall be required to deliver incurring any certificate personal liability; (g) any action, effort or take any other action pursuant to this Section 8.11 to the extent any such action undertaking that would, or would reasonably be expected to result in personal liability to such Representativeany, manager, officer or employee, (d) no Group Company or their respective Representatives shall be required to take any action that would reasonably be expected, in the reasonable judgment breach of the Company, to conflict with, or result in any violation or breach of, any applicable Laws, any organizational documents Organizational Documents of any Group Company, any contract or obligations of confidentiality (not created in contemplation hereof) binding on any Group Companyapplicable Legal Requirements, (e) no Group Company or any of their respective Representatives shall be required to take any action that would cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of Contract (including this Agreement, (f) no Group Company or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, the Company has, in its good faith, determined is not true, (g) no Group Companies or their respective Representatives shall be required to provide, and the Buyer will be solely responsible for the preparation of: (1) pro forma financial information; (2) any description of all or any component of the Debt Financing); or (3h) projections, risk factors the preparation of any financial statements or other forward-looking statements relating to all or any component of the Debt Financing; and (h) no Group Company shall be required to provide access to or disclose information that are not available to the Company determines would jeopardize any attorney–client privilege or other similar privilege Group Companies and prepared in the ordinary course of the Company or any of its Subsidiariestheir financial reporting practices.
7.16.3. Promptly upon request by the Company, Xxxxx will The Buyer shall reasonably promptly reimburse the Company Group Companies for any reasonable costs and out-of-pocket expenses (including reasonable out-of-pocket attorneys’ fees) incurred by the Company, the Company Subsidiaries or any of their Representatives Group Companies in connection with the cooperation of the Company, the Company Subsidiaries and their Representatives contemplated by this Section 8.117.16. Except in Notwithstanding the case of fraud or a breach of this Agreementforegoing, Buyer shall indemnify, defend, not be responsible for: (i) amounts payable to employees of the Group Companies; or (ii) that would have been incurred in connection with the Transactions had the Financing not been incurred or contemplated. The Buyer shall indemnify and hold harmless the Sellers, the Group Companies and their respective Representatives from and against any and all losses, damages, awards, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecution, investigation, defense or settlement of any of the foregoing) and other amounts liabilities to third parties actually suffered or incurred by them in connection with the Financing and any information used in connection therewith (other than information provided to the Buyer in writing by the Group Companies for inclusion in any offering materials relating to the Financing).
7.16.4. The Buyer confirms and acknowledges that in no event shall the receipt or availability of (i) any action taken funds or financing (including the Financing) by them at or to the request Buyer or any of Buyer pursuant to this Section 8.11 or in connection with the arrangement of the Debt Financing its Affiliates or (ii) any information utilized in connection therewith, and the foregoing obligations shall survive termination of this Agreement and the occurrence of the Closing. In addition, no action, liability or obligation of the Company, other financing transaction be a condition to any of the Company Subsidiaries or any of their respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to any Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) will be effective until the Closing Date. All material, non-public information regarding the Group Companies provided to Buyer or any of its Representatives pursuant to this Section 8.11 shall be kept confidential by them in accordance with the Confidentiality Agreement except for disclosure to potential investors as required in connection with the Debt Financing subject to customary confidentiality protections. Notwithstanding anything to the contrary, the Company shall be deemed to have complied with this Section 8.11 for all purposes of this Agreement (including Article 6 and Article 7) unless the Debt Financing has not been obtained primarily as a result of the CompanyBuyer’s Willful Breach of its obligations under this Section 8.11. Notwithstanding anything herein to the contrary, Xxxxx acknowledges and agrees that obtaining any Debt Financing is not a condition to the ClosingAgreement.
Appears in 1 contract
Samples: Equity Purchase Agreement (BrightSphere Investment Group Inc.)
Financing Cooperation. 8.11.1. Buyer may determine(a) Prior to the Closing Date, in its sole discretion, to obtain debt financing to fund any portion each of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (x) provide Seller and the Company will use its commercially reasonable efforts, and will use commercially reasonable efforts to cause each of their respective officers, employees and advisers to use commercially reasonable efforts, to provide Purchaser with written notice that such Debt Financing has been obtained and (y) deliver (or cause cooperation reasonably requested in writing by Purchaser to be delivered) to Seller assist it in connection with the arrangement and the Company true, correct and complete copies of all arrangements pursuant to which any Financing Parties shall have committed to provide any portion closing of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further that, in no event shall the receipt of such Debt Financing be a condition to Closing and Buyer confirms that it will have all cases at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. Prior to the Closing, subject to Section 8.11.2, the Company shall use reasonable best efforts to, and shall use reasonable best efforts to cause the Company Subsidiaries and its and their respective Representatives to, in each case at BuyerPurchaser’s sole expense, provide to Buyer such cooperation reasonably requested by Buyer that is reasonably necessary in arranging, obtaining cost and syndicating the Debt Financing, if any expense (and provided that such requested cooperation is consistent with applicable Laws Applicable Law and does not unreasonably interfere with the operations of the Group CompaniesCompany), including as promptly as reasonably practical, using commercially reasonable efforts in connection with:
(a) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies as may be reasonably requested by Buyer for the completion of the Debt Financing, (bi) participating in telephonic meetings and otherwise reasonably assisting with the preparation a reasonable number of appropriate and customary materials customary meetings, presentations, due diligence sessions, drafting sessions (including accounting due diligence sessions) and sessions with rating agencies in connection and otherwise reasonably cooperating with the marketing efforts of the Purchaser and the Financing Sources (including using commercially reasonable efforts to cause the syndication of the Debt Financing to benefit from the extent reasonable existing banking relationships of the Company);
(ii) assisting Purchaser and customary for financings of such type, (c) reasonably assisting in the Financing Sources with the preparation of (i) customary materials for rating agency presentations, bank information memorandamemoranda (confidential and public), lender business projections and investor presentations, offering documents, offering or private placement memoranda and other similar marketing documents and due diligence efforts for the Debt Financing and (ii) customary authorization and representation letters, each as pro forma financial statements required in connection with the Debt Financing, authorizing the distribution of ; including by providing information to prospective lenders and containing a representation that the public side of such documents, if any, do not include any information about any Group Company or any securities of any Group Company that would constitute material non-public information within the meaning of the United States federal and state securities laws if any Group Company were a public reporting company, (d) using reasonable best efforts to cause the Company’s independent registered accounting firm to provide customary assistance, including (i) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) in connection with any capital markets transaction comprising a part of the Debt Financing, (ii) providing customary consents to the inclusion of their audit report in respect of any financial statements of the Company and the Company Subsidiaries in any offering documents relating to the Debt Financing and (iii) reasonable assistance and cooperation to Buyer with respect to any auditor due diligence, (e) subject to and conditioned on the occurrence of the Closing, the taking of customary corporate actions reasonably necessary to permit the consummation of and funding of the Debt Financing, (f) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth in any definitive document relating to the Debt Financing to the extent satisfaction of such condition requires the cooperation of, or is within the control of, the Group Companies, (g) delivering to Buyer at least three (3) Business Days prior to the Closing all such documentation and information as is answering questions reasonably requested in writing by Buyer at least ten Purchaser to convert the Company’s financial information from GAAP to International Financial Reporting Standards (10“IFRS”) Business Days prior (it being understood that Purchaser and not Seller or the Company shall be solely responsible for the preparation of pro forma financial statements and the conversion of any such financial information from GAAP to the Closing IFRS);
(iv) to the extent required requested in writing by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulationsPurchaser, including the PATRIOT Act and the requirements using commercially reasonable efforts to obtain consents of 31 C.F.R. §1010.230, (h) facilitating and assisting accountants for use of their reports in the preparation and delivery of any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents relating to the Debt Financing relating to the Group Companies, and their respective businesses to be included in the definitive documents materials relating to the Debt Financing, and assist with the execution and delivery of the same, in each case, solely to the extent reasonable and customary for financings of such type, (i) cooperating with internal and external counsel of Buyer 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 Debt Financing, in each case, solely to the extent reasonable and customary for financings of such type, and (j) obtaining and providing documents to Buyer (including draft payoff letters) relating to the repayment of the Indebtedness and the release of related guarantees and Liens in accordance with the terms of this Agreement. The Company hereby consents, on behalf of itself and the Group Companies, to the use of the logos of the Group Companies in connection with the Debt Financing; provided that such logos are used solely in a manner that is not intended to, nor is case as reasonably likely to, harm or disparage the Company’s or any of its Affiliates’ reputation or goodwill.
8.11.2. Notwithstanding anything in this Agreement to the contrary, (a) no Group Company nor any of their respective Representatives shall be required, under the provisions of this Section 8.11 or otherwise in connection with the Debt Financing, to pay any commitment or other similar fee or enter into any binding agreement (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) or commitment or incur any other actual or potential liability or obligation in connection with the Debt Financing prior to the Closing that is not advanced requested by Buyer, (b) no Group Company or any of their respective Representatives, managers, officers or employees shall be required to execute or enter into, perform or authorize any agreement with respect to the Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) that is not contingent upon the Closing or that would be effective prior to the Closing Date, (c) no Representative, manager, officer or employee of any Group Company shall be required to deliver any certificate or take any other action pursuant to this Section 8.11 to the extent any such action would reasonably be expected to result in personal liability to such Representative, manager, officer or employee, (d) no Group Company or their respective Representatives shall be required to take any action that would reasonably be expected, in the reasonable judgment of the Company, to conflict with, or result in any violation or breach of, any applicable Laws, any organizational documents of any Group Company, any contract or obligations of confidentiality (not created in contemplation hereof) binding on any Group Company, (e) no Group Company or any of their respective Representatives shall be required to take any action that would cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement, (f) no Group Company or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, the Company has, in its good faith, determined is not true, (g) no Group Companies or their respective Representatives shall be required to provide, and the Buyer will be solely responsible for the preparation of: (1) pro forma financial information; (2) any description of all or any component of the Debt Financing; or (3) projections, risk factors or other forward-looking statements relating to all or any component of the Debt Financing; and (h) no Group Company shall be required to provide access to or disclose information that the Company determines would jeopardize any attorney–client privilege or other similar privilege of the Company or any of its Subsidiaries. Promptly upon request by the Company, Xxxxx will reimburse the Company for any reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Company, the Company Subsidiaries or any of their Representatives in connection with the cooperation of the Company, the Company Subsidiaries and their Representatives contemplated by this Section 8.11. Except in the case of fraud or a breach of this Agreement, Buyer shall indemnify, defend, and hold harmless the Group Companies and their respective Representatives from and against any and all losses, damages, awards, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecution, investigation, defense or settlement of any of the foregoing) and other amounts suffered or incurred by them in connection with (i) any action taken by them at the request of Buyer pursuant to this Section 8.11 or in connection with the arrangement of the Debt Financing or (ii) any information utilized in connection therewith, and the foregoing obligations shall survive termination of this Agreement and the occurrence of the Closing. In addition, no action, liability or obligation of the Company, any of the Company Subsidiaries or any of their respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to any Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) will be effective until the Closing Date. All material, non-public information regarding the Group Companies provided to Buyer or any of its Representatives pursuant to this Section 8.11 shall be kept confidential by them in accordance with the Confidentiality Agreement except for disclosure to potential investors as required in connection with the Debt Financing subject to customary confidentiality protections. Notwithstanding anything to the contrary, the Company shall be deemed to have complied with this Section 8.11 for all purposes of this Agreement (including Article 6 and Article 7) unless the Debt Financing has not been obtained primarily as a result of the Company’s Willful Breach of its obligations under this Section 8.11. Notwithstanding anything herein to the contrary, Xxxxx acknowledges and agrees that obtaining any Debt Financing is not a condition to the Closing.Purchaser;
Appears in 1 contract
Samples: Stock Purchase Agreement (SPX Corp)
Financing Cooperation. 8.11.1. Buyer may determineUpon the request of the CCG, in its sole discretionthe Sellers shall, and shall cause the Acquired Companies and their Subsidiaries, to obtain debt financing use their commercially reasonable efforts to fund any portion of provide such cooperation as may be reasonably requested by CCG in connection with its efforts to consummate the Purchase Price (the “Debt Financing”)Equity Offering; provided that the Buyer shall, promptly after such Debt Financing is obtained (x) provide Seller and the Company with written notice that such Debt Financing has been obtained and (y) deliver (or cause to be delivered) to Seller and the Company true, correct and complete copies of all arrangements pursuant to which any Financing Parties shall have committed to provide any portion of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further that, in no event shall the receipt of such Debt Financing be a condition to Closing and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. Prior to the Closing, subject to Section 8.11.2, the Company shall use reasonable best efforts to, and shall use reasonable best efforts to cause the Company Subsidiaries and its and their respective Representatives to, in each case at Buyer’s sole expense, provide to Buyer such cooperation reasonably requested by Buyer that is reasonably necessary in arranging, obtaining and syndicating the Debt Financing, if any (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the ongoing operations of the Group Companies)Acquired Company and their Subsidiaries. Such commercially reasonable efforts shall include, including to the extent reasonably requested by CCG, (a) making available to CCG appropriate personnel of the Acquired Companies and their Subsidiaries, (b) providing, as promptly as reasonably practicalpracticable, (a) furnishing Buyer with information relating to the Required Financial Information Acquired Companies and other pertinent information regarding their Subsidiaries to the Group Companies as may be extent reasonably requested by Buyer CCG to assist in preparation of customary offering or information documents to be used for the completion of the Debt FinancingEquity Offering, (b) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies in connection with the Debt Financing to the extent reasonable and customary for financings of such type, (c) reasonably assisting CCG in the preparation of (i) customary bank information memoranda, lender and investor presentations, offering documents, offering or private placement memoranda and other similar marketing documents and due diligence efforts for the Debt Financing and (ii) customary authorization and representation letters, each as required in connection with the Debt Financing, authorizing the distribution of information to prospective lenders and containing a representation that the public side of such documents, if any, do not include any information about any Group Company or any securities of any Group Company that would constitute material non-public information within the meaning of the United States federal and state securities laws if any Group Company were a public reporting company, (d) using reasonable best efforts to cause the Company’s independent registered accounting firm to provide customary assistance, including (i) providing obtaining customary comfort letters (and consents of the independent accountants of the Acquired Companies and their Subsidiaries, including “negative assurance comfort” and “change period comfort”) with respect to the auditor consents in connection with any capital markets transaction comprising a part of the Debt Financing, (ii) providing customary consents to the inclusion of their audit report in respect of any financial statements of the Company and the Company Subsidiaries in any offering documents relating to the Debt Financing and (iii) reasonable assistance and cooperation to Buyer with respect to any auditor due diligence, (e) subject to and conditioned on the occurrence of the Closing, the taking of customary corporate actions reasonably necessary to permit the consummation of and funding of the Debt Financing, (f) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth in any definitive document relating to the Debt Financing to the extent satisfaction of such condition requires the cooperation of, or is within the control of, the Group Companies, (g) delivering to Buyer at least three (3) Business Days prior to the Closing all such documentation and information as is reasonably requested in writing by Buyer at least ten (10) Business Days prior to the Closing to the extent required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act and the requirements of 31 C.F.R. §1010.230, (h) facilitating and assisting in the preparation and delivery of any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents relating to the Debt Financing relating to the Group Companies, and their respective businesses to be included in the definitive documents relating to the Debt Financing, and assist filings with the execution and delivery of the sameSEC. CCG shall promptly, in each case, solely to the extent reasonable and customary for financings of such type, (i) cooperating with internal and external counsel of Buyer 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 Debt Financing, in each case, solely to the extent reasonable and customary for financings of such type, and (j) obtaining and providing documents to Buyer (including draft payoff letters) relating to the repayment of the Indebtedness and the release of related guarantees and Liens in accordance with the terms of this Agreement. The Company hereby consents, on behalf of itself and the Group Companies, to the use of the logos of the Group Companies in connection with the Debt Financing; provided that such logos are used solely in a manner that is not intended to, nor is reasonably likely to, harm or disparage the Company’s or any of its Affiliates’ reputation or goodwill.
8.11.2. Notwithstanding anything in this Agreement to the contrary, (a) no Group Company nor any of their respective Representatives shall be required, under the provisions of this Section 8.11 or otherwise in connection with the Debt Financing, to pay any commitment or other similar fee or enter into any binding agreement (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) or commitment or incur any other actual or potential liability or obligation in connection with the Debt Financing prior to the Closing that is not advanced by Buyer, (b) no Group Company or any of their respective Representatives, managers, officers or employees shall be required to execute or enter into, perform or authorize any agreement with respect to the Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) that is not contingent upon the Closing or that would be effective prior to the Closing Date, (c) no Representative, manager, officer or employee of any Group Company shall be required to deliver any certificate or take any other action pursuant to this Section 8.11 to the extent any such action would reasonably be expected to result in personal liability to such Representative, manager, officer or employee, (d) no Group Company or their respective Representatives shall be required to take any action that would reasonably be expected, in the reasonable judgment of the Company, to conflict with, or result in any violation or breach of, any applicable Laws, any organizational documents of any Group Company, any contract or obligations of confidentiality (not created in contemplation hereof) binding on any Group Company, (e) no Group Company or any of their respective Representatives shall be required to take any action that would cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement, (f) no Group Company or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, the Company has, in its good faith, determined is not true, (g) no Group Companies or their respective Representatives shall be required to provide, and the Buyer will be solely responsible for the preparation of: (1) pro forma financial information; (2) any description of all or any component of the Debt Financing; or (3) projections, risk factors or other forward-looking statements relating to all or any component of the Debt Financing; and (h) no Group Company shall be required to provide access to or disclose information that the Company determines would jeopardize any attorney–client privilege or other similar privilege of the Company or any of its Subsidiaries. Promptly upon request by the CompanySellers, Xxxxx will reimburse the Company Sellers for any all reasonable and documented out of pocket costs and expenses (including reasonable attorneys’ fees) incurred by the Company, the Company Subsidiaries Sellers or any of their respective Representatives in connection with the cooperation of the Companytheir respective obligations pursuant to, the Company Subsidiaries and their Representatives contemplated by in accordance with, this Section 8.11. Except in the case of fraud or a breach of this Agreement6.9, Buyer and shall indemnify, defend, indemnify and hold harmless the Group Sellers, the Acquired Companies and their Subsidiaries and their respective Representatives from and against any and all losses, damages, awards, fines, penalties, expenses, feeslosses, costs, actions, demands, judgment, Taxes, fines, fees, liabilities or expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecution, investigation, defense or settlement of any of the foregoing) and other amounts suffered or incurred by any of them in connection with (i) the consummation of the Equity Offering and any action taken by them at the request of Buyer pursuant to this Section 8.11 or information used in connection with therewith (other than information provided by the arrangement of the Debt Financing or (ii) any information utilized in connection therewith, and the foregoing obligations shall survive termination of this Agreement and the occurrence of the Closing. In addition, no action, liability or obligation of the CompanySellers, any of the Company Subsidiaries Acquired Companies or any of their Subsidiaries) and all other actions taken by the Sellers, the Acquired Companies and their Subsidiaries and their respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to any Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) will be effective until the Closing Date. All material, non-public information regarding the Group Companies provided to Buyer or any of its Representatives pursuant to this Section 8.11 shall be kept confidential by them in accordance with the Confidentiality Agreement except for disclosure to potential investors as required in connection with the Debt Financing subject to customary confidentiality protections. Notwithstanding anything to the contrary, the Company shall be deemed to have complied with this Section 8.11 for all purposes of this Agreement (including Article 6 and Article 7) unless the Debt Financing has not been obtained primarily as a result of the Company’s Willful Breach of its obligations under this Section 8.11. Notwithstanding anything herein to the contrary, Xxxxx acknowledges and agrees that obtaining any Debt Financing is not a condition to the Closing6.9.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Campus Crest Communities, Inc.)
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (xa) provide Seller and the Company with written notice that such Debt Financing has been obtained and (y) deliver (or cause to be delivered) to Seller and the Company true, correct and complete copies of all arrangements pursuant to which any Financing Parties shall have committed to provide any portion of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further that, in no event shall the receipt of such Debt Financing be a condition to Closing and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. Prior to the Closing, subject to Section 8.11.2, the Company Seller shall use its reasonable best efforts toefforts, and Seller shall cause its controlled Affiliates to use their reasonable best efforts to cause provide, to the Company Subsidiaries and extent within its and their respective Representatives tocontrol, in each case Purchaser, such customary cooperation reasonably requested by Purchaser, at BuyerPurchaser’s sole expense, provide to Buyer such cooperation reasonably requested by Buyer that is reasonably necessary in arranging, obtaining and syndicating the Debt Financing, if any (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the operations of the Group Companies), including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies as may be reasonably requested by Buyer for the completion of the Debt Financing, (b) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies in connection with the Debt Financing to the extent reasonable and customary for financings of (provided, however, that such type, (c) reasonably assisting in the preparation of (i) customary bank information memoranda, lender and investor presentations, offering documents, offering or private placement memoranda and other similar marketing documents and due diligence efforts for the Debt Financing and (ii) customary authorization and representation letters, each as required in connection requests shall not unreasonably interfere with the Debt Financing, authorizing the distribution of information to prospective lenders and containing a representation that the public side of such documents, if any, do not include any information about any Group Company or any securities of any Group Company that would constitute material non-public information within the meaning ongoing operations of the United States federal and state securities laws if any Group Company were a public reporting companySeller Group), (d) including using their reasonable best efforts to cause take the Company’s independent registered accounting firm to provide customary assistance, including following actions: (i) providing furnish customary comfort letters (including “negative assurance comfort” and “change period comfort”) in connection with any capital markets transaction comprising a part of the Debt Financing, (ii) providing customary consents to the inclusion of their audit report in respect of any financial statements of the Company and the Company Subsidiaries in any offering documents relating to the Debt Financing and (iii) reasonable assistance and cooperation to Buyer with respect to any auditor due diligence, (e) subject to and conditioned on the occurrence of the Closing, the taking of customary corporate actions reasonably necessary to permit the consummation of and funding of the Debt Financing, (f) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth in any definitive document relating to the Debt Financing to the extent satisfaction of such condition requires the cooperation of, or is within the control of, the Group Companies, (g) delivering to Buyer at least three (3) Business Days prior to the Closing all such documentation and information as is reasonably requested in writing by Buyer at least ten (10) Business Days prior Purchaser to the Closing enable Purchaser to the extent required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act and the requirements of 31 C.F.R. §1010.230, (h) facilitating and assisting in the preparation and delivery of any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents relating to the Debt Financing relating to the Group Companies, and their respective businesses to be included in the definitive documents relating to the Debt Financing, and assist with the execution and delivery of the sameprepare pro forma financial statements, in each case, solely to the extent customary and reasonably required pursuant to such Debt Financing and to the extent reasonably available; (ii) cause the PP&S Business’ and the Seller Group’s management teams, with appropriate seniority and expertise, at reasonable times and customary for financings upon reasonable notice, to participate in a limited number of such typemeetings, (i) cooperating with internal conference calls, drafting sessions, due diligence sessions and external counsel of Buyer in connection with providing customary back-up certificates similar presentations to and factual information regarding any legal opinion that such counsel may be required to deliver in connection with the Debt Financing, in each case, solely to the extent reasonable Financing Sources and customary for financings of such type, and rating agencies; (jiii)(A) obtaining and providing documents to Buyer (including draft payoff letters) relating to the repayment of the Indebtedness and the release of related guarantees and Liens in accordance assist with the terms preparation of this Agreement. The Company hereby consentscustomary rating agency presentations, on behalf of itself bank information memoranda and other customary marketing and syndication materials required or reasonably requested by the Group Companies, to the use of the logos of the Group Companies Debt Financing Sources in connection with the Debt Financing; provided provided, however, that any such customary marketing and syndication materials shall contain disclosure and pro forma financial statements reflecting Purchaser as the obligor; and (B) execute and deliver customary authorization letters relating to the Debt Financing; (iv) obtain any required release letters and any related Lien releases, terminations and instruments of discharge; and (v) assist with obtaining customary insurance certificates. Subject to Purchaser’s indemnification obligations under this Section 5.10, Seller hereby consents to the use of the PP&S Business’ and the Seller Group’s logos in connection with the Debt Financing; provided, however, that such logos are used solely in a manner that is not intended toneither intended, nor is reasonably likely tolikely, to harm or disparage the CompanySeller Group or the reputation or goodwill of the Seller Group and its respective marks.
(b) Purchaser shall (i) promptly upon Seller’s or request reimburse Seller for all of the reasonable and documented out-of-pocket costs and expenses (including attorneys’ fees) incurred by Seller and any of its AffiliatesAffiliates and Representatives in connection with any cooperation requested by Purchaser pursuant to this Section 5.10 and (ii) indemnify and hold harmless Seller and any of its Affiliates and Representatives from and against all claims, losses, damages, injuries, liabilities, judgments, awards, penalties, fines, Taxes, costs (including cost of investigation), expenses (including documented out-of-pocket attorneys’ reputation fees) or goodwillsettlement payments suffered or incurred by any of them in connection with (x) the arrangement of the Financing and any information used in connection therewith, including providing the cooperation contemplated by this Section 5.10 (other than historical information relating to the Seller Group provided by Seller or its controlled Affiliates in writing specifically for use in the marketing material) and (y) any use of the logos or marks of the Seller Group that does not comply with the last sentence of Section 5.10(a).
8.11.2. (c) Notwithstanding anything in this Agreement to the contrarycontrary (including this Section 5.10), (a) no Group Company neither the Seller nor any of their its respective Affiliates or Representatives shall (i) be required, under the provisions of this Section 8.11 or otherwise in connection with the Debt Financing, required to pay any commitment or other similar fee or enter into reimburse any binding agreement (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) or commitment or incur any other actual or potential liability or obligation expenses in connection with the Debt Financing prior to the Closing that is not advanced by Buyer, Closing; (bii) no Group Company or any of their respective Representatives, managers, officers or employees shall be required to execute incur any liability or enter into, perform or authorize give any agreement indemnity in connection with respect to the Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) that is not contingent upon the Closing or that would be effective prior to the Closing DateClosing, (c) no Representative, manager, officer or employee other than in respect of any Group Company shall be required to deliver any certificate or take any other action expenses reimbursable pursuant to this Section 8.11 to the extent any such action would reasonably be expected to result in personal liability to such Representative, manager, officer or employee, Agreement; (diii) no Group Company or their respective Representatives shall be required to take any action that would reasonably be expectedrequire any director, in the reasonable judgment officer or employee of the Company, Seller Group to conflict withexecute, or result in any violation or breach ofbe required to enter into, any applicable Lawsdocument, agreement, certificate or instrument (other than with respect to any organizational documents of any Group Company, any contract authorization letter described in this Section 5.10) in connection with the Financing except as may be effective at or obligations of confidentiality after the Closing; (not created in contemplation hereofiv) binding on any Group Company, (e) no Group Company or any of their respective Representatives shall be required to take any action in connection with the Financing that would unreasonably interfere with the ongoing business or operation of Seller or any of its respective Affiliates or Representatives; (v) cause any condition director, officer or employee of the Seller Group to incur any personal liability in connection with the Financing; (vi) provide in connection with the Debt Financing any information the disclosure of which is prohibited or restricted - 75 - under Law or is legally privileged; (vii) with respect to the pre-Closing board of directors of the Seller and the directors, managers and general partners of the Seller’s controlled Affiliates, be required to adopt resolutions approving the agreements, documents and instruments pursuant to which the Debt Financing is obtained except as may be effective at or after the Closing; (viii) be required to take any corporate actions prior to the Closing set forth herein to not be satisfied permit the consummation of the Debt Financing; or otherwise cause any breach of this Agreement, (fix) no Group Company or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, the Company has, in its good faith, determined is not true, (g) no Group Companies or their respective Representatives shall be required to provide, and the Buyer will Purchaser shall be solely responsible for the preparation of: for, (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; , including any such description to be included in any liquidity or capital resources disclosure, (3) projections, risk factors projections or other forward-looking statements relating to all or any component of the Debt Financing; and , (h4) no Group Company shall be required to provide access to subsidiary financial statements or disclose any other information that the Company determines would jeopardize any attorney–client privilege or other similar privilege of the Company type required by Rule 3-09, Rule 3-10 or any Rule 3-16 of its Subsidiaries. Promptly upon request Regulation S-X, (5) Compensation Disclosure and Analysis required by the CompanyItem 402(b) of Regulation S-K, Xxxxx will reimburse the Company for any reasonable costs and expenses or (including reasonable attorneys’ fees) incurred by the Company, the Company Subsidiaries or any of their Representatives in connection with the cooperation of the Company, the Company Subsidiaries and their Representatives contemplated by this Section 8.11. Except in the case of fraud or a breach of this Agreement, Buyer shall indemnify, defend, and hold harmless the Group Companies and their respective Representatives from and against any and all losses, damages, awards, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecution, investigation, defense or settlement of any of the foregoing) and other amounts suffered or incurred by them in connection with (i6) any action taken by them at the request of Buyer pursuant to this Section 8.11 solvency certificate or in connection with the arrangement of the Debt Financing similar certification or representation.
(iid) any information utilized in connection therewith, and the foregoing obligations shall survive termination of this Agreement and the occurrence of the Closing. In addition, no action, liability or obligation of the Company, any of the Company Subsidiaries or any of their respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to any Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) will be effective until the Closing Date. All material, non-public information regarding the Group Companies provided to Buyer or any of its Representatives pursuant to this Section 8.11 shall be kept confidential by them in accordance with the Confidentiality Agreement except for disclosure to potential investors as required in connection with the Debt Financing subject to customary confidentiality protections. Notwithstanding anything to the contrarycontrary in this Agreement, the Company condition set forth in Section 5.10, as it applies to Seller’s obligation under this Section 5.10, shall be deemed to have complied with this Section 8.11 for all purposes of this Agreement (including Article 6 satisfied unless Seller has knowingly and Article 7) unless the Debt Financing has not been obtained primarily as a result of the Company’s Willful Breach of willfully materially breached its obligations under this Section 8.11. Notwithstanding anything herein to 5.10 and such breach has been the contrary, Xxxxx acknowledges and agrees that obtaining any primary cause of the Debt Financing is not a condition to the Closingbeing obtained.
Appears in 1 contract
Financing Cooperation. 8.11.1. (a) Seller shall use commercially reasonable efforts, and shall cause its Subsidiaries and the Business to use commercially reasonable efforts, to provide such cooperation in connection with the arrangement of the Financing as is reasonably requested by Buyer, including using commercially reasonably efforts to:
(i) furnish Buyer may determinewith (A) such financial information set forth in item 3(b) of Exhibit B to the Debt Commitment Letter, (together with assistance in facilitating the delivery of necessary and customary comfort letters from the Business’s accountants, as reasonably requested by Buyer) and (B) subject to the second sentence in the last paragraph of this clause (a), financial information as reasonably requested by Buyer to enable Buyer to prepare customary pro forma financial statements (it being understood that such assistance shall relate solely to the financial information derived from historical books and records of the Seller), in its sole discretioneach case, to obtain debt financing the extent customary and reasonably required pursuant to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained and to the extent reasonably available;
(xii) provide Seller cause the Business’s management team, with appropriate seniority and expertise, at reasonable times and upon reasonable notice, to participate in a reasonable number of meetings, conference calls, drafting sessions, due diligence sessions and similar presentations to and with the Company with written notice that such current or potential providers of the Debt Financing has been obtained and rating agencies;
(yiii) deliver (A) assist with the preparation of customary rating agency presentations, bank information memoranda and road show presentations, required or cause to be delivered) to Seller and reasonably requested by the Company true, correct and complete copies of all arrangements pursuant to which any Debt Financing Parties shall have committed to provide any portion of Sources in connection with the Debt Financing; provided that any fee such materials shall contain disclosure and pro forma financial statements reflecting Buyer as the obligor and (B) execute and deliver customary authorization letters may be redacted in a customary manner; provided further that, in no event shall the receipt of such Debt Financing be a condition relating to Closing and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. Prior to the Closing, subject to Section 8.11.2, the Company shall use reasonable best efforts to, and shall use reasonable best efforts to cause the Company Subsidiaries and its and their respective Representatives to, in each case at Buyer’s sole expense, provide to Buyer such cooperation reasonably requested by Buyer that is reasonably necessary in arranging, obtaining and syndicating the Debt Financing, if any (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the operations of the Group Companies), including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies as may be reasonably requested by Buyer for the completion of the Debt Financing, (b) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies in connection with the Debt Financing to regarding the extent reasonable and customary for financings presence or absence of such type, (c) reasonably assisting in the preparation of (i) customary bank information memoranda, lender and investor presentations, offering documents, offering or private placement memoranda and other similar marketing documents and due diligence efforts for the Debt Financing and (ii) customary authorization and representation letters, each as required in connection with the Debt Financing, authorizing the distribution of information to prospective lenders and containing a representation that the public side of such documents, if any, do not include any information about any Group Company or any securities of any Group Company that would constitute material non-public information within about the meaning Seller or the accuracy of the United States federal information provided by, or with respect to, the Seller;
(iv) (A) assist in the preparation of definitive financing documentation and state securities laws if any Group Company were a public reporting company, (d) using reasonable best efforts to cause the Company’s independent registered accounting firm to provide customary assistance, including (i) providing customary comfort letters schedules and exhibits thereto (including “negative assurance comfort” loan agreements, guarantees, collateral agreements, and “change period comfort”customary officer’s, solvency and other closing certificates) as may reasonably be requested (with respect to any certificates, to the extent the officer requested to execute the same is an employee of the Business performing an equivalent function immediately following the Closing) and (B) facilitate the pledging of collateral and the release of existing liens (including customary evidence of the release and termination of liens), in connection with any capital markets transaction comprising a part case, if any, on Seller’s (or any of its Subsidiaries’) assets, it being understood that such documents will not take effect until the Closing, and in each case, to the extent required at Closing by the terms of the Debt Financing, ; and
(iiv) providing customary consents to the inclusion of their audit report in respect of any financial statements of the Company and the Company Subsidiaries in any offering documents relating to the Debt Financing and (iii) reasonable assistance and cooperation to furnish Buyer with respect to any auditor due diligence, (e) subject to and conditioned on the occurrence of the Closing, the taking of customary corporate actions reasonably necessary to permit the consummation of and funding of the Debt Financing, (f) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth in any definitive document relating to the Debt Financing to the extent satisfaction of such condition requires the cooperation of, or is within the control of, the Group Companies, (g) delivering to Buyer at least three (3) Business Days prior to the Closing all such documentation and other information as is reasonably requested in writing by Buyer at least ten (10) Business Days prior to the Closing to the extent required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, as amended, that has been reasonably requested by Buyer in writing at least ten (10) Business Days prior to the Closing. Notwithstanding the foregoing, Seller and the requirements of 31 C.F.R. §1010.230Business shall in no event be required to (i) provide any assistance that shall unreasonably interfere with its business operations, (hii) facilitating waive or amend any terms of this Agreement or agree to pay any fees or reimburse any expenses prior to the Closing Date for which it has not received prior reimbursement or is not otherwise indemnified by or on behalf of Buyer, (iii) provide any information the disclosure of which is prohibited or restricted under applicable Law or is Privileged Information, (iv) 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 Contract to which Seller or any of its Subsidiaries is a party, (v) cause any representation or warranty in this Agreement to be breached or become inaccurate, or (vi) provide, or be required to cause the Business’s accountants to provide, any audited financial statements relating to the Business, except that if Buyer requests an audit of the financial information which has been provided prior to the Original Date, or requests a different standard of accounting review, or requests a review that covers one or more different periods, in each case relating to the financial information which has been provided prior to the Original Date, Seller agrees to consider, in consultation with its accountants and assisting in other Representatives, whether such information can be provided using reasonable efforts, and shall communicate to Buyer its determination, and all of the foregoing (together with the preparation and delivery of any credit agreementssupplemental financial information provided, indenturesif any) shall be at Buyer’s expense; it being understood, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates for the avoidance of doubt under this clause (vi) that: (A) any such audit or other definitive documents relating supplemental information will not be expected, in any circumstance, to be available prior to Closing, (B) neither Seller nor its accountants nor any of its other Representatives shall be obligated to provide any such information, and (C) the obtaining of any such information shall not be a condition to Closing. In addition, Buyer solely shall be responsible for, in respect of the Financing or otherwise, provision of any pro forma financial information, including cost savings, synergies, capitalization, ownership, or other pro forma adjustments and any financial projections of Buyer or the assets, Equity Interests and properties being acquired hereunder. Nothing in this Agreement will require (A) any Representative of Seller or any of its Subsidiaries to take any action that could reasonably be expected to result in personal Liability to such Representative, or (B) the members of the board of directors (or other governing body) of Seller or any of its Subsidiaries as of the Original Date to approve any financing or Contracts related thereto.
(b) Buyer shall indemnify and hold harmless Seller and its Subsidiaries, and each of their respective directors, officers, employees, agents and other Representatives from and against any and all Liabilities suffered or incurred in connection with the Financing or any assistance or activities provided in connection therewith. Buyer shall promptly reimburse Seller and its Subsidiaries for all documented internally allocated costs and out-of-pocket third party costs (including, for the avoidance of doubt, all monitoring, consulting and advisory costs) incurred by Seller or any of its Subsidiaries in connection with such cooperation.
(c) Notwithstanding anything to the contrary herein, it is understood and agreed that the condition precedent set forth in Section 8.02(b), as applied to Seller’s obligations under this Section 5.19, shall be deemed to be satisfied unless the Financing has not been obtained as a direct result of Seller’s willful and material breach of its obligations under this Section 5.19. Buyer acknowledges and agrees that obtaining the Financing is not a condition to Closing. None of Seller nor any of its Subsidiaries shall have any obligations under this Section 5.19 following the consummation of the transactions contemplated hereby.
(d) All non-public or other confidential information provided by Seller or any of its Representatives pursuant to this Agreement will be kept confidential in accordance with the Confidentiality Agreement, except that Buyer will be permitted to disclose such information to the Financing Sources or prospective financing sources and other financial institutions and investors that are or may become parties to the Debt Financing relating and to the Group Companiesany underwriters, and their respective businesses to be included initial purchasers or placement agents in the definitive documents relating to the Debt Financing, and assist connection with the execution and delivery of the sameEquity Financing (and, in each case, solely to the extent reasonable their respective counsel and customary for financings of auditors) so long as such type, persons (i) cooperating with internal agree to be bound by the Confidentiality Agreement as if parties thereto, or (ii) are subject to other confidentiality undertakings reasonably satisfactory to Seller and external counsel of Buyer in connection with providing customary back-up certificates and factual information regarding any legal opinion that such counsel may be required which Seller is a beneficiary.
(e) Subject to deliver in connection with the Debt FinancingBuyer’s indemnification obligations under Section 5.19(b), in each case, solely Seller hereby consents to the extent reasonable and customary for financings of such type, and (j) obtaining and providing documents to Buyer (including draft payoff letters) relating to the repayment of the Indebtedness and the release of related guarantees and Liens in accordance with the terms of this Agreement. The Company hereby consents, on behalf of itself and the Group Companies, to the use of the Business’s logos of the Group Companies solely in connection with the Debt Financing; provided provided, however, that such logos are used solely in a manner that is not intended toneither intended, nor is reasonably likely tolikely, to harm or disparage the Company’s Seller or any of its Affiliates’ Subsidiaries or the reputation or goodwill.
8.11.2. Notwithstanding anything in this Agreement to the contrary, (a) no Group Company nor any goodwill of their respective Representatives shall be required, under the provisions of this Section 8.11 or otherwise in connection with the Debt Financing, to pay any commitment or other similar fee or enter into any binding agreement (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) or commitment or incur any other actual or potential liability or obligation in connection with the Debt Financing prior to the Closing that is not advanced by Buyer, (b) no Group Company or any of their respective Representatives, managers, officers or employees shall be required to execute or enter into, perform or authorize any agreement with respect to the Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) that is not contingent upon the Closing or that would be effective prior to the Closing Date, (c) no Representative, manager, officer or employee of any Group Company shall be required to deliver any certificate or take any other action pursuant to this Section 8.11 to the extent any such action would reasonably be expected to result in personal liability to such Representative, manager, officer or employee, (d) no Group Company or their respective Representatives shall be required to take any action that would reasonably be expected, in the reasonable judgment of the Company, to conflict with, or result in any violation or breach of, any applicable Laws, any organizational documents of any Group Company, any contract or obligations of confidentiality (not created in contemplation hereof) binding on any Group Company, (e) no Group Company or any of their respective Representatives shall be required to take any action that would cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement, (f) no Group Company or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, the Company has, in its good faith, determined is not true, (g) no Group Companies or their respective Representatives shall be required to provide, and the Buyer will be solely responsible for the preparation of: (1) pro forma financial information; (2) any description of all or any component of the Debt Financing; or (3) projections, risk factors or other forward-looking statements relating to all or any component of the Debt Financing; and (h) no Group Company shall be required to provide access to or disclose information that the Company determines would jeopardize any attorney–client privilege or other similar privilege of the Company Seller or any of its Subsidiaries. Promptly upon request by the Company, Xxxxx will reimburse the Company for any reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Company, the Company Subsidiaries or any of their Representatives in connection with the cooperation of the Company, the Company Subsidiaries and their Representatives contemplated by this Section 8.11. Except in the case of fraud or a breach of this Agreement, Buyer shall indemnify, defend, and hold harmless the Group Companies and their respective Representatives from and against any and all losses, damages, awards, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecution, investigation, defense or settlement of any of the foregoing) and other amounts suffered or incurred by them in connection with (i) any action taken by them at the request of Buyer pursuant to this Section 8.11 or in connection with the arrangement of the Debt Financing or (ii) any information utilized in connection therewith, and the foregoing obligations shall survive termination of this Agreement and the occurrence of the Closing. In addition, no action, liability or obligation of the Company, any of the Company Subsidiaries or any of their respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to any Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) will be effective until the Closing Date. All material, non-public information regarding the Group Companies provided to Buyer or any of its Representatives pursuant to this Section 8.11 shall be kept confidential by them in accordance with the Confidentiality Agreement except for disclosure to potential investors as required in connection with the Debt Financing subject to customary confidentiality protections. Notwithstanding anything to the contrary, the Company shall be deemed to have complied with this Section 8.11 for all purposes of this Agreement (including Article 6 and Article 7) unless the Debt Financing has not been obtained primarily as a result of the Company’s Willful Breach of its obligations under this Section 8.11. Notwithstanding anything herein to the contrary, Xxxxx acknowledges and agrees that obtaining any Debt Financing is not a condition to the Closingmarks.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Jacobs Engineering Group Inc /De/)
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (x) provide Seller and the Company with written notice that such Debt Financing has been obtained and (y) deliver (or cause to be delivered) to Seller and the Company true, correct and complete copies of all arrangements pursuant to which any Financing Parties The Sellers shall have committed to provide any portion of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further that, in no event shall the receipt of such Debt Financing be a condition to Closing and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. Prior to the Closing, subject to Section 8.11.2, the Company shall use reasonable best efforts toprovide, and shall use reasonable best efforts to cause the Company Companies, Subsidiaries and its and shall request their respective Representatives torepresentatives (including legal and accounting advisors) to provide, in each case at Buyer’s sole expensecost, provide commercially reasonable cooperation in connection with the arrangement of any financing to Buyer such cooperation reasonably requested be obtained by Buyer that is reasonably necessary in arranging, obtaining and syndicating connection with the Debt Financing, if any (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the operations of the Group Companies), Financing including as promptly as reasonably practical, (a) furnishing Buyer participation in meetings, presentations, road shows, due diligence sessions and sessions with rating agencies; (b) assisting with the Required Financial Information preparation of materials for rating agency presentations, offering documents, private placement memoranda and bank financing; (c) executing and delivering any credit, pledge and security documents, other pertinent information regarding the Group Companies definitive financing documents, or other certificates, legal opinions or documents as may be reasonably requested by Buyer (including a certificate of the chief financial officer of the Companies and Subsidiaries with respect to solvency matters and consents of accountants for the completion use of their reports in any materials relating to the Debt Financing, (b) participating in telephonic meetings and otherwise reasonably assisting facilitating the pledging of collateral (provided that no such pledge or security documents shall be effective until the Closing); (d) furnishing Buyer and its financing sources as promptly as practicable with financial and other pertinent information regarding the Companies and Subsidiaries as may be reasonably requested by Buyer so as to allow Buyer to arrange for the preparation of appropriate such reports and customary materials customary presentations, due diligence sessions resolutions from the Board of Directors of each U.K. Entity as may be required under Sections 155 to 158 (including accounting due diligence sessionsinclusive) and sessions of the UK Companies Xxx 0000 (UK) with rating agencies in connection with the Debt Financing respect to the extent reasonable and customary for financings giving by any UK Entity of such type, (c) reasonably assisting in the preparation of (i) customary bank information memoranda, lender and investor presentations, offering documents, offering or private placement memoranda and other similar marketing documents and due diligence efforts for the Debt Financing and (ii) customary authorization and representation letters, each as required financial assistance in connection with the Debt Financing, authorizing the distribution of information to prospective lenders and containing a representation that the public side of such documents, if any, do not include any information about any Group Company or any securities of any Group Company that would constitute material non-public information within the meaning of the United States federal and state securities laws if any Group Company were a public reporting company, ; (d) using reasonable best efforts requesting the auditor (the “Financial Assistance Auditor”) of any UK Entity referred to cause in the Company’s independent registered accounting firm preceding sub-Section (c) to provide customary assistancesuch accountants’ letters and reports as may be required for such purpose, including (i) providing customary subject to the provision, to the reasonable satisfaction of such Financial Assistant Auditor, of comfort letters (including “negative assurance comfort” and “change period comfort”) in connection with any capital markets transaction comprising a part regarding the future solvency of the Debt Financing, (ii) providing customary consents to the inclusion of their audit report in respect of any financial statements of the Company relevant UK Entities; and the Company Subsidiaries in any offering documents relating to the Debt Financing and (iii) reasonable assistance and cooperation to Buyer with respect to any auditor due diligence, (e) subject to and conditioned on the occurrence of the Closing, the taking of customary corporate such other actions reasonably necessary to permit the consummation of and funding of the Debt Financing, (f) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth in any definitive document relating to the Debt Financing to the extent satisfaction of such condition requires the cooperation of, or is within the control of, the Group Companies, (g) delivering to Buyer at least three (3) Business Days prior to the Closing all such documentation and information as is may be reasonably requested in writing by Buyer at least ten (10) Business Days prior to the Closing to the extent required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act and the requirements of 31 C.F.R. §1010.230, (h) facilitating and assisting in the preparation and delivery of any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents relating to the Debt Financing relating to the Group Companies, and their respective businesses to be included in the definitive documents relating to the Debt Financing, and assist with the execution and delivery of the same, in each case, solely to the extent reasonable and customary for financings of such type, (i) cooperating with internal and external counsel of Buyer 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 Debt Financing, in each case, solely to the extent reasonable and customary for financings of such type, and (j) obtaining and providing documents to Buyer (including draft payoff letters) relating to the repayment of the Indebtedness and the release of related guarantees and Liens in accordance with the terms of this Agreementtherewith. The Company Sellers hereby consents, on behalf of itself and the Group Companies, consent to the use of the Companies’ and Subsidiaries’ logos of the Group Companies in connection with the Debt Financing; provided that such logos are used solely in a manner that is not intended to, to nor is reasonably likely to, to harm or disparage the Company’s Companies or Subsidiaries or the reputation or goodwill of the Companies or Subsidiaries and their marks. Notwithstanding the foregoing, to the extent a U.K. Entity is required to provide a resolution from its Board of Directors with respect to the Debt Financing or to the extent such UK Entity or any of its Affiliates’ reputation or goodwill.
8.11.2. Notwithstanding anything in this Agreement directors is required to the contrary, (a) no Group Company nor execute any of their respective Representatives shall be required, under the provisions of this Section 8.11 or otherwise in connection with the Debt Financing, to pay any commitment or other similar fee or enter into any binding agreement (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) or commitment or incur any other actual or potential liability or obligation document in connection with the Debt Financing prior to the Closing that is not advanced by Buyer, (b) no Group Company or any of their respective Representatives, managers, officers or employees such resolutions shall be required to execute or enter into, perform or authorize any agreement with respect to approved by the Debt Financing (other than Board of Directors of such U.K. Entity comprised solely of members appointed by the execution of Buyer and no director appointed by the authorization letters referred to in clause (c)(ii) of Section 8.11.1) that is not contingent upon the Closing or that would be effective prior to the Closing Date, (c) no Representative, manager, officer or employee of any Group Company Sellers shall be required obliged to deliver any certificate or take any other action pursuant to this Section 8.11 to the extent sign any such action would reasonably be expected to result in personal liability to document for such Representative, manager, officer or employee, (d) no Group Company or their respective Representatives shall be required to take any action that would reasonably be expected, in the reasonable judgment of the Company, to conflict with, or result in any violation or breach of, any applicable Laws, any organizational documents of any Group Company, any contract or obligations of confidentiality (not created in contemplation hereof) binding on any Group Company, (e) no Group Company or any of their respective Representatives shall be required to take any action that would cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement, (f) no Group Company or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, the Company has, in its good faith, determined is not true, (g) no Group Companies or their respective Representatives shall be required to provide, and the Buyer will be solely responsible for the preparation of: (1) pro forma financial information; (2) any description of all or any component of the Debt Financing; or (3) projections, risk factors or other forward-looking statements relating to all or any component of the Debt Financing; and (h) no Group Company shall be required to provide access to or disclose information that the Company determines would jeopardize any attorney–client privilege or other similar privilege of the Company or any of its Subsidiaries. Promptly upon request by the Company, Xxxxx will reimburse the Company for any reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Company, the Company Subsidiaries or any of their Representatives in connection with the cooperation of the Company, the Company Subsidiaries and their Representatives contemplated by this Section 8.11. Except in the case of fraud or a breach of this Agreement, Buyer shall indemnify, defend, and hold harmless the Group Companies and their respective Representatives from and against any and all losses, damages, awards, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecution, investigation, defense or settlement of any of the foregoing) and other amounts suffered or incurred by them in connection with (i) any action taken by them at the request of Buyer pursuant to this Section 8.11 or in connection with the arrangement of the Debt Financing or (ii) any information utilized in connection therewith, and the foregoing obligations shall survive termination of this Agreement and the occurrence of the Closing. In addition, no action, liability or obligation of the Company, any of the Company Subsidiaries or any of their respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to any Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) will be effective until the Closing Date. All material, non-public information regarding the Group Companies provided to Buyer or any of its Representatives pursuant to this Section 8.11 shall be kept confidential by them in accordance with the Confidentiality Agreement except for disclosure to potential investors as required in connection with the Debt Financing subject to customary confidentiality protections. Notwithstanding anything to the contrary, the Company shall be deemed to have complied with this Section 8.11 for all purposes of this Agreement (including Article 6 and Article 7) unless the Debt Financing has not been obtained primarily as a result of the Company’s Willful Breach of its obligations under this Section 8.11. Notwithstanding anything herein to the contrary, Xxxxx acknowledges and agrees that obtaining any Debt Financing is not a condition to the Closingpurpose.
Appears in 1 contract
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion (a) From the Execution Date until the Closing or the earlier termination of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (x) provide Seller and the Company with written notice that such Debt Financing has been obtained and (y) deliver (or cause to be delivered) to Seller and the Company true, correct and complete copies of all arrangements pursuant to which any Financing Parties shall have committed to provide any portion of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further that, in no event shall the receipt of such Debt Financing be a condition to Closing and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. Prior to the ClosingAgreement, subject to the limitations in Section 8.11.27.13(c), each Contributor Party shall, and shall cause the Company shall use reasonable best efforts to, and shall use reasonable best efforts to cause the Company Subsidiaries and its and their respective Representatives to, in each case at BuyerAcquiror’s sole expensecost and expense and at the Acquiror’s reasonable request, provide to Buyer such cooperation reasonably requested by Buyer that is reasonably necessary cooperate in arranging, obtaining good faith with Acquiror Parent and syndicating the Debt Financing, if any (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere Acquiror in connection with the operations arrangement of any financing by Acquiror Parent or Acquiror in connection with the Group CompaniesTransactions (the “Financing”), including . Such cooperation shall include (i) providing Acquiror Parent and Acquiror with the Financing Information as promptly as reasonably practicalpracticable; (ii) instructing the Company’s senior officers with appropriate expertise, at reasonable times and upon reasonable notice, to participate in (aincluding by preparing for) a reasonable number of bank meetings, due diligence sessions and similar presentations to and with prospective lenders and rating agencies by conference call; (iii) assisting with the preparation of customary materials for rating agency presentations, bank information memoranda and other customary marketing and syndication materials necessary or appropriate in connection with the Financing; (iv) furnishing Buyer Acquiror Parent and Acquiror and its Financing Sources with any reasonably requested financial information available to the Contributor Parties or the Company or which can be prepared by the Contributor Parties or the Company without undue burden; (v) cooperating with the Required Financial Information Financing Sources’ reasonable due diligence investigation and evaluation of the Company Assets for necessary, appropriate and customary purposes; (vi) reasonably facilitating the pledging of collateral and execution and delivery of definitive pledge and security documents and other pertinent information regarding the Group Companies financing documents or other certificates or documents as may be reasonably requested by Buyer for Acquiror Parent, Acquiror or the completion Financing Sources to consummate the Financing; (vii) cooperating (including by delivering customary management letters of representation) to obtain “comfort” letters and “consents” of the Debt Financing, Company’s independent auditors to the extent reasonably requested; (bviii) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentationsdefinitive financing documentation, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies in connection with the Debt Financing to the extent reasonable and customary for financings of such typeagreements, (c) reasonably assisting in the preparation of (i) customary bank information offering memoranda, lender prospectuses and investor presentations, offering documents, offering or private placement memoranda the schedules and other similar marketing documents exhibits thereto; (ix) delivering drafts of Payoff Letters to Acquiror Parent and due diligence efforts for the Debt Financing Acquiror a reasonable period of time prior to Closing; and (ii) customary authorization and representation letters, each as required in connection with the Debt Financing, authorizing the distribution of information to prospective lenders and containing a representation that the public side of such documents, if any, do not include any information about any Group Company or any securities of any Group Company that would constitute material non-public information within the meaning of the United States federal and state securities laws if any Group Company were a public reporting company, (d) using reasonable best efforts to cause the Company’s independent registered accounting firm to provide customary assistance, including (ix) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) in connection with any capital markets transaction comprising a part of the Debt Financingto Acquiror Parent, (ii) providing customary consents to the inclusion of their audit report in respect of any financial statements of the Company Acquiror and the Company Subsidiaries in any offering documents relating to the Debt Financing and (iii) reasonable assistance and cooperation to Buyer with respect to any auditor due diligence, (e) subject to and conditioned on the occurrence of the Closing, the taking of customary corporate actions reasonably necessary to permit the consummation of and funding of the Debt Financing, (f) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth in any definitive document relating to the Debt Financing to the extent satisfaction of such condition requires the cooperation of, or is within the control of, the Group Companies, (g) delivering to Buyer Sources at least three five (35) Business Days prior to the Closing Date all such documentation and other information as is reasonably requested in writing by Buyer at least ten (10) Business Days prior to the Closing to the extent required by U.S. regulatory authorities under applicable “beneficial ownership,” “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act and the requirements of 31 C.F.R. §1010.230, (h) facilitating and assisting in the preparation and delivery of any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents relating Act. The Contributor Parties consent to the Debt Financing relating to the Group Companies, customary and their respective businesses to be included in the definitive documents relating to the Debt Financing, and assist with the execution and delivery reasonable use of the same, in each case, Company’s logos solely to the extent reasonable and customary for financings of such type, (i) cooperating with internal and external counsel of Buyer 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 Debt Financing, in each case, solely to the extent reasonable and customary for financings of such type, and (j) obtaining and providing documents to Buyer (including draft payoff letters) relating to the repayment of the Indebtedness and the release of related guarantees and Liens in accordance with the terms of this Agreement. The Company hereby consents, on behalf of itself and the Group Companies, to the use of the logos of the Group Companies in connection with the Debt Financing; provided that such logos are used solely in a manner that is not intended tointended, nor is or reasonably likely tolikely, to harm or disparage the Company’s reputation or any goodwill of the Company or its Affiliates’ reputation or goodwill.
8.11.2. (b) Notwithstanding anything in this Agreement to the contrary, : (ai) no Group Company nor any of their respective Representatives shall be required, under the provisions of this Section 8.11 or otherwise in connection with the Debt Financing, to pay any commitment or other similar fee or enter into any binding agreement (other than the execution none of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) Contributor Parties or commitment or incur any other actual or potential liability or obligation in connection with the Debt Financing prior to the Closing that is not advanced by Buyer, (b) no Group Company or any of their respective Representatives, managers, officers or employees shall be required to execute or enter into, perform or authorize any agreement with respect to the Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) that is not contingent upon the Closing or that would be effective prior to the Closing Date, (c) no Representative, manager, officer or employee of any Group Company shall be required to deliver any certificate or take any other action pursuant to this Section 8.11 to the extent any such action would reasonably be expected to result in personal liability to such Representative, manager, officer or employee, (d) no Group Company or their respective Representatives shall be required to take any action that would reasonably be expected, in the reasonable judgment of the Company, to conflict with, or result in any violation or breach of, any applicable Laws, any organizational documents of any Group Company, any contract or obligations of confidentiality (not created in contemplation hereof) binding on any Group Company, (e) no Group Company or any of their respective Representatives shall be required to take consent to or to execute or enter into or obtain any action that would cause consent from any condition third party in respect of any certificate, instrument, agreement or other document in connection with the Financing which will be effective prior to the Closing set forth Closing; (ii) nothing herein to not be satisfied shall require cooperation or otherwise cause any breach other actions or efforts on the part of this Agreementthe Contributor Parties or the Company, (f) no Group Company or any of their respective Representatives shall in connection with the Financing to the extent it would interfere unreasonably in any material respect with the Company Business; (iii) none of the Contributor Parties or the Company, or any of their respective Representatives will be required to make pay any representationcommitment or other similar fee, warranties to incur any other Liability or certifications as to whichenter into any agreement effective in connection with the Financing and which such agreement shall become effective prior to the Closing; (iv) none of the Contributor Parties or the Company, the Company has, in its good faith, determined is not true, (g) no Group Companies or their respective Representatives shall be required to provide, and consent to the Buyer will be solely responsible for the preparation of: (1) pro forma financial information; (2) any description pre-filing of all UCC-1 financing statements or any component other grant of the Debt Financing; or (3) projections, risk factors any Lien or other forward-looking statements relating to all or any component of the Debt Financingencumbrances; and (hv) no Group Company nothing herein shall be required to provide access to or disclose information that require the Company determines would jeopardize any attorney–client privilege or other similar privilege governing body of the Company to adopt resolutions approving or any of its Subsidiaries. Promptly upon request by otherwise approve the Companyagreements, Xxxxx will reimburse documents or instruments pursuant to which the Company for any reasonable costs Financing is made.
(c) Acquiror Parent and expenses (including reasonable attorneys’ fees) incurred by the Company, the Company Subsidiaries or any of their Representatives in connection with the cooperation of the Company, the Company Subsidiaries and their Representatives contemplated by this Section 8.11. Except in the case of fraud or a breach of this Agreement, Buyer Acquiror shall indemnify, defend, indemnify and hold harmless the Group Companies Contributor Parties, the Company and each of their respective Affiliates and Representatives from and against any and all losses, damages, awards, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecution, investigation, defense or settlement of any of the foregoing) and other amounts Losses suffered or incurred by any of them in connection with (i) any action taken by them at of their cooperation or assistance with respect to the request of Buyer pursuant to this Section 8.11 or in connection with the arrangement of the Debt Financing or (ii) the provision of any information utilized in connection therewiththerewith or otherwise arising from the Financing; provided, and however, that the foregoing obligations shall survive termination of this Agreement not apply to the Financing Information and any other material information provided by the occurrence of the Closing. In additionContributor Parties, no action, liability or obligation of the Company, any of the Company Subsidiaries or any of their Affiliates or their respective Representatives pursuant or to any certificate, agreement, arrangement, document or instrument relating to any Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) will be effective until the Closing Date. All material, non-public information regarding the Group Companies provided to Buyer or any of its Representatives pursuant to this Section 8.11 shall be kept confidential by them in accordance with the Confidentiality Agreement except for disclosure to potential investors as required in connection with the Debt Financing subject to customary confidentiality protections. Notwithstanding anything to the contrary, the Company shall be deemed to have complied with this Section 8.11 for all purposes of this Agreement (including Article 6 and Article 7) unless the Debt Financing has not been obtained primarily losses incurred as a result of the Company’s Willful Breach willful misconduct or gross negligence of its obligations under this Section 8.11any Contributor Party, the Company or any of their Affiliates or their respective Representatives. Notwithstanding anything herein Acquiror Parent and Acquiror shall upon Closing reimburse the Contributor Parties and their respective Affiliates and Representatives for any and all reasonable and documented out-of-pocket fees, costs or expenses (including reasonable and documented fees, costs and expenses of counsel, accountants and other advisors) incurred by any of them in connection with any of their cooperation or assistance with respect to the contraryFinancing or the provision of any information utilized in connection therewith or otherwise arising from the Financing; provided, Xxxxx acknowledges further, that the foregoing obligations shall not apply to costs or expenses incurred in connection with the preparation and agrees that obtaining any Debt Financing is not a condition to delivery of the ClosingRequired Financial Statements.
Appears in 1 contract
Samples: Contribution Agreement (Solaris Oilfield Infrastructure, Inc.)
Financing Cooperation. 8.11.1. Buyer may determine(a) Redfish shall provide, in its sole discretion, and shall cause the Redfish Subsidiaries to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (x) provide Seller and the Company with written notice that such Debt Financing has been obtained and (y) deliver (or cause to be delivered) to Seller and the Company true, correct and complete copies of all arrangements pursuant to which any Financing Parties shall have committed to provide any portion of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further that, in no event shall the receipt of such Debt Financing be a condition to Closing and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. Prior to the Closing, subject to Section 8.11.2, the Company shall use reasonable best efforts toprovide, and shall use its reasonable best efforts to cause the Company Subsidiaries and each of its and their respective Representatives torepresentatives, in each case at Buyer’s sole expenseincluding legal, provide tax, regulatory and accounting, to Buyer such provide, all cooperation reasonably requested by Buyer that is reasonably necessary Dorado and/or the Financing Sources in arranging, obtaining and syndicating connection with the Debt Financing, if any Financing (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the ongoing operations of Redfish and the Group CompaniesRedfish Subsidiaries), including, but not limited to:
(i) providing information relating to Redfish and the Redfish Subsidiaries to the Financing Sources (including as promptly as reasonably practical, (a) furnishing Buyer with information to be used in the Required Financial Information and other pertinent preparation of an information package regarding the Group Companies as may be business, operations, financial projections and prospects of Dorado and Redfish customary for such financing or reasonably requested by Buyer necessary for the completion of the Debt Financing, Financing by the Financing Sources) to the extent reasonably requested by Dorado to assist in preparation of customary offering or information documents to be used for the completion of the Financing as contemplated by the Commitment Letter;
(bii) participating in telephonic meetings and otherwise reasonably assisting with the preparation a reasonable number of appropriate and customary materials customary meetings, presentations, due diligence sessions (including accounting due diligence sessions) and sessions with the rating agencies in connection with the Debt Financing to the extent reasonable and customary for financings of such type, agencies;
(ciii) reasonably assisting in the preparation of documents and materials, including, but not limited to, (iA) any customary offering documents, bank information memoranda, lender prospectuses and investor presentations, offering documents, offering or private placement memoranda similar documents (including historical and other similar marketing documents pro forma financial statements and due diligence efforts information) for the Debt Financing and (ii) customary authorization and representation letters, each as required in connection with the Debt Financing, authorizing the distribution of information to prospective lenders and containing a representation that the public side of such documents, if any, do not include any information about any Group Company or any securities of any Group Company that would constitute material non-public information within the meaning of the United States federal and state securities laws if any Group Company were a public reporting company, (d) using reasonable best efforts to cause the Company’s independent registered accounting firm to provide customary assistance, including (i) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) in connection with any capital markets transaction comprising a part of the Debt Financing, (ii) providing customary consents to the inclusion of their audit report in respect of any financial statements of the Company and the Company Subsidiaries in any offering documents relating to the Debt Financing and (iii) reasonable assistance and cooperation to Buyer with respect to any auditor due diligence, (e) subject to and conditioned on the occurrence of the Closing, the taking of customary corporate actions reasonably necessary to permit the consummation of and funding of the Debt Financing, (f) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth in any definitive document relating to the Debt Financing to the extent satisfaction of such condition requires the cooperation of, or is within the control of, the Group Companies, (g) delivering to Buyer at least three (3) Business Days prior to the Closing all such documentation and information as is reasonably requested in writing by Buyer at least ten (10) Business Days prior to the Closing to the extent required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act and the requirements of 31 C.F.R. §1010.230, (h) facilitating and assisting in the preparation and delivery of any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents relating to the Debt Financing relating to the Group Companies, and their respective businesses to be included in the definitive documents relating to the Debt Financing, and assist with the execution and delivery of the same, in each case, solely to the extent reasonable and customary (B) materials for financings of such type, rating agency presentations;
(iiv) cooperating with internal and external counsel the marketing efforts for any of Buyer 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 Debt Financing, in each case, solely to the extent reasonable and customary for financings of such type, and (j) obtaining and providing documents to Buyer Financing (including draft payoff letters) relating to the repayment of the Indebtedness and the release of related guarantees and Liens in accordance with the terms of this Agreement. The Company hereby consents, on behalf of itself and the Group Companies, consenting to the use of Redfish’s and the logos of the Group Companies in connection with the Debt FinancingRedfish Subsidiaries’ logos; provided that such logos are used solely in a manner that is not intended to, nor is to or reasonably likely to, to harm or disparage Redfish or the Company’s Redfish Subsidiaries or the reputation or goodwill of Redfish or any of the Redfish Subsidiaries);
(v) executing and delivering (or using reasonable best efforts to obtain from its Affiliates’ reputation advisors), and causing the Redfish Subsidiaries to execute and deliver (or goodwill.
8.11.2. Notwithstanding anything use reasonable best efforts to obtain from its advisors), customary certificates, accounting comfort letters (including consents of accountants for use of their reports in this Agreement any materials relating to the contraryFinancing), (a) no Group Company nor any of their respective Representatives shall legal opinions or other documents and instruments relating to guarantees and other matters ancillary to the Financing as may be required, under the provisions of this Section 8.11 or otherwise reasonably requested by Dorado as necessary and customary in connection with the Debt Financing;
(vi) assisting in (A) the preparation of one or more credit agreements, currency or interest hedging agreements, or other agreements or (B) the preparation of one or more amendments of any of Redfish’s or Redfish Subsidiaries’ existing credit agreements, currency or interest hedging agreements, or other agreements, in each case, on terms satisfactory to Dorado and that are reasonably requested by Dorado in connection with the Financing; provided that no obligation of Redfish or any of the Redfish Subsidiaries under any such agreements or amendments shall be effective until the Effective Time;
(vii) as promptly as practicable, furnishing Dorado and the Financing Sources with all financial and other information regarding Redfish and the Redfish Subsidiaries as may be reasonably requested by Dorado and/or the Financing Sources to assist in preparation of customary offering or information documents to be used for the completion of the Financing as contemplated by the Commitment Letter;
(viii) using its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance;
(ix) using its reasonable best efforts to permit any cash and marketable securities of Redfish and the Redfish Subsidiaries (other than the MLP and its subsidiaries) to be made available to the Dorado at the Closing;
(x) providing authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders 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 Redfish or its affiliates or securities;
(xi) using its reasonable best efforts to ensure that the Financing Sources benefit from the existing lending relationships of Redfish and the Redfish Subsidiaries;
(xii) providing audited consolidated financial statements of Redfish covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for any interim period or periods of Redfish ended after the date of the most recent audited financial statements and at least 45 days prior to the Closing Date (within 45 days after the end of each such period); and
(xiii) cooperating reasonably with Dorado’s Financing Sources’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of Redfish; provided, that, until the Effective Time occurs, neither Redfish nor any of the Redfish Subsidiaries shall:
(1) be required to pay any commitment or other similar fee fee;
(2) have any liability or enter into any binding obligation under any credit agreement (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) or commitment any related document or incur any other actual agreement or potential liability document related to the Financing (or obligation alternative financing that Dorado may raise in connection with the Debt transactions contemplated by this Agreement); or
(3) be required to incur any other liability in connection with the Financing prior (or any alternative financing that Dorado may raise in connection with the transactions contemplated by this Agreement) unless reimbursed or indemnified by Dorado to the Closing that is not advanced reasonable satisfaction of Redfish; provided, further, that:
(I) all non-public or other confidential information provided by Buyer, (b) no Group Company Redfish or any of their respective Representatives, managers, officers or employees shall be required to execute or enter into, perform or authorize any agreement with respect to the Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) that is not contingent upon the Closing or that would be effective prior to the Closing Date, (c) no Representative, manager, officer or employee of any Group Company shall be required to deliver any certificate or take any other action its representatives pursuant to this Section 8.11 6.18 shall be kept confidential in accordance with the Confidentiality Agreements, except that Dorado shall be permitted to the extent disclose such information to potential syndicate members during syndication, subject to customary confidentiality undertakings by such potential syndicate members; and
(II) Redfish shall be permitted a reasonable period to comment on any documents or other information circulated to potential financing sources that contain or are based upon any such action would reasonably be expected to result in personal liability to such Representative, manager, officer or employee, (d) no Group Company or their respective Representatives shall be required to take any action that would reasonably be expected, in the reasonable judgment of the Company, to conflict with, or result in any violation or breach of, any applicable Laws, any organizational documents of any Group Company, any contract or obligations of confidentiality (not created in contemplation hereof) binding on any Group Company, (e) no Group Company or any of their respective Representatives shall be required to take any action that would cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement, (f) no Group Company or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, the Company has, in its good faith, determined is not true, (g) no Group Companies or their respective Representatives shall be required to provide, and the Buyer will be solely responsible for the preparation of: (1) pro forma financial information; (2) any description of all or any component of the Debt Financing; or (3) projections, risk factors non-public or other forward-looking statements relating to all or any component of the Debt Financing; and confidential information.
(hb) no Group Company Dorado (A) shall be required to provide access to or disclose information that the Company determines would jeopardize any attorney–client privilege or other similar privilege of the Company or any of its Subsidiaries. Promptly promptly, upon request by the CompanyRedfish, Xxxxx will reimburse the Company Redfish for any all reasonable out of pocket costs and expenses (including reasonable attorneys’ fees) incurred by Redfish, any of the Company, the Company Redfish Subsidiaries or any of their Representatives respective representatives in connection with the cooperation of Redfish and the Company, the Company Redfish Subsidiaries and their Representatives representatives contemplated by this Section 8.11. Except 6.18, (B) acknowledges and agrees that Redfish, the Redfish Subsidiaries and their respective representatives shall not have any responsibility for, or incur any liability to any person prior to the Effective Time under, the Financing or any alternative financing that Dorado may raise in connection with the case of fraud or a breach of transactions contemplated by this Agreement, Buyer Agreement and (C) shall indemnify, defend, indemnify and hold harmless Redfish, the Group Companies Redfish Subsidiaries and their respective Representatives representatives from and against any and all losses, damages, awardsclaims, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, costs or expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecution, investigation, defense or settlement of any of the foregoing) and other amounts suffered or incurred by any of them in connection with (i) any action taken by them at the request of Buyer pursuant to this Section 8.11 or in connection with the arrangement of the Debt Financing or (ii) and any information utilized regarding Dorado used in connection therewith, and the foregoing obligations shall survive termination of this Agreement and the occurrence of the Closing. In addition, no action, liability or obligation of the Company, any of the Company Subsidiaries or any of their respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to any Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) will be effective until the Closing Date. All material, non-public information regarding the Group Companies provided to Buyer or any of its Representatives pursuant to this Section 8.11 shall be kept confidential by them in accordance with the Confidentiality Agreement except for disclosure to potential investors as required in connection with the Debt Financing subject to customary confidentiality protections. Notwithstanding anything to the contrary, the Company shall be deemed to have complied with this Section 8.11 for all purposes of this Agreement (including Article 6 and Article 7) unless the Debt Financing has not been obtained primarily as a result of the Company’s Willful Breach of its obligations under this Section 8.11. Notwithstanding anything herein to the contrary, Xxxxx acknowledges and agrees that obtaining any Debt Financing is not a condition to the Closing.
Appears in 1 contract
Financing Cooperation. 8.11.1. (a) From the date of this Agreement until the Closing (or the earlier termination of this Agreement pursuant to ARTICLE VIII), subject to the limitations set forth in this Section 5.03, the Company will use its reasonable best efforts to cooperate with Buyer may determine, and Merger Sub as reasonably requested by Buyer and Merger Sub in its sole discretion, to obtain debt financing to fund any portion connection with Buyer's and Merger Sub's arrangement of the Purchase Price Debt Financing (or, for the “Debt Financing”avoidance of doubt, any alternate financing required under Section 6.05(c)); provided that nothing herein will require such cooperation to the Buyer shallextent it interferes, promptly after such Debt Financing is obtained (x) provide Seller and or would reasonably be expected to interfere, with the business or operations of the Company with written notice that such Debt Financing has been obtained and (y) deliver (or cause to be delivered) to Seller and the Company true, correct and complete copies of all arrangements its Subsidiaries. Cooperation pursuant to which any Financing Parties shall have committed to provide any portion of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further that, in no event shall the receipt of such Debt Financing be a condition to Closing and Buyer confirms that it this Section 5.03 will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. Prior to the Closing, subject to Section 8.11.2, the Company shall use reasonable best efforts to, and shall use include using reasonable best efforts to cause (i) participate in and make senior management of the Company Subsidiaries and its and their respective Representatives to, in each case at Buyer’s sole expense, provide to Buyer such cooperation reasonably requested by Buyer that is reasonably necessary in arranging, obtaining and syndicating the Debt Financing, if any (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the operations available for a reasonable number of the Group Companies), including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies as may be reasonably requested by Buyer for the completion of the Debt Financing, (b) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentations, meetings, and due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies in connection with the Debt Financing (including with Debt Financing Sources) at reasonable times and locations (which may be virtual) reasonably acceptable to the Company, (ii) provide reasonable assistance to Buyer in its preparation of any customary bank information memoranda or lender presentation and similar documents, (iii) in respect of assets of the Company and its Subsidiaries, or equity interests in the Company and its Subsidiaries held by the Unitholders, provide reasonable assistance to the extent reasonable and customary for financings of such type, (c) reasonably assisting in requested by Buyer with the preparation of (i) customary bank information memorandaloan agreements, lender pledge and investor presentations, offering documents, offering or private placement memoranda security documents and other similar marketing documents and due diligence efforts for required in connection with the Debt Financing (which, in each case, shall be contingent upon, and (ii) customary authorization only effective at, the Closing), including by providing reasonable assistance with the completion of schedules and representation letters, each as other information disclosures reasonably requested by Buyer and required in connection with the Debt Financing; (iv) reasonably facilitate, authorizing the distribution of information to prospective lenders and containing a representation that the public side of such documents, if any, do not include any information about any Group Company or any securities of any Group Company that would constitute material non-public information within the meaning effective as of the United States federal and state securities laws if any Group Company were a public reporting companyClosing Date, (d) using reasonable best efforts to cause the Company’s independent registered accounting firm to provide customary assistance, including (i) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) in connection with any capital markets transaction comprising a part pledging of the Debt Financing, (ii) providing customary consents to the inclusion of their audit report in respect of any financial statements collateral of the Company and its Subsidiaries, matters relating to title to assets or property of the Company and its Subsidiaries in any offering and the execution and delivery of definitive documents relating by the Company and its Subsidiaries related to the Debt Financing and on the terms contemplated by the Debt Commitment Letter (iiiprovided, that (A) reasonable assistance and cooperation none of the documents or certificates related to Buyer with respect to any auditor due diligencethe Debt Financing shall be executed or delivered except in connection with, or contingent upon, the Closing, (eB) subject to and the effectiveness thereof shall be conditioned on upon, or become operative after, the occurrence of the ClosingClosing and (C) no liability shall be imposed on the Company, any of its Subsidiaries or any of their respective officers or employees involved prior to the Effective Time); provided that, notwithstanding anything in this Agreement to the contrary, the taking Company will not be required to deliver or cause the delivery of customary corporate actions reasonably necessary any legal opinions or any certificate as to permit the consummation of and funding of solvency or any other certificate related to the Debt Financing; (v) at Buyer's sole cost and expense, cooperate with the replacement or backstop of any outstanding letters of credit issued for the account of the Company or any of its Subsidiaries; (fvi) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth in any definitive document relating to furnish, as promptly as practicable, Buyer and the Debt Financing Sources with all documentation and other information with respect to the extent satisfaction of such condition requires the cooperation ofCompany required under applicable "know your customer" and anti-money laundering laws, or is within the control ofrules and regulations, including, without limitation, the Group CompaniesUSA PATRIOT Act, (g) delivering to Buyer that is reasonably requested in writing by the Debt Financing Sources at least three five (35) Business Days prior to the Closing Date; and (vii) solely with respect to any directors and officers continuing in such roles after the Closing Date, and effective only on the Closing Date, take all such documentation organizational and information as is other actions, subject to the occurrence of the Closing, reasonably requested in writing by Buyer at least ten (10) Business Days prior to permit the Closing to the extent required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act and the requirements of 31 C.F.R. §1010.230, (h) facilitating and assisting in the preparation and delivery consummation of any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents relating to the Debt Financing relating to the Group Companies, and their respective businesses to be included in the definitive documents relating to the Debt Financing, and assist with the execution and delivery of the same, in each case, solely to the extent reasonable and customary for financings of such type, (i) cooperating with internal and external counsel of Buyer 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 Debt Financing, in each case, solely to the extent reasonable and customary for financings of such type, and (j) obtaining and providing documents to Buyer (including draft payoff letters) relating to the repayment of the Indebtedness and the release of related guarantees and Liens in accordance with the terms of this Agreementfinancing arrangement. The Company hereby consents, on behalf of itself and the Group Companies, consents to the use of the its and its Subsidiaries' logos of the Group Companies in connection with the Debt Financing; provided that such logos are used solely in a manner that is not intended tointended, nor is or reasonably likely tolikely, to harm or disparage the Company’s Company or any of its Affiliates’ Subsidiaries or the reputation or goodwillgoodwill of any of them.
8.11.2. (b) Notwithstanding this Section 5.03 or anything else in this Agreement Agreement: (i) in no event will the Company or any of its Subsidiaries be required to the contrarypay any commitment fee or other fee or payment to obtain consent, (a) no Group Company nor or to incur any liability with respect to, or cause or permit any Lien to be placed on any of their respective Representatives shall be required, under the provisions of this Section 8.11 or otherwise assets in connection with the Debt Financingwith, to pay any commitment or other similar fee or enter into any binding agreement (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) or commitment or incur any other actual or potential liability or obligation in connection with the Debt Financing prior to the Closing Effective Time; and (ii) nothing in this Section 5.03 shall require any action that is not advanced by Buyer, (b) no Group Company would conflict with or violate the Company's or any of their respective RepresentativesSubsidiaries' organizational documents or any Laws or result in the contravention of, managers, officers or employees shall be required to execute or enter into, perform or authorize any agreement with respect to the Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) that is not contingent upon the Closing or that would be effective prior to the Closing Date, (c) no Representative, manager, officer or employee of any Group Company shall be required to deliver any certificate or take any other action pursuant to this Section 8.11 to the extent any such action would reasonably be expected to result in personal liability to such Representative, manager, officer or employee, (d) no Group Company or their respective Representatives shall be required to take any action that would reasonably be expected, in the reasonable judgment of the Company, to conflict with, or result in any a violation or breach of, any applicable Laws, any organizational documents of any Group Companyor a default under, any contract or obligations of confidentiality (not created in contemplation hereof) binding on any Group Company, (e) no Group Company or any of their respective Representatives shall be required to take any action that would cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement, (f) no Group Company or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, the Company has, in its good faith, determined is not true, (g) no Group Companies or their respective Representatives shall be required to provide, and the Buyer will be solely responsible for the preparation of: (1) pro forma financial information; (2) any description of all or any component of the Debt Financing; or (3) projections, risk factors or other forward-looking statements relating to all or any component of the Debt Financing; and (h) no Group Company shall be required to provide access to or disclose information that the Company determines would jeopardize any attorney–client privilege or other similar privilege of which the Company or any of its Subsidiaries. Promptly Subsidiaries is a party.
(c) Buyer (i) will promptly, upon request by the Company, Xxxxx will reimburse the Company for any all reasonable and documented out-of-pocket fees, costs and expenses (including reasonable attorneys’ feesand documented out-of-pocket fees and expenses of Advisors) incurred by the Company, the Company Subsidiaries or any of their Representatives in connection with the cooperation of the Company, the Company its Subsidiaries and their Representatives contemplated by respective Affiliates, officers and Advisors in connection their compliance with this Section 8.11. Except in the case of fraud or a breach of this Agreement, Buyer shall indemnify, defend, 5.03 and (ii) will indemnify and hold harmless the Group Companies Company, its Subsidiaries and their respective Representatives Affiliates, officers and Advisors from and against any and all losses, damages, awardsclaims, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, costs or expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecution, investigation, defense or settlement of any of the foregoing) and other amounts suffered or incurred by any of them in connection with (i) any action taken by them at the request of Buyer pursuant to this Section 8.11 or in connection with the arrangement of the Debt Financing or (ii) and any information utilized used in connection therewith, and except to the foregoing obligations shall survive termination of this Agreement and the occurrence extent suffered or incurred as a result of the Closing. In addition, no action, liability bad faith or obligation of the Company, any willful misconduct of the Company Subsidiaries or any Affiliate (to the extent determined by a final, non-appealable judgment of a court of competent jurisdiction).
(d) Buyer and the Debt Financing Sources may disclose confidential information regarding the Unitholders, the Company or their respective Affiliates obtained by Buyer, the Debt Financing Sources or their respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to any during the syndication of the Debt Financing to (other than i) potential lenders and investors in connection with the execution marketing and syndication of the authorization letters referred to Debt Financing and (ii) rating agencies in clause (c)(ii) of Section 8.11.1) will be effective until connection with confirming or obtaining ratings for Buyer or the Closing Date. All material, Debt Financing; provided that all non-public or other confidential information regarding provided by the Group Companies provided to Buyer or any of Company and its Representatives pursuant to this Section 8.11 Affiliates and representatives shall be kept confidential by them in accordance with the Confidentiality Agreement, except that Buyer shall be permitted to disclose such information to the Confidentiality Agreement except for disclosure to potential investors as required in connection with Debt Financing Sources, rating agencies and prospective lenders during syndication of the Debt Financing subject to the Debt Financing Sources, rating agencies and prospective lenders agreeing to customary confidentiality protectionsobligations (which may include customary "click through" language) with respect to such information.
(e) The parties agree that this Section 5.03 (and not Section 5.07) sets forth the Company's sole obligations with respect to the Debt Financing. Notwithstanding anything to the contrarycontrary in this Agreement or in any other Transaction Document, it is understood and agreed by the Company parties that the conditions set forth in Section 7.02 as applied to the Company's obligations under this Section 5.03 shall be deemed to have complied with this Section 8.11 for all purposes of this Agreement (including Article 6 and Article 7) be satisfied unless the Debt Financing contemplated by the Debt Commitment Letter has not been obtained primarily as a direct result of the Company’s 's Willful Breach of its obligations obligation under this Section 8.115.03. Notwithstanding anything herein to For purposes of this Section 5.03, "Willful Breach" means a material breach by the contrary, Xxxxx acknowledges and agrees Company that obtaining any Debt Financing is not a condition to consequence of an act or omission knowingly undertaken or omitted by the ClosingCompany with the intent of causing a breach of this Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Primoris Services Corp)
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion (a) From and after the date of this Agreement until the earlier of the Purchase Price (Closing or the “Debt Financing”); provided that the Buyer termination of this Agreement, Seller shall, promptly after such Debt Financing is obtained (x) provide Seller and the Company with written notice that such Debt Financing has been obtained and (y) deliver (or cause to be delivered) to Seller and the Company true, correct and complete copies of all arrangements pursuant to which any Financing Parties shall have committed to provide any portion of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further that, in no event shall the receipt of such Debt Financing be a condition to Closing and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. Prior to the Closing, subject to Section 8.11.2, the Company shall use reasonable best efforts to, and shall cause each of the Acquired Companies to, use commercially reasonable best efforts to cause the Company Subsidiaries provide reasonable cooperation and its assistance that is customary or necessary, and their respective Representatives to, in each case at Buyer’s sole expense, provide to Buyer such cooperation as reasonably requested by Buyer that is reasonably necessary (with reasonable prior notice), in arrangingconnection with the arrangement of any debt financing (including, obtaining and syndicating but not limited to any "asset-based loan financing") (any such debt financing, the "Debt Financing, if any (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere ") to be incurred by Buyer in connection with the operations of the Group Companies)transactions contemplated hereby, including as promptly as reasonably practical, using commercially reasonable efforts to: (aA) furnishing Buyer with available financial information and statements with respect to the Required Financial Information and other pertinent information regarding the Group Acquired Companies as may reasonably be reasonably requested required by Buyer for the completion of the Debt Financing, (b) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies in connection with the Debt Financing to the extent reasonable and customary for financings of such typefinancing transactions, (cB) reasonably assisting in the preparation of (i) customary bank information memoranda, lender and investor presentations, offering documents, offering or private placement memoranda furnishing Buyer with all documentation and other similar marketing documents and due diligence efforts for the Debt Financing and (ii) customary authorization and representation letters, each as required in connection with the Debt Financing, authorizing the distribution of information to prospective lenders and containing a representation that the public side of such documents, if any, do not include any information about any Group Company or any securities of any Group Company that would constitute material non-public information within the meaning of the United States federal and state securities laws if any Group Company were a public reporting company, (d) using reasonable best efforts to cause the Company’s independent registered accounting firm to provide customary assistance, including (i) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) in connection with any capital markets transaction comprising a part of the Debt Financing, (ii) providing customary consents to the inclusion of their audit report in respect of any financial statements of the Company and the Company Subsidiaries in any offering documents relating to the Debt Financing and (iii) reasonable assistance and cooperation to Buyer with respect to any auditor due diligence, (e) subject to and conditioned on the occurrence of the Closing, the taking of customary corporate actions reasonably necessary to permit the consummation of and funding of the Debt Financing, (f) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth in any definitive document relating to the Debt Financing to the extent satisfaction of such condition requires the cooperation of, or is within the control of, the Group Companies, (g) delivering to Buyer at least three (3) Business Days prior to the Closing all such documentation and information as is reasonably requested in writing by Buyer at least ten (10) Business Days prior to the Closing to the extent required by U.S. bank regulatory authorities under applicable “know your "know-your-customer” " and anti-money laundering rules and regulations, including the PATRIOT Act and the requirements of 31 C.F.R. §1010.230Patriot Act, (hC) facilitating upon reasonable prior notice and assisting in reasonably convenient locations (or via telephonic meeting), making senior management of the preparation Acquired Companies available to participate in a reasonable and delivery limited number of any credit agreementsmeetings and due diligence sessions with proposed lenders, indentures(D) causing officers of the Acquired Companies who have been identified by Buyer in writing to Seller as individuals who will be officers after the Closing Date to take reasonable corporate actions, notessubject to the occurrence of the Closing, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents relating necessary to permit the consummation of the Debt Financing relating to (including executing and delivering at Closing any pledge and security documents, other definitive financing documents, payoff letters, and officer's, solvency, insurance and other certificates and documents as reasonably requested by Buyer) and (E) cooperating with Buyer in customary actions in connection with "asset based" loans, including appraisals, field exams, inspections or other similar actions reasonably requested by Buyer; provided, however, that (i) such requested cooperation shall not unreasonably interfere with the Group business of the Acquired Companies, or provide any information the disclosure of which is prohibited or restricted by Law, (ii) none of the Seller, the Acquired Companies or any of their Affiliates or any Representatives of the foregoing shall be required to take any action that (A) would subject such Person to any actual or, (B) be reasonably likely to subject such person to any potential Liability, to bear any out of pocket cost or expense or to pay any commitment or similar fee or incur any other liability or provide or agree to provide any indemnity in connection with the arrangement of any Debt Financing or their performance of their respective obligations under this Section 6.17 or any information utilized in connection therewith and its and their respective businesses to be included Representatives for any such fees or liabilities and Buyer and its Affiliates will indemnify and hold harmless Seller, the Acquired Companies, its and their Affiliates and its and their respective Representatives for any such fees or Liabilities and the performance of their respective obligations under this Section 6.17 and any information utilized in the definitive documents relating to the Debt Financing, and assist with the execution and delivery of the same, in each case, solely connection therewith (except to the extent reasonable Seller has acted in bad faith or committed a willful and customary for financings of such typeintentional breach with respect to its obligations under this Section 6.17), (iiii) cooperating with internal and external counsel of Buyer in connection with providing customary back-up certificates and factual information regarding any legal opinion that such counsel may no Acquired Company nor its officers, managers, directors or employees shall be required to deliver execute any solvency certificate or authorization letter in connection with the Debt Financing, in each case, solely Financing that would be effective prior to the extent reasonable and customary for financings Closing, (iv) persons who are on the board of such type, and (j) obtaining and providing documents to Buyer (including draft payoff letters) relating directors/managers or the board of directors/managers of each Acquired Company solely prior to the repayment Closing in their capacity as such shall not be required to pass resolutions or consents to approve or authorize the execution of the Indebtedness and the release of related guarantees and Liens in accordance with the terms of this Agreement. The Company hereby consents, on behalf of itself and the Group Companies, to the use of the logos of the Group Companies in connection with the Debt Financing; provided that such logos are used solely in a manner that is not intended to, nor is reasonably likely to, harm or disparage the Company’s (v) no obligation of any Acquired Company or any of its Affiliates’ reputation representatives undertaken pursuant to the foregoing shall be effective until the Closing, (vi) nothing contained in this Section 6.17(a) or goodwillotherwise shall require any Acquired Company, prior to the Closing, to be an issuer or other obligor with respect to the Debt Financing and (vii) neither Seller nor the Acquired Companies nor any of their respective officers, managers, directors or employees shall be obligated to seek consents from any third parties (including lessors) to facilitate or permit the Debt Financing.
8.11.2. (b) Notwithstanding anything in this Agreement to the contrary, (a) in no Group Company nor event will any of their respective Representatives shall be required, under the provisions of this Section 8.11 or otherwise in connection with the Debt Financing, to pay any commitment or other similar fee or enter into any binding agreement (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) or commitment or incur any other actual or potential liability or obligation in connection with the Debt Financing prior to the Closing that is not advanced failure by Buyer, (b) no Group Company Seller or any of their respective Representativesits Affiliates to comply with this Section 6.17 be used by Buyer as a basis to terminate this Agreement or assert the failure of any condition to closing set forth in Article VIII to be satisfied, managers, officers except the extent Seller has acted in bad faith or employees shall be required to execute or enter into, perform or authorize any agreement committed a willful and intentional breach with respect to the Debt Financing (other than the execution of the authorization letters referred to its obligations in clause (c)(iithis Section 6.17. Buyer's obligations under Section 6.17(a)(ii) of and Section 8.11.16.17(c) that is not contingent upon shall survive the Closing or that would be effective prior to the Closing Datetermination of this Agreement, as applicable.
(c) no RepresentativeWithin thirty (30) days following the Closing, managerBuyer shall, officer or employee promptly upon request of Seller, reimburse Seller and its Affiliates for all reasonable and documented out-of-pocket costs and expenses incurred by Seller, any Group Company shall be required to deliver any certificate or take any other action pursuant to this Section 8.11 to the extent any such action would reasonably be expected to result in personal liability to such Representative, manager, officer or employee, (d) no Group Acquired Company or their respective Representatives shall be required to take any action that would reasonably be expectedAffiliates (including those of accountants, in the reasonable judgment of the Companyconsultants, to conflict withlegal counsel, or result in any violation or breach of, any applicable Laws, any organizational documents of any Group Company, any contract or obligations of confidentiality (not created in contemplation hereof) binding on any Group Company, (e) no Group Company or any of their respective Representatives shall be required to take any action that would cause any condition agents and other representatives to the Closing set forth herein to not be satisfied or otherwise cause any breach extent of this Agreement, (fcooperation requested by Buyer) no Group Company or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, the Company has, in its good faith, determined is not true, (g) no Group Companies or their respective Representatives shall be required to provide, and the Buyer will be solely responsible for the preparation of: (1) pro forma financial information; (2) any description of all or any component of the Debt Financing; or (3) projections, risk factors or other forward-looking statements relating to all or any component of the Debt Financing; and (h) no Group Company shall be required to provide access to or disclose information that the Company determines would jeopardize any attorney–client privilege or other similar privilege of the Company or any of its Subsidiaries. Promptly upon request by the Company, Xxxxx will reimburse the Company for any reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Company, the Company Subsidiaries or any of their Representatives in connection with the cooperation of the Company, the Company Subsidiaries and their Representatives contemplated required by this Section 8.11. Except 6.17.
(d) Notwithstanding the foregoing or anything contained in the case of fraud or a breach of this Agreement, Buyer shall indemnify, defend, acknowledges and hold harmless agrees that the Group Companies and their respective Representatives from and against any and all losses, damages, awards, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecution, investigation, defense or settlement of any consummation of the foregoing) and other amounts suffered or incurred transactions contemplated by them in connection with (i) any action taken this Agreement is not conditioned upon the receipt by them at Buyer of the request of Buyer pursuant to this Section 8.11 or in connection with the arrangement proceeds of the Debt Financing or (ii) and that any information utilized in connection therewith, and the foregoing obligations shall survive termination of this Agreement and the occurrence of the Closing. In addition, no action, liability or obligation of the Company, any of the Company Subsidiaries or any of their respective Representatives pursuant failure by Buyer to any certificate, agreement, arrangement, document or instrument relating to any Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) will be effective until consummate the Closing Date. All material, non-public information regarding on the Group Companies provided to Buyer or any Closing Date solely by reason of its Representatives pursuant to this Section 8.11 shall be kept confidential by them in accordance with the Confidentiality Agreement except for disclosure to potential investors as required in connection with absence of the Debt Financing subject to customary confidentiality protections. Notwithstanding anything to the contrary, the Company shall be deemed to have complied with this Section 8.11 for all purposes constitute a breach by Buyer of this Agreement (including Article 6 and Article 7) unless the Debt Financing has not been obtained primarily as a result of the Company’s Willful Breach of its obligations under this Section 8.11. Notwithstanding anything herein to the contrary, Xxxxx acknowledges and agrees that obtaining any Debt Financing is not a condition to the ClosingAgreement.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Natural Resource Partners Lp)
Financing Cooperation. 8.11.1. Buyer may determine(a) Parent shall use its reasonable best efforts to arrange the Financing as promptly as practicable following the date of this Agreement and shall consummate the Financing on or prior to the Closing Date, including, but not limited to, by: (i) maintaining in effect the Financing Letter; (ii) participation by senior management of Parent in, and assistance with, the preparation of customary rating agency presentations and meetings with rating agencies relating to such arrangement of loans; (iii) causing the Financing to be consummated upon satisfaction of the applicable conditions; (iv) satisfying on a timely basis all conditions set forth in the Financing Letter required for the Closing Date; (v) negotiating, executing and delivering definitive agreements with respect to the Financing that reflect the terms contained in the Financing Letter (including any “market flex” provisions related thereto) or on such other terms acceptable to Parent and its sole discretionfinancing sources; and (vi) in the event that the conditions set forth in Sections 8.01 and 8.02 and the conditions expressly set forth in the tenth paragraph of the Financing Letter (as in effect on the date hereof) have been satisfied or, to obtain debt upon funding would be satisfied, causing the financing providers to fund the full amount of the Financing. Parent shall give the Company prompt notice of any actual breach, repudiation or threatened or anticipated breach or repudiation by any party to the Financing Letter of which Parent or its Affiliates becomes aware relating to the obligation to fund the Financing. Without limiting Parent’s other obligations under this Section 6.06, if any portion of the Purchase Price Financing becomes unavailable, Parent shall (i) immediately notify the “Debt Company of such unavailability and the reasons therefore known to Parent, (ii) use reasonable best efforts to obtain Alternate Financing and consummate the transactions contemplated by this Agreement on the Closing Date, and (iii) use reasonable best efforts to obtain, and when obtained, provide the Company with a true and complete copy of, a new financing commitment that provides for such Alternate Financing”); provided provided, that the Buyer shall, promptly after any such Debt Alternate Financing is obtained shall (x) provide Seller comply with all limitations on amendments, modifications and replacements of the Company with written notice that such Debt Financing has been obtained and set forth in this Section 6.06, (y) deliver (or cause to be delivered) to Seller and the Company true, correct and complete copies of all arrangements pursuant to which any Financing Parties shall have committed to provide any portion of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further that, in no event shall the receipt amount of such Debt Alternate Financing shall be a condition at least an amount sufficient to Closing pay the Class B Redemption Consideration, the Merger Consideration and Buyer confirms that it will have at Closing sufficient cash all fees, costs and expenses necessary to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. Prior (z) such Alternate Financing shall not contain conditions to the Closingreceipt of the funds from such Alternate Financing that are materially less favorable in the aggregate to Parent than the conditions of the Financing that such Alternate Financing is replacing. Neither Parent nor any of its Affiliates shall amend, modify, supplement, restate, assign, substitute or replace the Financing Letter except for (i) substitutions and replacements pursuant to the immediately preceding sentence and (ii) amendments, modifications, supplements, restatements, assignments, substitutions or replacements which (A) do not reduce the aggregate amount of the Financing (including by increasing the amount of fees to be paid or original issue discount unless the Financing is increased by a corresponding amount or the Financing is otherwise made available to fund such fees or original issue discount) or (B) do not impose new or additional conditions or otherwise expand, amend or modify any other provision of the Financing Letter, in a manner that would reasonably be expected to (x) materially delay or prevent or make less likely the funding of the Financing (or satisfaction of the conditions to the Financing) on the Closing Date or (y) adversely impact the ability of Parent, Merger Sub or the Company, as applicable, to enforce its rights against other parties to the Financing Letter or the definitive agreements with respect thereto, in each of clauses “(x)” and “(y)”, in any material respect (provided that Parent and Merger Sub may amend the Financing Letter to add additional lenders, arrangers, bookrunners, agents and investors as permitted therein). Parent shall promptly deliver to the Company copies of any such amendment, modification or replacement. Parent shall not consent to any assignment of rights or obligations under the Financing Letter, other than as permitted by the terms of the Financing Letter, without the prior written approval of the Company, such approval not to be unreasonably withheld, conditioned or delayed. Parent shall keep the Company informed in reasonable detail of the status of Parent’s efforts to arrange the Financing. Upon the reasonable request of the Company or Stockholder Representative, Parent will confirm (y) with its financing sources their intent and ability to perform, and the availability of the Financing, under the Financing Letter, subject only to satisfaction or waiver of the conditions in the Financing Letter, and (z) that it is not aware of any event or condition that could reasonably be expected to result in the failure of any conditions in the Financing Letter. Neither Parent nor any of its Affiliates shall take any action with respect to the Financing that could reasonably be expected to materially delay or prevent the consummation of the transactions contemplated hereby. Notwithstanding anything contained in this Section 8.11.26.06 or in any other provision of this Agreement, in no event shall Parent or Merger Sub be required (A) to amend or waive any of the terms or conditions hereof or (B) to consummate the Closing prior to the date specified in Section 2.04(a).
(b) During the period beginning on the date hereof and ending on the Closing Date, the Company shall use reasonable best efforts to, and shall use reasonable best efforts to cause the Company Subsidiaries cooperate with Parent and its Representatives to arrange Financing for Parent in connection with the transactions contemplated hereby and their respective Representatives tofor the post-Closing operations of Parent, in each case at BuyerParent’s sole expense, provide including by (i) upon reasonable advance notice by Parent and during normal business hours, participating in due diligence meetings with prospective Financing Sources and their Representatives, (ii) assisting Parent with its preparation and negotiation of documentation related to Buyer the Business or otherwise required in connection with such cooperation reasonably requested by Buyer that is reasonably necessary in arranging, obtaining and syndicating the Debt Financing, if including one or more credit agreements and/or indentures or other definitive agreements as directed by Parent (it being understood that the Company shall have no obligation to enter into or cause to be entered into any (Contract or provide or cause to be provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the operations of the Group Companies)any legal opinion, including as promptly as reasonably practicalofficer certificate or commitment or make any representations or warranties, (a) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies as may be reasonably requested by Buyer for the completion of the Debt Financingin each case, (b) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies except in connection with the Debt Financing to the extent reasonable and customary for financings of such typeClosing), (ciii) reasonably assisting causing the senior management of the Company to provide reasonable access in connection with due diligence investigations, assistance with customary marketing activities, the preparation of (i) customary bank information memorandarating agency presentations, management presentations, lender and investor presentations, offering documents, offering or private placement memoranda presentations and other similar marketing documents documents, meetings with rating agencies, one or more “road shows” and due diligence efforts for other meetings with potential lenders or investors, as determined by the Debt arrangers, underwriters, initial purchasers or other Person in any similar capacity acting on behalf of the Financing and (ii) customary authorization and representation letters, each as required Sources in connection with the Debt Financing, authorizing the distribution of information to prospective lenders and containing a representation that the public side ; (iv) assisting Parent with its preparation of such documentsfinancial statements, if anyforecasts of balance sheets, do income statements and cash flow statements, historical, financial and other information, including, but not include any information about any Group Company or any securities of any Group Company that would constitute material non-public information within the meaning of the United States federal and state securities laws if any Group Company were a public reporting companylimited to, (dA) using reasonable best efforts to cause audited consolidated balance sheets and related statements of income, cash flows, and invested equity and the Company’s independent registered accounting firm to provide customary assistance, including (i) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) in connection with any capital markets transaction comprising a part of the Debt Financing, (ii) providing customary consents respective notes to the inclusion financial statements for the Company Group for the fiscal year ended July 31, 2013; (B) unaudited consolidated balance sheets for the fiscal quarters ended July 31, 2013 and October 31, 2013 and related statements of their audit report operations, cash flows, and invested equity for the fiscal quarter ended October 31, 2013 and the corresponding interim period in respect of any 2012, and the respective notes to the financial statements of the Company Group, prepared on a consistent basis with the audited consolidated financial statements; and (C) the four (4) quarter break out of the audited statements of operations for the fiscal years ended July 31, 2013 and July 31, 2012 (clauses (iv)(A), (iv)(B), (iv)(C) of this Section 6.06(b), collectively, the “Historical Company Group Financials”); (v) requesting its independent accountants to provide reasonable and customary cooperation in the Financing, including (A) requesting its auditors to provide any necessary consents to use their audit reports related to the Company Subsidiaries in any offering documents relating to the Debt Financing and (iiiB) reasonable assistance and cooperation requesting its auditors to Buyer with respect to provide any auditor due diligence, necessary “comfort letters”; (evi) subject to and conditioned on the occurrence of the Closing, the taking of providing customary corporate actions reasonably necessary to permit the consummation of and funding of the Debt Financing, (f) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth in any definitive document relating to the Debt Financing to the extent satisfaction of such condition requires the cooperation of, or is within the control of, the Group Companies, (g) delivering to Buyer at least three (3) Business Days prior to the Closing all such documentation and other information about the Company as is reasonably requested in writing by Buyer at least ten (10) Business Days prior to the Closing to the extent Financing Sources and required by U.S. regulatory authorities under applicable “know your customer” and anti-money money-laundering rules and regulations, regulations including the USA PATRIOT Act and the requirements of 31 C.F.R. §1010.230(vii) taking all corporate actions, (h) facilitating and assisting in the preparation and delivery of any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents relating subject only to the Debt Financing relating occurrence of the Effective Time, reasonably requested by the Parent to permit the consummation of the Financing; provided, that notwithstanding anything to the Group Companies, and their respective businesses to be included contrary contained in the definitive documents relating to the Debt Financing, and assist with the execution and delivery of the same, in each case, solely to the extent reasonable and customary for financings of such typethis Section 6.06(b), (i) cooperating none of the Company, any of its Subsidiaries or any of their respective Representatives shall be obligated to adopt or approve resolutions or execute consents to approve or authorize the execution of the Financing prior to the Effective Time, (ii) no obligation of the Company or any of its Subsidiaries under any agreement, certificate, document or instrument shall be effective until the Effective Time (and nothing contained in this Section 6.06(b) or otherwise shall require the Company or any of its Subsidiaries, prior to the Effective Time, to be an obligor with internal and external counsel respect to the Financing), (iii) none of Buyer in connection with providing customary back-up certificates and factual information regarding the Company or any legal opinion that such counsel may of its Subsidiaries or Representatives shall be required to deliver pay or incur any liability for any commitment or other fee or pay or incur any other liability in connection with the Debt Financing, Financing prior to the Effective Time and (iv) nothing in each case, solely this Section 6.06(b) shall require such cooperation by the Company to the extent reasonable and customary for financings it would (x) require the Company or any of such typeits Subsidiaries to take any action that will conflict with or violate the Company’s organizational documents or any Applicable Law or result in the contravention of, and or that would reasonably be expected to result in a violation or breach of, or default under, any Contract to which the Company or any of its Subsidiaries is a party (jin each case prior to the Effective Time) obtaining and providing documents or (y) result in any officer or director of the Company or any of its Subsidiaries incurring any personal liability with respect to Buyer (including draft payoff letters) any matters relating to the repayment Financing.
(c) For the avoidance of doubt, neither (i) the Company’s cooperation with respect to the preparation of financial statements, forecasts of balance sheets, income statements and cash flow statements, historical, financial and other information (including the Historical Company Group Financials) nor (ii) the availability, or Parent’s obtaining, of the Indebtedness Financing is, or shall be deemed, a condition to Parent and Merger Sub’s obligation to consummate the release of related guarantees and Liens in accordance with the terms of this Agreement. Merger.
(d) The Company hereby consents, on behalf of itself and the Group Companies, consents to the use of the its logos of the Group Companies in connection with the Debt Financing; provided that such logos are used solely in a manner that is not intended to, nor is to or reasonably likely to, to harm or disparage the Company’s Company or any of its Affiliates’ the reputation or goodwill.
8.11.2. Notwithstanding anything in this Agreement goodwill of the Company and that the Company shall be permitted to review the use of such logos prior to the contrary, (a) no Group Company nor any of their respective Representatives shall be required, under the provisions of this Section 8.11 or otherwise usage in connection with the Debt Financing. Parent shall promptly, to pay any commitment or other similar fee or enter into any binding agreement (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) or commitment or incur any other actual or potential liability or obligation in connection with the Debt Financing prior to the Closing that is not advanced by Buyer, (b) no Group Company or any of their respective Representatives, managers, officers or employees shall be required to execute or enter into, perform or authorize any agreement with respect to the Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) that is not contingent upon the Closing or that would be effective prior to the Closing Date, (c) no Representative, manager, officer or employee of any Group Company shall be required to deliver any certificate or take any other action pursuant to this Section 8.11 to the extent any such action would reasonably be expected to result in personal liability to such Representative, manager, officer or employee, (d) no Group Company or their respective Representatives shall be required to take any action that would reasonably be expected, in the reasonable judgment of the Company, to conflict with, or result in any violation or breach of, any applicable Laws, any organizational documents of any Group Company, any contract or obligations of confidentiality (not created in contemplation hereof) binding on any Group Company, (e) no Group Company or any of their respective Representatives shall be required to take any action that would cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement, (f) no Group Company or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, the Company has, in its good faith, determined is not true, (g) no Group Companies or their respective Representatives shall be required to provide, and the Buyer will be solely responsible for the preparation of: (1) pro forma financial information; (2) any description of all or any component of the Debt Financing; or (3) projections, risk factors or other forward-looking statements relating to all or any component of the Debt Financing; and (h) no Group Company shall be required to provide access to or disclose information that the Company determines would jeopardize any attorney–client privilege or other similar privilege of the Company or any of its Subsidiaries. Promptly upon request by the Company, Xxxxx will reimburse the Company for any all reasonable out-of-pocket costs and expenses (including reasonable attorneys’ feesand accountants costs and expenses) incurred by the Company, the Company Subsidiaries or any of their Representatives in connection with the cooperation of the Company, the Company Subsidiaries and their Representatives contemplated by this Section 8.11. Except in the case of fraud or a breach of this Agreement, Buyer 6.06 and shall indemnify, defend, and hold harmless the Group Companies Company and their respective its Representatives from and against any and all losses, damages, awardsclaims, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, costs or expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecution, investigation, defense or settlement of any of the foregoing) and other amounts suffered or incurred by any of them in connection with (i) the arrangement of the Financing, any action taken by them at the request of Buyer Parent pursuant to this Section 8.11 or 6.06 and any information used in connection therewith (except with the arrangement of the Debt Financing or (ii) respect to any information utilized provided in writing by the Company specifically for us in connection therewith, and the foregoing obligations shall survive termination of ).
(e) Notwithstanding anything in this Agreement and the occurrence of the Closing. In addition, no action, liability or obligation of the Company, any of the Company Subsidiaries or any of their respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to any Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) will be effective until the Closing Date. All material, non-public information regarding the Group Companies provided to Buyer or any of its Representatives pursuant to this Section 8.11 shall be kept confidential by them in accordance with the Confidentiality Agreement except for disclosure to potential investors as required in connection with the Debt Financing subject to customary confidentiality protections. Notwithstanding anything to the contrary, Parent understands and acknowledges that under the Company shall be deemed terms of this Agreement, the obligations of Parent and Merger Sub to have complied with consummate the Merger are not in any way contingent upon or otherwise subject to this Section 8.11 for all purposes 6.06, the consummation by Parent or Merger Sub of this Agreement (including Article 6 and Article 7) unless any financing arrangements, the Debt Financing has not been obtained primarily as a result obtaining by Parent or Merger Sub of any financing or the Company’s Willful Breach availability, grant, provision or extension of its obligations under this Section 8.11. Notwithstanding anything herein any financing to the contrary, Xxxxx acknowledges and agrees that obtaining any Debt Financing is not a condition to the ClosingParent or Merger Sub.
Appears in 1 contract
Samples: Merger Agreement (NCR Corp)
Financing Cooperation. 8.11.1. The Parties acknowledge and agree that, prior to Closing, (i) Buyer may determineseek additional equity or debt financing, including without limitation common equity, preferred equity, warrants, notes, debentures, or commercial credit, on such terms, including without limitation purchase price, redemption price, exercise price, conversion price, maturity date, dividend rate, interest rate and/or other economic terms, as are determined in its sole discretiongood faith by the board of directors of Buyer, for the purpose of meeting the Minimum Cash Closing Condition and (ii) the Company may arrange for an aggregate of up to obtain debt financing to fund any portion $2,000,000 for the purpose of advancing the Purchase Price Oman project or other Company development initiatives (the collectively, a “Debt Financing”); provided that , which Financing may be made contingent upon Closing. Subject to the Buyer foregoing, the Parties agree as follows:
(a) Each Party shall, promptly after such Debt Financing is obtained (x) provide Seller and the Company with written notice that such Debt Financing has been obtained shall cause its Subsidiaries and (y) deliver (or cause to be delivered) to Seller and the Company true, correct and complete copies of all arrangements pursuant to which any Financing Parties shall have committed to provide any portion of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further that, in no event shall the receipt of such Debt Financing be a condition to Closing and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. Prior to the Closing, subject to Section 8.11.2, the Company shall use reasonable best efforts Affiliates to, and shall use commercially reasonable best efforts to cause the Company Subsidiaries its and its Subsidiaries’ officers, directors, employees, accountants, representatives, agents and their respective Representatives advisors to, in each case at Buyer’s sole expense, provide to Buyer such cooperation reasonably requested by Buyer that is reasonably necessary in arranging, obtaining and syndicating the Debt Financing, if any (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere cooperate with the operations of the Group Companies), including as promptly as reasonably practical, (a) furnishing Buyer other Party in connection with the Required Financial Information arrangement, syndication and other pertinent information regarding the Group Companies obtaining of a Financing as may be reasonably requested by requested. Such cooperation shall include: (i) furnishing, or causing to be furnished to, the other Party and any Financing sources such information regarding the Company and its Subsidiaries, on the one hand, or the Buyer for on the completion of the Debt Financingother hand, as may be reasonably requested, (bii) participating causing their respective management teams, with appropriate seniority and expertise, to participate in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary meetings, lender presentations, due diligence sessions (including accounting due diligence sessions) , drafting sessions, road shows and sessions meetings with rating agencies in connection with the Debt Financing to the extent reasonable and customary for financings of such type, (c) reasonably assisting in the preparation of (i) customary bank information memoranda, lender and investor presentations, offering documents, offering or private placement memoranda and other similar marketing documents and due diligence efforts for the Debt Financing and (ii) customary authorization and representation letters, each as required in connection with the Debt Financing, authorizing the distribution of information to prospective lenders and containing a representation that the public side of such documents, if any, do not include any information about any Group Company or any securities of any Group Company that would constitute material non-public information within the meaning of the United States federal and state securities laws if any Group Company were a public reporting company, (d) using reasonable best efforts to cause the Company’s independent registered accounting firm to provide customary assistanceratings agencies, including (i) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) in connection with any capital markets transaction comprising a part of the Debt Financing, (ii) providing customary consents to the inclusion of their audit report in respect of any financial statements of the Company direct contact between senior management and the Company Subsidiaries in any offering documents relating to the Debt actual and potential Financing sources and (iii) reasonable assistance and cooperation to Buyer with respect to any auditor due diligence, (e) subject to and conditioned on the occurrence of the Closing, the taking of customary corporate actions reasonably necessary to permit the consummation of and funding of the Debt Financing, (f) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth in any definitive document relating to the Debt Financing to the extent satisfaction of such condition requires the cooperation of, potential lenders or is within the control of, the Group Companies, (g) delivering to Buyer at least three (3) Business Days prior to the Closing all such documentation and information as is reasonably requested in writing by Buyer at least ten (10) Business Days prior to the Closing to the extent required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act and the requirements of 31 C.F.R. §1010.230, (h) facilitating and assisting investors in the preparation and delivery of any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents relating to the Debt Financing relating to the Group Companies, and their respective businesses to be included in the definitive documents relating to the Debt Financing, and assist with the execution and delivery of the same, in each case, solely to the extent reasonable and customary for financings of such type, (i) cooperating with internal and external counsel of Buyer 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 Debt Financing, in each case, solely upon reasonable advance notice and at mutually agreed times, (iii) providing assistance (A) to prepare offering documents and other marketing materials of a type customarily used for the type of financing proposed and (B) to cooperate with marketing efforts for the Financing as reasonably requested and (iv) facilitating the execution and delivery at the Closing of definitive documents related to the Financing; provided, in each case in clauses (i) through (iv) above, that nothing in this Section 6.14 shall require cooperation to the extent reasonable and customary for financings of such type, and that it would (jA) obtaining and providing documents to Buyer (including draft payoff letters) relating to the repayment of the Indebtedness and the release of related guarantees and Liens in accordance with the terms of this Agreement. The Company hereby consents, on behalf of itself and the Group Companies, to the use of the logos of the Group Companies in connection with the Debt Financing; provided that such logos are used solely in a manner that is not intended to, nor is reasonably likely to, harm or disparage the Company’s or any of its Affiliates’ reputation or goodwill.
8.11.2. Notwithstanding anything in this Agreement to the contrary, (a) no Group Company nor any of their respective Representatives shall be required, under the provisions of this Section 8.11 or otherwise in connection with the Debt Financing, to pay any commitment or other similar fee or enter into any binding agreement (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) or commitment or incur any other actual or potential liability or obligation in connection with the Debt Financing prior to the Closing that is not advanced by Buyer, (b) no Group Company or any of their respective Representatives, managers, officers or employees shall be required to execute or enter into, perform or authorize any agreement with respect to the Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) that is not contingent upon the Closing or that would be effective prior to the Closing Date, (c) no Representative, manager, officer or employee of any Group Company shall be required to deliver any certificate or take any other action pursuant to this Section 8.11 to the extent any such action would reasonably be expected to result in personal liability to such Representative, manager, officer or employee, (d) no Group Company or their respective Representatives shall be required to take any action that would reasonably be expected, in the reasonable judgment of the Company, to conflict with, or result in any violation or breach of, any applicable Laws, any organizational documents of any Group Company, any contract or obligations of confidentiality (not created in contemplation hereof) binding on any Group Company, (e) no Group Company or any of their respective Representatives shall be required to take any action that would cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this AgreementAgreement or (B) require a Party to take any action that would reasonably be expected to conflict with or violate any Legal Requirement, or result in the material contravention of, or result in a material violation or breach of, or material default under, any Disclosed Contract.
(fb) no Group The Company hereby consents to the use of all of its and its Subsidiaries’ corporate logos in connection with the marketing of the Financing; provided, that such logos are used solely in a manner that is not intended to or would reasonably be expected to harm or disparage the Company or any of their respective Representatives shall be required to make any representation, warranties its Subsidiaries or certifications as to which, the Company has, in its good faith, determined is not true, (g) no Group Companies reputation or their respective Representatives shall be required to provide, and the Buyer will be solely responsible for the preparation of: (1) pro forma financial information; (2) any description of all or any component of the Debt Financing; or (3) projections, risk factors or other forward-looking statements relating to all or any component of the Debt Financing; and (h) no Group Company shall be required to provide access to or disclose information that the Company determines would jeopardize any attorney–client privilege or other similar privilege goodwill of the Company or any of its Subsidiaries. Promptly upon request .
(c) Other than working capital loans made by the CompanyFounders to Buyer as provided for in Buyer’s Final Prospectus, Xxxxx will reimburse neither Buyer, on the Company for any reasonable costs and expenses (including reasonable attorneys’ fees) incurred by one hand, nor Seller or the CompanyAcquired Companies, on the Company Subsidiaries other hand, shall enter into or any consummate a Financing without the prior written consent of their Representatives in connection with Buyer or Seller, as applicable, such consent not to be unreasonably withheld, conditioned, or delayed; provided, however, that Seller shall be entitled to enter into or consummate the cooperation third party Financings without prior written consent of the CompanyBuyer provided that such Financing is on terms substantially similar to those set out in Schedule 6.14(c), or should that not be the Company Subsidiaries and their Representatives contemplated by this Section 8.11. Except in the case of fraud or a breach of this Agreementcase, Buyer shall indemnify, defend, and hold harmless the Group Companies and their respective Representatives from and against any and all losses, damages, awards, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecution, investigation, defense or settlement of any of the foregoing) and other amounts suffered or incurred by them in connection with if such Financing: (i) any action taken by them at has the request nature or elements of Buyer pursuant to this Section 8.11 a loan or in connection with the arrangement of the Debt Financing credit facility, it is on commercially reasonable terms customary for such loans or facilities, or (ii) any information utilized in connection therewithhas the nature or elements of an equity investment, and the foregoing obligations shall survive termination it has an effective per-share price for Buyer Ordinary Shares of this Agreement and the occurrence of the Closing. In addition, no action, liability or obligation of the Company, any of the Company Subsidiaries or any of their respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to any Debt Financing (other less than the execution of per share amount held in the authorization letters referred to in clause (c)(ii) of Section 8.11.1) will be effective until Trust Fund on the Closing Date. All material, non-public information regarding the Group Companies provided to Buyer or any of its Representatives pursuant to this Section 8.11 shall be kept confidential by them in accordance with the Confidentiality Agreement except for disclosure to potential investors as required in connection with the Debt Financing subject to customary confidentiality protections. Notwithstanding anything to the contrary, the Company shall be deemed to have complied with this Section 8.11 for all purposes of this Agreement (including Article 6 and Article 7) unless the Debt Financing has not been obtained primarily as a result of the Company’s Willful Breach of its obligations under this Section 8.11. Notwithstanding anything herein to the contrary, Xxxxx acknowledges and agrees that obtaining any Debt Financing is not a condition to the Closing.
Appears in 1 contract
Samples: Sale and Purchase Agreement (HL Acquisitions Corp.)
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (xa) provide Seller and the Company with written notice that such Debt Financing has been obtained and (y) deliver (or cause to be delivered) to Seller and the Company true, correct and complete copies of all arrangements pursuant to which any Financing Parties shall have committed to provide any portion of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further that, in no event shall the receipt of such Debt Financing be a condition to Closing and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. Prior to the ClosingClosing Date, subject to Section 8.11.2, the Company Seller shall use its reasonable best efforts toto provide, and shall cause the Group Companies and use reasonable best efforts to cause the Company Subsidiaries and its and their respective Representatives toto use reasonable best efforts to provide, in each case on a timely basis, to Purchaser, at BuyerPurchaser’s sole expense, provide to Buyer such all cooperation reasonably requested by Buyer that is reasonably necessary Purchaser in arranging, obtaining and syndicating the Debt Financing, if any (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere connection with the operations of the Group Companies)arrangement, including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information syndication and other pertinent information regarding the Group Companies as may be reasonably requested by Buyer for the completion consummation of the Debt Financing, including using reasonable best efforts to:
(bi) participating promptly furnish to Purchaser and its Debt Financing Sources such customary reasonably available pertinent financial and other information as Purchaser shall reasonably request in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies in connection with order to consummate the Debt Financing Financing;
(ii) provide customary reasonably available information about the Group Companies to the extent Purchaser promptly following reasonable and customary for financings of such type, (c) reasonably assisting request to be used in the preparation of (i) customary materials for rating agency presentations, bank information memoranda, lender and investor presentations, offering documents, offering or private placement memoranda and other similar marketing documents and due diligence efforts for the Debt Financing and (ii) customary authorization and representation letters, each as required in connection with the Debt Financing;
(iii) promptly following reasonable request, authorizing the distribution of provide Purchaser with all customary reasonably available financial information to prospective lenders and containing a representation that the public side of such documents, if any, do not include any information about any Group Company or any securities of any Group Company that would constitute material non-public information within the meaning of the United States federal and state securities laws if any Group Company were a public reporting company, (d) using reasonable best efforts to cause the Company’s independent registered accounting firm to provide customary assistance, including (i) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) financial data in connection with any capital markets transaction comprising a part Purchaser’s preparation of pro forma financial information, financial statements and other pro forma financial data of the Debt Financing, (ii) providing customary consents to the inclusion of their audit report in respect of any financial statements of the Company and the Company Subsidiaries Group Companies; provided that Seller shall not be responsible in any offering documents manner for information relating to the Debt Financing proposed debt and equity capitalization that is required for such pro forma financial information;
(iiiiv) reasonable assistance execute and cooperation to Buyer with respect to deliver as of the Closing any auditor due diligencepledge and security documents, other definitive financing documents or other certificates or documents as may be reasonably requested by Purchaser and otherwise facilitate the pledging of collateral;
(ev) take all corporate actions, subject to and conditioned on the occurrence of the Closing, the taking of customary corporate actions reasonably requested by Purchaser that are necessary to permit the consummation of and funding of the Debt Financing, ; and
(fvi) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth in any definitive document relating to the Debt Financing to the extent satisfaction of such condition requires the cooperation of, or is within the control of, provide all documentation and other information about the Group Companies, (g) delivering to Buyer at least three (3) Business Days prior to the Closing all such documentation and information Companies as is reasonably requested in writing by Buyer at least ten (10) Business Days prior to the Closing to the extent required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, regulations including the USA PATRIOT Act Act; provided that such requested cooperation shall not unreasonably interfere with the ongoing operations of Seller and the requirements of 31 C.F.R. §1010.230Group Companies; provided, (hfurther, that in no event shall Seller or the Group Companies or their respective Representatives be required in connection with the cooperation contemplated by this Section 6.12(a) facilitating and assisting to bear any cost or expense, pay any fee, enter into any definitive agreement or incur any other liability in the preparation and delivery of any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents relating to connection with the Debt Financing relating prior to the Closing. Further, such assistance shall not include any actions that Seller reasonably believes could reasonably be expected to (x) result in a violation of any confidentiality arrangement or material agreement (not entered into in contemplation thereof) or the loss of any legal or other applicable privilege or (y) cause the Seller or any of the Group Companies or any of their respective Affiliates or any of their respective employees, directors, officers or managers to incur any actual or potential liability in connection with the arranging, marketing or syndication of the Debt Financing or such assistance (except, in the case of the Group Companies, and any such liability after the Closing). Nothing in this agreement shall require any cooperation to the extent that it would require the Seller or any of the Group Companies or any of their respective businesses employees, directors, officers or managers to be included in the definitive documents relating (i) pay or agree to pay any commitment or other fees or pay, incur or reimburse any expenses prior to the Debt Financing, and assist with the execution and delivery of the sameClosing Date (except, in each case, solely to the extent reasonable and customary for financings of such typesubject to concurrent reimbursement by Purchaser), (iii) cooperating with internal and external counsel approve the execution or delivery of Buyer any document, certificate, resolution or consent in connection with providing customary backthe Debt Financing that is not contingent upon the Closing or (iii) take any action that would conflict with, violate or result in a breach of or default under any organization documents of Seller or of any of the Group Companies or any material Contract or Law. Purchaser shall promptly, upon request by the Seller, reimburse Seller and the Group Companies for all reasonable and documented out-up certificates of-pocket costs and factual information regarding any legal opinion that such counsel may be required to deliver expenses (including reasonable attorneys’ fees and expenses) incurred by them and their respective Representatives in connection with the Debt Financing, including the cooperation contemplated by this Section 6.12(a), and shall indemnify and hold harmless the Seller and the Group Companies and their respective Representatives from and against any and all Damages suffered or incurred by any of them in connection with the arrangement of the Debt Financing and any information used in connection therewith, in each case, solely case other than to the extent reasonable any of the foregoing arises from intentional fraud with respect to any of the representations and customary for financings warranties of such type, and Seller in this Agreement.
(jb) obtaining and providing documents to Buyer (including draft payoff letters) relating Seller hereby consents to the repayment use of the Indebtedness and the release of related guarantees and Liens in accordance with the terms of this Agreement. The Company hereby consents, on behalf of itself its and the Group Companies, to the use of the ’ logos of the Group Companies solely in connection with the Debt Financing; provided that such logos are used solely in a manner that does not, and is not intended to, nor is or reasonably likely to, harm or disparage the CompanySeller’s or any of its Affiliatesthe Group Companies’ reputation or goodwill.
8.11.2. Notwithstanding anything in this Agreement goodwill and will comply with Seller’s or the Group Companies’ usage requirements to the contrary, (a) no Group Company nor any of their respective Representatives shall be required, under the provisions of this Section 8.11 or otherwise in connection with the Debt Financing, extent made available to pay any commitment or other similar fee or enter into any binding agreement (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) or commitment or incur any other actual or potential liability or obligation in connection with the Debt Financing Purchaser prior to the Closing that is not advanced by Buyer, (b) no Group Company or any date of their respective Representatives, managers, officers or employees shall be required to execute or enter into, perform or authorize any agreement with respect to the Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) that is not contingent upon the Closing or that would be effective prior to the Closing Date, this Agreement.
(c) no Representative, manager, officer or employee of any Group Company shall be required to deliver any certificate or take any other action pursuant to this Section 8.11 to the extent any such action would reasonably be expected to result in personal liability to such Representative, manager, officer or employee, (d) no Group Company or their respective Representatives shall be required to take any action that would reasonably be expected, in the reasonable judgment of the Company, to conflict with, or result in any violation or breach of, any applicable Laws, any organizational documents of any Group Company, any contract or obligations of confidentiality (not created in contemplation hereof) binding on any Group Company, (e) no Group Company or any of their respective Representatives shall be required to take any action that would cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement, (f) no Group Company or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, the Company has, in its good faith, determined is not true, (g) no Group Companies or their respective Representatives shall be required to provide, and the Buyer will be solely responsible for the preparation of: (1) pro forma financial information; (2) any description of all or any component of the Debt Financing; or (3) projections, risk factors or other forward-looking statements relating to all or any component of the Debt Financing; and (h) no Group Company shall be required to provide access to or disclose information that the Company determines would jeopardize any attorney–client privilege or other similar privilege of the Company or any of its Subsidiaries. Promptly upon request by the Company, Xxxxx will reimburse the Company for any reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Company, the Company Subsidiaries or any of their Representatives in connection with the cooperation of the Company, the Company Subsidiaries and their Representatives contemplated by this Section 8.11. Except in the case of fraud or a breach of this Agreement, Buyer shall indemnify, defend, and hold harmless the Group Companies and their respective Representatives from and against any and all losses, damages, awards, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecution, investigation, defense or settlement of any of the foregoing) and other amounts suffered or incurred by them in connection with (i) any action taken by them at the request of Buyer pursuant to this Section 8.11 or in connection with the arrangement of the Debt Financing or (ii) any information utilized in connection therewith, and the foregoing obligations shall survive termination of this Agreement and the occurrence of the Closing. In addition, no action, liability or obligation of the Company, any of the Company Subsidiaries or any of their respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to any Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) will be effective until the Closing Date. All material, non-public information regarding the Group Companies provided to Buyer or any of its Representatives pursuant to this Section 8.11 shall be kept confidential by them in accordance with the Confidentiality Agreement except for disclosure to potential investors as required in connection with the Debt Financing subject to customary confidentiality protections. Notwithstanding anything to the contrary, the Company shall be deemed to have complied with this Section 8.11 for all purposes of this Agreement (including Article 6 and Article 7) unless the Debt Financing has not been obtained primarily as a result of the Company’s Willful Breach of its obligations under this Section 8.11. Notwithstanding anything herein to the contrary, Xxxxx Purchaser acknowledges and agrees that the obtaining any of the Debt Financing is not a condition to the ClosingClosing and reaffirms its obligation to consummate the transactions contemplated by this Agreement irrespective and independently of the availability of the Debt Financing, subject to fulfillment or waiver of the conditions set forth in Article VII.
(d) Notwithstanding the foregoing or anything herein to the contrary, the obligations of Seller and the Group Companies set forth in Section 6.12(a) are the sole obligations of Seller and the Group Companies with respect to the Debt Financing and such obligations shall not be used after the Closing as a basis for any claim of any breach by the Seller or the Group Companies.
Appears in 1 contract
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (xa) provide Seller and the Company with written notice that such Debt Financing has been obtained and (y) deliver (or cause to be delivered) to Seller and the Company true, correct and complete copies of all arrangements pursuant to which any Financing Parties shall have committed to provide any portion of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further that, in no event shall the receipt of such Debt Financing be a condition to Closing and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. Prior to the Closing, subject to Section 8.11.2, the Company shall use reasonable best efforts touse, and shall cause its Subsidiaries to use, and shall use its commercially reasonable best efforts to cause the respective Representatives of the Company Subsidiaries and its and their respective Representatives toSubsidiaries to use, in each case at Buyer’s sole expensecase, commercially reasonable efforts to provide to Buyer such Buyer, all cooperation reasonably requested by Buyer that is reasonably necessary in arranging, obtaining and syndicating connection with the Debt arrangement of the Financing, if any including the following:
(provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the operations of the Group Companies), including as promptly as reasonably practical, (ai) furnishing Buyer with and the Financing Sources the Required Financial Information Statements and such other pertinent information regarding the Group Companies Company and its Subsidiaries as is reasonably requested by Buyer or its Financing Sources to consummate the Financing (it being understood that no financial statements shall be required other than the Required Financial Statements);
(ii) assisting with the preparation of materials for any rating agency presentations, bank information memoranda and similar documents required in connection with the Financing;
(iii) executing and providing documents as may be reasonably requested by Buyer for the completion of the Debt Financing, (b) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies in connection with the Debt Financing to the extent reasonable and customary for financings of such type, (c) reasonably assisting in the preparation of (i) customary bank information memoranda, lender and investor presentations, offering documents, offering or private placement memoranda and other similar marketing documents and due diligence efforts for the Debt Financing and (ii) customary authorization and representation letters, each as required in connection with the Debt Financing, authorizing the distribution of information to prospective lenders and containing a representation that the public side of such documents, if any, do not include any information about any Group Company or any securities of any Group Company that would constitute material non-public information within the meaning of the United States federal and state securities laws if any Group Company were a public reporting company, (d) using reasonable best efforts to cause the Company’s independent registered accounting firm to provide customary assistanceBuyer, including (i) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) in connection with any capital markets transaction comprising a part of the Debt Financing, (ii) providing customary consents to the inclusion of their audit report in respect of any financial statements of the Company and the Company Subsidiaries in any offering documents relating to the Debt Financing and (iii) reasonable assistance and cooperation to Buyer with respect to any auditor due diligence, (e) subject to and conditioned on the occurrence of the Closing, the taking of customary corporate actions reasonably necessary to permit the consummation of and funding of the Debt Financing, (f) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth in any definitive document relating to the Debt Financing to the extent satisfaction of such condition requires the cooperation of, or is within the control of, the Group Companies, (g) delivering to Buyer at least three (3) Business Days prior to the Closing all such documentation and information as is if reasonably requested in writing by Buyer at least ten (10) Business Days prior to Closing, providing at least five (5) Business Days prior to the Closing to the extent Date, all documentation and other information required by U.S. regulatory authorities under applicable “know your know-your-customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act Act, Title III of Pub. L. 107-56 (signed into law October 26, 2001);
(iv) reasonably cooperating with the marketing efforts of Buyer and the requirements Financing Sources for all or any portion of 31 C.F.R. §1010.230, the Financing;
(hv) facilitating and assisting using commercially reasonable efforts to satisfy the conditions precedent set forth in the preparation and delivery of Commitment Letter or any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents documentation relating to the Debt Financing relating to the Group Companiesextent the satisfaction of such conditions requires the cooperation of or is within the control of the Company or any of the Subsidiaries of the Company; and
(vi) using commercially reasonable efforts to cooperate with the due diligence investigation of the Financing Sources, to the extent customary and reasonable and not unreasonably interfering with the businesses of the Company or any of its Subsidiaries; provided that nothing herein shall require such cooperation to the extent it would interfere unreasonably with the businesses or operations of the Company or its Subsidiaries; and provided, further, that neither the Company nor any of its Subsidiaries or their respective Representatives shall (1) be required to pay any commitment or other similar fee or incur any other cost or expense that is not reimbursed by Buyer in connection with the Financing pursuant to below or to pass resolutions or consents to approve or authorize the execution of the Financing (other than any continuing officers or directors that will remain after the Closing Date), (2) have any liability or obligation under any document, agreement or certificate related to the Financing unless and until the Closing occurs, (3) be required to prepare or provide (x) projections, pro forma financial statements or pro forma financial adjustments related to the Financing or (y) any information that is not readily available to the Company based on its current method of recordkeeping (it being understood that the Company will provide the Required Financial Statements), (4) be required to take any action which would cause it to (x) violate any Contract to which it is a party (including this Agreement), (y) violate any Law applicable to it or (z) fail to satisfy any condition precedent set forth in Section 2.2(a) or 2.2(b); or (5) be required to execute and deliver any authorization letter, solvency certificate or statement of beneficial ownership. For the avoidance of doubt, any cooperation provided under this Section 7.14 shall be at the sole expense of Buyer.
(b) Buyer shall, promptly upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs (including reasonable and documented attorney’s fees and expenses) incurred by the Company or its Subsidiaries in connection with the cooperation described above in Section 7.14(a). Buyer shall indemnify and hold harmless the Company and its Subsidiaries and their respective businesses to be included Representatives from and against any and all liabilities or losses suffered or incurred by them in the definitive documents relating to the Debt Financing, and assist connection with the execution and delivery arrangement of the sameFinancing and any information utilized in connection therewith (other than information provided by the Company or its Subsidiaries), in each case, solely except to the extent reasonable and customary for financings such liabilities or losses are suffered or incurred directly as a result of such typethe bad faith, (i) cooperating with internal and external counsel gross negligence, or willful misconduct by the Company or any of Buyer 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 Debt Financingits Subsidiaries or, in each case, solely to the extent reasonable and customary for financings of such type, and their respective Representatives.
(jc) obtaining and providing documents to Buyer (including draft payoff letters) relating to the repayment of the Indebtedness and the release of related guarantees and Liens in accordance with the terms of this Agreement. The Company hereby consents, on behalf of itself and the Group Companies, consents to the use of the logos of the Group Companies Company and its Subsidiaries in connection with the Debt FinancingFinancing and authorizes the Financing Sources to download copies of such logos from its website for such purposes; provided provided, that such logos are used solely in a manner that is not intended to, to nor is reasonably likely to, to harm or disparage the Company’s Company or any of its Affiliates’ Subsidiaries or the reputation or goodwill.
8.11.2. Notwithstanding anything in this Agreement to the contrary, (a) no Group Company nor any of their respective Representatives shall be required, under the provisions of this Section 8.11 or otherwise in connection with the Debt Financing, to pay any commitment or other similar fee or enter into any binding agreement (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) or commitment or incur any other actual or potential liability or obligation in connection with the Debt Financing prior to the Closing that is not advanced by Buyer, (b) no Group Company or any of their respective Representatives, managers, officers or employees shall be required to execute or enter into, perform or authorize any agreement with respect to the Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) that is not contingent upon the Closing or that would be effective prior to the Closing Date, (c) no Representative, manager, officer or employee of any Group Company shall be required to deliver any certificate or take any other action pursuant to this Section 8.11 to the extent any such action would reasonably be expected to result in personal liability to such Representative, manager, officer or employee, (d) no Group Company or their respective Representatives shall be required to take any action that would reasonably be expected, in the reasonable judgment of the Company, to conflict with, or result in any violation or breach of, any applicable Laws, any organizational documents of any Group Company, any contract or obligations of confidentiality (not created in contemplation hereof) binding on any Group Company, (e) no Group Company or any of their respective Representatives shall be required to take any action that would cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement, (f) no Group Company or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, the Company has, in its good faith, determined is not true, (g) no Group Companies or their respective Representatives shall be required to provide, and the Buyer will be solely responsible for the preparation of: (1) pro forma financial information; (2) any description of all or any component of the Debt Financing; or (3) projections, risk factors or other forward-looking statements relating to all or any component of the Debt Financing; and (h) no Group Company shall be required to provide access to or disclose information that the Company determines would jeopardize any attorney–client privilege or other similar privilege goodwill of the Company or any of its Subsidiaries. Promptly upon request by the Company, Xxxxx will reimburse the Company for any reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Company, the Company Subsidiaries or any of their Representatives in connection with the cooperation of the Company, the Company Subsidiaries and its or their Representatives contemplated by this Section 8.11. Except in the case of fraud or a breach of this Agreement, Buyer shall indemnify, defend, and hold harmless the Group Companies and their respective Representatives from and against any and all losses, damages, awards, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecution, investigation, defense or settlement of any of the foregoing) and other amounts suffered or incurred by them in connection with (i) any action taken by them at the request of Buyer pursuant to this Section 8.11 or in connection with the arrangement of the Debt Financing or (ii) any information utilized in connection therewith, and the foregoing obligations shall survive termination of this Agreement and the occurrence of the Closing. In addition, no action, liability or obligation of the Company, any of the Company Subsidiaries or any of their respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to any Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) will be effective until the Closing Date. All material, non-public information regarding the Group Companies provided to Buyer or any of its Representatives pursuant to this Section 8.11 shall be kept confidential by them in accordance with the Confidentiality Agreement except for disclosure to potential investors as required in connection with the Debt Financing subject to customary confidentiality protections. Notwithstanding anything to the contrary, the Company shall be deemed to have complied with this Section 8.11 for all purposes of this Agreement (including Article 6 and Article 7) unless the Debt Financing has not been obtained primarily as a result of the Company’s Willful Breach of its obligations under this Section 8.11. Notwithstanding anything herein to the contrary, Xxxxx acknowledges and agrees that obtaining any Debt Financing is not a condition to the Closingmarks.
Appears in 1 contract
Samples: Merger Agreement (F5 Networks, Inc.)
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (xa) provide Seller and the Company with written notice that such Debt Financing has been obtained and (y) deliver (or cause to be delivered) to Seller and the Company true, correct and complete copies of all arrangements pursuant to which any Financing Parties shall have committed to provide any portion of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further that, in no event shall the receipt of such Debt Financing be a condition to Closing and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. Prior to the Closing, subject to Section 8.11.2, the Company shall use reasonable best efforts toto provide to Buyer, and shall use reasonable best efforts to cause the Company Subsidiaries and its and their respective Representatives to, in each case at Buyer’s sole expense, provide to Buyer such all cooperation reasonably requested by Buyer that is reasonably necessary in arranging, obtaining and syndicating connection with the Debt Financing, if arrangement by Buyer or Merger Sub of any debt financing (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the ongoing business or operations of the Group CompaniesCompany or its Subsidiaries) incurred in connection with the transactions contemplated hereunder (including the marketing efforts in connection therewith), the repayment and discharge of any existing indebtedness of the Company or its Subsidiaries (other than the payment of amounts required to repay and discharge such existing indebtedness), and the incurrence or refinancing of indebtedness by Buyer, as may be reasonably requested by Buyer, including by (i) furnishing Buyer and its financing sources as promptly as reasonably practical, (a) furnishing Buyer practicable with the Required Financial Information such financial and other pertinent information regarding the Group Companies Company and its Subsidiaries as may be reasonably requested by Buyer, including access to and cooperation with the Company’s accountants (subject to the execution of customary work paper access letters if requested); provided, however, that the Company shall not be required to provide, and Buyer for shall be solely responsible for, (A) the completion 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, (B) any description of all or any component of such financing, including any such description to be included in any liquidity or capital resources disclosure or any “description of notes”, (C) projections, risk factors or other forward-looking statements relating to all or any component of such financing, (D) subsidiary financial statements or any other information of the Debt Financingtype required by Rule 3-09, Rule 3-10 or Rule 3-16 of Regulation S-X or (E) Compensation Disclosure and Analysis required by Item 402(b) of Regulation S-K, (bii) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) and sessions with for rating agencies in connection with the Debt Financing to the extent reasonable and customary for financings of such type, (c) reasonably assisting in the preparation of (i) customary bank information memoranda, lender and investor agency presentations, offering documents, offering circulars or private placement memoranda memoranda, bank information memoranda, prospectuses and other similar marketing documents and due diligence efforts for the Debt Financing and (ii) customary authorization and representation letters, each as required in connection with any debt financing by Buyer (provided that the Debt Financing, authorizing the distribution scope and nature of financial information to be provided by the Company shall be subject to the limitations set forth in the foregoing clause (i)), (iii) during normal business hours and upon reasonable advance notice permitting Buyer’s financing sources and other prospective lenders and containing a representation that the public side of such documents, if any, do not include any information about any Group Company or any securities of any Group Company that would constitute material non-public information within the meaning of the United States federal and state securities laws if any Group Company were a public reporting company, (d) using reasonable best efforts opportunity to cause evaluate the Company’s independent registered current assets, equipment, cash management and accounting firm system, policies and procedures relating thereto for the purpose of establishing collateral arrangements as of the Closing (including providing reasonable access to provide customary assistanceallow such lenders (or their agents or representatives) to conduct field examinations and appraisals), (iv) reasonably cooperating with Buyer’s financing sources and their respective agents with respect to their due diligence, including (i) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) by giving reasonable access to documentation reasonably requested by Persons in connection with any capital markets transaction comprising a part of the Debt Financingfinancing transactions, (iiv) providing customary consents furnishing Buyer and Buyer’s financing sources at least five (5) days prior to the inclusion of their audit report in respect of Closing with all documentation and other information required by any financial statements of the Company and the Company Subsidiaries in any offering documents relating to the Debt Financing and (iii) reasonable assistance and cooperation to Buyer Governmental Authority with respect to any auditor due diligence, (e) subject to and conditioned on the occurrence of the Closing, the taking of customary corporate actions reasonably necessary to permit the consummation of and funding of the Debt Financing, (f) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth in any definitive document relating to the Debt Financing to the extent satisfaction of such condition requires the cooperation of, or is within the control of, the Group Companies, (g) delivering to Buyer at least three (3) Business Days prior to the Closing all such documentation and information as is reasonably requested in writing by Buyer at least ten (10) Business Days prior to the Closing to the extent required by U.S. regulatory authorities debt financing under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act and Act, provided each request therefore was made at least ten (10) days prior to the requirements of 31 C.F.R. §1010.230Closing, (hvi) arranging for customary pay-off letters, lien terminations and instruments of discharge to be delivered at least two (2) Business Days prior to Closing providing for the pay-off, discharge and termination at the Closing of all existing indebtedness of the Company or any of its Subsidiaries contemplated to be paid off, discharged and satisfied and/or terminated at the Closing, and (vii) facilitating and assisting in the preparation and delivery of any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents relating to the Debt Financing relating to the Group Companies, and their respective businesses to be included in the definitive documents relating to the Debt Financing, and assist with the execution and delivery at the Closing of the samedefinitive documents related to any debt financing, in each caseincluding, solely to the extent reasonable not prohibited or restricted under applicable Law or any Contract of the Company or any of its Subsidiaries, the pledging of collateral and customary for financings of providing guarantees to Buyer’s financing sources at the Closing; provided that no such type, (i) cooperating with internal and external counsel of Buyer in connection with providing customary back-up certificates and factual information regarding any legal opinion that such counsel may pledge or guarantee shall be required to deliver in connection with the Debt Financing, in each case, solely effective prior to the extent reasonable and customary for financings of such type, and (j) obtaining and providing documents to Buyer (including draft payoff letters) relating to the repayment of the Indebtedness and the release of related guarantees and Liens in accordance with the terms of this AgreementClosing. The Company hereby consents, on behalf of itself and the Group Companies, consents to the use of the logos of the Group Companies Company and its Subsidiaries in connection with the Debt Financing; syndication or marketing of any debt financing, provided that such logos are not used solely in a manner that is not intended to, nor is would reasonably likely to, be expected to harm or disparage the Company’s , its Subsidiaries or their marks.
(b) Notwithstanding anything to the contrary in this Section 7.7, neither the Company nor any of its Affiliates’ reputation Subsidiaries or goodwill.
8.11.2. Notwithstanding anything in this Agreement to the contrary, Affiliates (a) no Group Company nor any of their respective Representatives directors, officers, employees or other representatives) shall (i) be requiredrequired to undertake any obligation or execute any agreement including any credit or other agreements, under the provisions of this Section 8.11 pledge or otherwise security documents, or other certificates, legal opinions or documents in connection with the Debt Financing, to pay any commitment or other similar fee or enter into any binding agreement financing (other than the execution of the customary authorization letters referred to in clause (c)(ii) of Section 8.11.1) or commitment or incur any other actual or potential liability or obligation in connection with the Debt Financing prior to the Closing that is not advanced by Buyer, (bsyndication efforts) no Group Company or any of their respective Representatives, managers, officers or employees shall be required to execute or enter into, perform or authorize any agreement with respect to the Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) that is not contingent upon the Closing or that would be effective prior to the Closing Date, (c) and no Representative, manager, officer or employee obligation of any Group Company such Persons under any document, agreement or any other contract relating to any financing shall be operative unless and until the Effective Time occurs and (ii) be required to deliver adopt resolutions approving the agreements, documents and instruments pursuant to which the financing is obtained, (iii) be required to pay any certificate fee (including any commitment or take other fee) in connection with the any financing; (iv) be required to incur, and none of them shall have, any expense in connection with, or liability under, any loan agreement or any related document or any other action agreement or document or contract related to any financing prior to the Closing other than in respect of expenses or liability reimbursable or indemnifiable pursuant to this Section 8.11 7.7(b); (v) be required to take any action, based on the extent advice of its legal counsel, that would violate its organizational documents or any such action Laws or that would result in the contravention of, or that would reasonably be expected to result in personal liability to such Representative, manager, officer or employee, (d) no Group Company or their respective Representatives shall be required to take any action that would reasonably be expected, in the reasonable judgment of the Company, to conflict with, or result in any a violation or breach of, any applicable Lawsor a default under, any organizational documents of any Group Company, any contract or obligations of confidentiality (not created in contemplation hereof) binding on any Group Company, (e) no Group Company or any of their respective Representatives shall be required Contract to take any action that would cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement, (f) no Group Company or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, the Company has, in its good faith, determined is not true, (g) no Group Companies or their respective Representatives shall be required to provide, and the Buyer will be solely responsible for the preparation of: (1) pro forma financial information; (2) any description of all or any component of the Debt Financing; or (3) projections, risk factors or other forward-looking statements relating to all or any component of the Debt Financing; and (h) no Group Company shall be required to provide access to or disclose information that the Company determines would jeopardize any attorney–client privilege or other similar privilege of which the Company or any of its Subsidiaries is a party; (vi) have any obligation to provide any information, the disclosure of which is prohibited or restricted under applicable Law or is legally privileged; (vii) be required to deliver or obtain opinions of internal or external counsel (other than customary opinions of counsel in connection with the repayment or discharge of existing indebtedness of the Company or its Subsidiaries); or (viii) be required to waive or amend any terms of this Agreement or any other Contract that they are a party to. Promptly Buyer shall (x) promptly, upon request by the Company, Xxxxx will reimburse the Company for any all reasonable out-of-pocket costs and expenses (including reasonable and documented attorneys’ fees) incurred by the Company, the Company Subsidiaries or any of their Representatives its Subsidiaries in connection with the cooperation of the Company, the Company and its Subsidiaries and its and their Representatives representatives contemplated by this Section 8.11. Except in the case of fraud or a breach of this Agreement, Buyer shall indemnify, defend, 7.7 and (y) indemnify and hold harmless the Group Companies Company, its Subsidiaries and their respective Representatives directors, officers, employee and representatives from and against any and all damages, losses, damagescharges, awardsliabilities, finesclaims, penalties, expenses, fees, costsdemands, actions, demandssuits, judgmentproceedings, payments, judgments, settlements, assessments, deficiencies, Taxes, fines, fees, expenses (including interest, penalties, reasonable legal, consulting penalties and other professional fees costs and expenses and all amounts paid in prosecution, investigation, defense or settlement of any of the foregoing) and other amounts suffered or incurred by them in connection with the arrangement of any debt financing (i) other than to the extent arising from gross negligence, fraud or intentional misrepresentation by the Company or its Subsidiaries in connection with the debt financing). Neither the Company nor any action taken by them at the request of its Subsidiaries shall have any liability to Buyer or Merger Sub in respect of any financial statements, other financial information or data or other information provided pursuant to this Section 8.11 or in connection with the arrangement of the Debt Financing or (ii) any information utilized in connection therewith, and the foregoing obligations shall survive termination of this Agreement and the occurrence of the Closing. In addition, no action, liability or obligation of the Company, any of the Company Subsidiaries or any of their respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to any Debt Financing 7.7 (other than to the execution of extent arising from gross negligence, fraud or intentional misrepresentation by the authorization letters referred to in clause (c)(ii) of Section 8.11.1) will be effective until the Closing Date. All material, non-public information regarding the Group Companies provided to Buyer Company or any of its Representatives pursuant to this Section 8.11 shall be kept confidential by them in accordance with the Confidentiality Agreement except for disclosure to potential investors as required in connection with the Debt Financing subject to customary confidentiality protectionsSubsidiaries). Notwithstanding anything to the contrarycontrary in this Agreement, the Company condition set forth in Section 9.2(b), as it applies to the Company’s obligations under this Section 7.7, shall be deemed to have complied with this Section 8.11 for all purposes of this Agreement (including Article 6 and Article 7) satisfied unless the Debt Financing Company has not been obtained primarily as a result of the Company’s Willful Breach of knowingly and willfully materially breached its obligations under this Section 8.11. Notwithstanding anything herein 7.7 and such breach has been the primary cause of the financing not being obtained.
(c) Buyer shall take all actions reasonably necessary to obtain debt financing sufficient to fund amounts payable under this Agreement at the Closing, including Sections 3.2 and 3.4, to the contrary, Xxxxx acknowledges extent such debt financing is necessary or reasonably anticipated to be necessary for Buyer to consummate the transactions contemplated by this Agreement and agrees that obtaining any Debt Financing is not a condition to the Closingperform its obligations under this Agreement.
Appears in 1 contract
Samples: Merger Agreement (United Rentals North America Inc)
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (xi) provide Seller and the Company with written notice that such Debt Financing has been obtained and (y) deliver (or cause to be delivered) to Seller and the Company true, correct and complete copies of all arrangements pursuant to which any Financing Parties shall have committed to provide any portion of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further that, in no event shall the receipt of such Debt Financing be a condition to Closing and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. Prior to the Closing, subject to Section 8.11.2, the Company shall use its reasonable best efforts toto provide to Parent and Merger Sub, and shall cause each of its Subsidiaries to use its reasonable best efforts to provide, and shall use reasonable best efforts to cause the Company Subsidiaries its Representatives, including legal and its and their respective Representatives toaccounting, to provide (in each case at BuyerParent’s sole expense, provide to Buyer such ) all cooperation reasonably requested by Buyer Parent that is reasonably necessary customary in arranging, obtaining and syndicating the Debt Financing, if any (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere connection with the operations of the Group Companies), including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies as may be reasonably requested by Buyer for the completion arrangement of the Debt Financing, (b) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentationsincluding, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies in connection with the Debt Financing but not limited to the extent reasonable and customary for financings of such type, (c) reasonably assisting in the preparation of (i) customary bank information memoranda, lender and investor presentations, offering documents, offering or private placement memoranda and other similar marketing documents and due diligence efforts for the Debt Financing and (ii) customary authorization and representation letters, each as required in connection with the Debt Financing, authorizing the distribution of information to prospective lenders and containing a representation that the public side of such documents, if any, do not include any information about any Group Company or any securities of any Group Company that would constitute material non-public information within the meaning of the United States federal and state securities laws if any Group Company were a public reporting company, (d) using reasonable best efforts to cause the Company’s independent registered accounting firm to provide customary assistanceto, including (i) providing customary comfort letters assist in preparation for and participate (including and use commercially reasonable efforts to cause senior management to participate) in a reasonable number of meetings (but no more than two (2) in person “negative assurance comfortbank meetings” and “change period comfort”) in connection additional telephonic meetings at reasonably agreed times), due diligence sessions, drafting sessions, road shows, and presentations with any capital markets transaction comprising a part of prospective lenders and rating agencies, and otherwise using commercially reasonable efforts to cooperate with the marketing efforts for the Debt Financing, (ii) providing assist with the timely preparation of customary consents materials for bank information memoranda and ratings agency presentations (and assisting in the obtaining of corporate, credit and facility ratings from ratings agencies), and similar documents required to be delivered in connection with the Debt Commitment Letter as in effect on the date hereof (including executing a customary authorization letter to the inclusion extent required by the Debt Commitment Letter as in effect on the date hereof authorizing the distribution of their audit report in respect of any information about the Company and its Subsidiaries to prospective lenders), (iii) furnish Parent with the historical financial statements of the Company identified in paragraph 6 of Exhibit C of the Debt Commitment Letter as in effect on the date hereof (subject to the immediately following proviso, the “Required Financial Information”), (iv) provide Parent and the Company Subsidiaries Merger Sub with information reasonably necessary to complete customary perfection certificates and other customary loan documents as may be required in any offering documents relating to connection with the Debt Financing as may be reasonably requested by Parent or the Merger Sub, (v) assist Parent in delivering original stock certificates, if any, and original stock powers (or, if any, similar documents for limited liability companies) to the extent required on or prior to the Closing Date by the Debt Commitment Letter as in effect on the date hereof (including assisting in obtaining copies thereof prior to the Closing Date) and assist Parent in obtaining insurance certificates from the insurance policy underwriters of the Company and its Subsidiaries to the extent required on or prior to the Closing Date by the Debt Commitment Letter as in effect on the date hereof, and (iiivi) take reasonable assistance and cooperation to Buyer with respect to any auditor due diligencecorporate actions, (e) subject to and conditioned on only effective upon the occurrence of the Closing, the taking of customary corporate actions reasonably necessary to permit the consummation of and funding of the Debt Financing; provided, that the Company shall not be required to provide, or cause its Subsidiaries or Representatives to provide, cooperation under this Section 7.13(e) that: (fA) reasonably assisting unreasonably interferes with the ongoing business of the Company or its Subsidiaries; (B) causes any covenant, representation or warranty in Buyer’s efforts this Agreement to satisfy the conditions precedent be breached; (C) causes any condition set forth in Article VIII to fail to be satisfied or otherwise causes the breach of this Agreement; (D) requires the Company or its Subsidiaries, prior to the Closing, to pay any definitive document relating commitment or other similar fee or incur or become subject to any other liability or obligation in connection with the Debt Financing which is not otherwise funded or promptly reimbursed by Parent; (E) requires the Company and its Subsidiaries or their respective directors, officers, managers or employees to execute, deliver or enter into, or perform any agreement, document, certificate or instrument with respect to the Debt Financing and the directors and managers of the Company and its Subsidiaries shall not be required to adopt resolutions approving the agreements, documents and instruments pursuant to which the Debt Financing is obtained; (F) requires the Company or its Subsidiaries to take any action in violation or conflict with any of the Company’s or its Subsidiaries’ respective Organizational Documents or applicable Law (G) requires the delivery of opinions of external or internal counsel; (H) requires the Company or its Subsidiaries to provide access to or disclose information that would reasonably be expected to jeopardize attorney-client privilege or contravene Law or violate any Contract; and (I) requires the Company or its Subsidiaries to waive or amend any terms of this Agreement or any other Contract to which the Company or its Subsidiaries is a party. So long as requested by Parent at least ten (10) days prior to the extent satisfaction of such condition requires the cooperation of, or is within the control ofClosing Date, the Group CompaniesCompany will, (g) delivering to Buyer and will cause each of its Subsidiaries to, furnish Parent and the Merger Sub promptly, and in any event at least three two (32) Business Days prior to the Closing Date, all such documentation and other information as is reasonably requested in writing by Buyer at least ten (10) Business Days prior with respect to the Closing to the extent Company and its Subsidiaries that is required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including including, without limitation, the PATRIOT Act and the requirements of 31 C.F.R. §1010.230, (h) facilitating and assisting in the preparation and delivery of any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents relating to the Debt Financing relating to the Group Companies, and their respective businesses to be included in the definitive documents relating to the Debt Financing, and assist with the execution and delivery of the same, in each case, solely to the extent reasonable and customary for financings of such type, (i) cooperating with internal and external counsel of Buyer 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 Debt Financing, in each case, solely to the extent reasonable and customary for financings of such type, and (j) obtaining and providing documents to Buyer (including draft payoff letters) relating to the repayment of the Indebtedness and the release of related guarantees and Liens in accordance with the terms of this AgreementAct. The Company hereby consents, on behalf of itself and the Group Companies, consents to the use of the its and its Subsidiaries’ trademarks, service marks or logos of the Group Companies in connection with the Debt Financing; provided provided, that such trademarks, service marks or logos are used solely in a manner that is not intended to, nor is to or reasonably likely to, to harm or disparage the Company’s Company or any of its Affiliates’ Subsidiaries or the reputation or goodwill.
8.11.2. Notwithstanding anything in this Agreement to the contrary, (a) no Group Company nor any of their respective Representatives shall be required, under the provisions of this Section 8.11 or otherwise in connection with the Debt Financing, to pay any commitment or other similar fee or enter into any binding agreement (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) or commitment or incur any other actual or potential liability or obligation in connection with the Debt Financing prior to the Closing that is not advanced by Buyer, (b) no Group Company or any of their respective Representatives, managers, officers or employees shall be required to execute or enter into, perform or authorize any agreement with respect to the Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) that is not contingent upon the Closing or that would be effective prior to the Closing Date, (c) no Representative, manager, officer or employee of any Group Company shall be required to deliver any certificate or take any other action pursuant to this Section 8.11 to the extent any such action would reasonably be expected to result in personal liability to such Representative, manager, officer or employee, (d) no Group Company or their respective Representatives shall be required to take any action that would reasonably be expected, in the reasonable judgment of the Company, to conflict with, or result in any violation or breach of, any applicable Laws, any organizational documents of any Group Company, any contract or obligations of confidentiality (not created in contemplation hereof) binding on any Group Company, (e) no Group Company or any of their respective Representatives shall be required to take any action that would cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement, (f) no Group Company or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, the Company has, in its good faith, determined is not true, (g) no Group Companies or their respective Representatives shall be required to provide, and the Buyer will be solely responsible for the preparation of: (1) pro forma financial information; (2) any description of all or any component of the Debt Financing; or (3) projections, risk factors or other forward-looking statements relating to all or any component of the Debt Financing; and (h) no Group Company shall be required to provide access to or disclose information that the Company determines would jeopardize any attorney–client privilege or other similar privilege goodwill of the Company or any of its Subsidiaries. Promptly upon request by the Company, Xxxxx will reimburse the Company for any reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Company, the Company Subsidiaries or any of their Representatives in connection with the cooperation of the Company, the Company Subsidiaries and their Representatives contemplated by this Section 8.11. Except in the case of fraud or a breach of this Agreement, Buyer shall indemnify, defend, and hold harmless the Group Companies and their respective Representatives from and against any and all losses, damages, awards, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecution, investigation, defense or settlement of any of the foregoing) and other amounts suffered or incurred by them in connection with (i) any action taken by them at the request of Buyer pursuant to this Section 8.11 or in connection with the arrangement of the Debt Financing or (ii) any information utilized in connection therewith, and the foregoing obligations shall survive termination of this Agreement and the occurrence of the Closing. In addition, no action, liability or obligation of the Company, any of the Company Subsidiaries or any of their respective Representatives pursuant intellectual property rights. At least one (1) Business Day prior to any certificatethe anticipated Closing Date, agreement, arrangement, document the Company will deliver to Parent a customary payoff letter or instrument relating to any Debt Financing (other than letters executed by the execution lenders of the authorization letters referred Credit Agreement, which letter will set forth (a) the total amount required to be paid at the Effective Time to satisfy in clause full the repayment of all Indebtedness outstanding under the Credit Agreement and, if any, all prepayment penalties, premiums and breakage costs that become payable upon such repayment and any other fees or expenses outstanding thereunder (c)(iithe “Payoff Amount“), (b) of Section 8.11.1the lenders’ obligation to release all liens and other security securing the Credit Agreement in due course and at Parent’s expense after receiving the Payoff Amount, and (c) will wire transfer instructions for paying the Payoff Amount. Notwithstanding the above, all corporate, limited liability or other organizational actions shall be deemed to become effective until only if and when the Closing Date. All materialoccurs and shall be derived exclusively from the authority of, nonand shall only be taken by, the board of directors of the Company and its Subsidiaries or other governing body of the Company and its Subsidiaries as constituted after giving effect to the Closing.
(ii) Upon the Company’s request, Parent will reimburse the Company for all reasonable and documented out-public information regarding of-pocket costs, fees and expenses incurred by or on behalf of the Group Companies provided to Buyer Company or any of its Subsidiaries in connection with this Section 7.13. Parent shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives for any Liabilities incurred by any of them in connection with any action taken by them pursuant to this Section 8.11 shall be kept confidential by them 7.13 (other than arising from fraud or intentional misrepresentation on the part of the Company or its Subsidiaries or Representatives), whether or not the Merger is consummated or this Agreement is terminated in accordance with the Confidentiality Agreement except for disclosure Article IX. Parent and Merger Sub acknowledge and agree that Section 7.13 shall not create any independent conditions to potential investors as required in connection with the Debt Financing subject to customary confidentiality protections. Notwithstanding anything to the contrary, the Company shall be deemed to have complied with this Section 8.11 for all purposes of this Agreement (including Article 6 and Article 7) unless the Debt Financing has not been obtained primarily as a result of the Company’s Willful Breach of its obligations under this Section 8.11. Notwithstanding anything herein to the contrary, Xxxxx acknowledges and agrees that obtaining any Debt Financing is not a condition to the Closing.
Appears in 1 contract
Financing Cooperation. 8.11.1. Buyer may determine(a) Prior to the Effective Time, the Company shall, and shall cause the Company Subsidiaries to, and shall use its reasonable best efforts to cause its and their Representatives to, provide all customary cooperation and all customary financial information, in its sole discretion, to obtain debt financing to fund any portion each case that is reasonably requested by Parent in connection with the Debt Financing (it being understood that the receipt of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained not a condition to the Merger), including using commercially reasonable efforts to: (xi) provide Seller all information reasonably requested by Parent and the Financing Parties (or any replacement thereof) customarily used in marketing materials for financing transactions comparable to the Financing, (ii) designate members of senior management of the Company to provide such cooperation in connection with the Debt Financing as is reasonably requested, at reasonable times to be mutually agreed, by Parent and the Financing Parties, (iii) provide reasonable cooperation with the due diligence efforts of the Financing Parties to the extent reasonable and customary, including delivery to Parent and the Financing Parties of such due diligence materials as are reasonably available and reasonably requested by Parent, (iv) reasonably assist Parent in arranging for the replacement or continuation of the existing letters of credit of the Company and the Company with written notice that such Debt Financing has been obtained Subsidiaries, and (yv) deliver reasonably assist in the preparation, of definitive financing documents as may be required by the Financing, and other customary documents as may be reasonably requested by Parent (or cause to be delivered) to Seller and the Company trueincluding loan agreements, correct and complete copies of all arrangements pursuant to which any Financing Parties shall have committed to provide any portion of the Debt Financing; guarantees, as applicable), provided that any fee letters may be redacted in a customary manner; provided further that, in no event shall any of the receipt foregoing be effective until as of immediately after the Closing; provided, however, that (A) no such cooperation shall be required to the extent it would (I) unreasonably disrupt the conduct of the Company’s business or create an unreasonable risk of damage or destruction to any property or assets of the Company or the Company Subsidiaries, (II) require the Company or the Company Subsidiaries to incur any fees, expenses or other liability prior to the Effective Time for which it has not received prior or simultaneous reimbursement or is not otherwise indemnified by or on behalf of Parent in accordance with Section 6.13(d) and Section 6.13(e), (III) be reasonably expected to cause any director, officer or employee of the Company or any Company Subsidiary to incur any personal liability, (IV) require the Company to waive, amend or violate any terms of this Agreement, (V) require the Company to provide any information that is prohibited or restricted by applicable Law or would give rise to a material risk of the loss of any attorney client, attorney work product or other legal privilege (provided, however, (X) that the Company shall use its reasonable best 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 give rise to a material risk of the loss of such Debt Financing be a condition to Closing privilege and Buyer confirms (Y) that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. Prior to the Closing, subject to Section 8.11.2, the Company shall use reasonable best efforts toto provide all documentation and other information required by Japanese bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations (including, and shall use reasonable best efforts to cause the Company Subsidiaries and its and their respective Representatives to, in each case at Buyer’s sole expense, provide to Buyer such cooperation reasonably requested by Buyer that is reasonably necessary in arranging, obtaining and syndicating the Debt Financing, if any (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the operations Act on Prevention of the Group CompaniesTransfer of Criminal Proceeds of Japan), including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies as may be reasonably requested by Buyer for the completion of the Debt Financing, (b) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies in connection with the Debt Financing relating to the extent reasonable and customary for financings of such type, (c) reasonably assisting in the preparation of (i) customary bank information memoranda, lender and investor presentations, offering documents, offering or private placement memoranda and other similar marketing documents and due diligence efforts for the Debt Financing and (ii) customary authorization and representation letters, each as required in connection with the Debt Financing, authorizing the distribution of information to prospective lenders and containing a representation that the public side of such documents, if any, do not include any information about any Group Company or any securities of any Group Company that would constitute material non-public information within the meaning of the United States federal and state securities laws if any Group Company were a public reporting company, (d) using reasonable best efforts to cause the Company’s independent registered accounting firm to provide customary assistance, including (i) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) in connection with any capital markets transaction comprising a part of the Debt Financing, (ii) providing customary consents to the inclusion of their audit report in respect of any financial statements of the Company and the Company Subsidiaries in any offering documents relating to the Debt Financing and (iii) reasonable assistance and cooperation to Buyer with respect to any auditor due diligence, (e) subject to and conditioned on the occurrence of the Closing, the taking of customary corporate actions reasonably necessary to permit the consummation of and funding of the Debt Financing, (f) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth in any definitive document relating to the Debt Financing to the extent satisfaction of such condition requires the cooperation of, or is within the control of, the Group Companies, (g) delivering to Buyer at least three (3) Business Days prior to the Closing all such documentation and information Closing, in each case as is reasonably requested (in writing English) by Buyer Parent at least ten eight (10) 8) Business Days prior to Closing), (VI) conflict with or violate or that would reasonably be expected to conflict with, or result in a violation of, the Closing Company Governing Documents or the organizational or governing documents of any Company Subsidiary or result in, prior to the extent required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulationsEffective Time, including the PATRIOT Act and contravention of, or that would reasonably be expected to result in, prior to the requirements of 31 C.F.R. §1010.230Effective Time, a violation or breach of, or default under, any Material Contract to which the Company or any Company Subsidiary is a party, (hVII) facilitating and assisting in that would unreasonably disrupt the preparation and delivery of any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents relating to the Debt Financing relating to the Group Companies, and their respective businesses to be included in the definitive documents relating to the Debt Financing, and assist with the execution and delivery conduct of the same, in each case, solely to the extent reasonable and customary for financings of such typeCompany’s business, (iVIII) cooperating with internal and external require the Company, any Company Subsidiary or their counsel of Buyer in connection with providing customary back-up certificates and factual information regarding to provide any legal opinion that such counsel may be required to deliver in connection with the Debt FinancingFinancing or (IX) require the preparation or delivery of any financial statements or other financial data that are not prepared in the ordinary course of its financial reporting practice; it being understood and agreed that under no circumstances shall the Company and its Subsidiaries be required to provide projections, in each caseestimates or pro forma financial information, solely including any pro forma cost savings, synergies, capitalization or other pro forma adjustments to be incorporated into any pro forma financial information, all of which shall be the responsibility of Parent and Merger Sub; and (B) the Company and the Company Subsidiaries shall not be required to (I) enter into or approve any 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 extent reasonable and customary for financings of such type, and Effective Time or (jII) obtaining and providing documents to Buyer (including draft payoff letters) relating provide any indemnity prior to the repayment of the Indebtedness and the release of related guarantees and Liens in accordance with the terms of this Agreement. Effective Time.
(b) The Company hereby consents, on behalf of itself and the Group Companies, consents to the reasonable use of the Company’s and the Company Subsidiaries’ trademarks, service marks and logos of the Group Companies solely in connection with the Debt Financingfinancing for the Transactions; provided that such trademarks, service marks and logos (i) are used solely in a manner that is not intended to, nor is to or reasonably likely to, to harm or disparage the Company or the reputation or goodwill of the Company or the Company Subsidiaries, and (ii) are used solely in connection with the Financing or a description of the Company’s , its business and products or the Merger.
(c) All non-public or other confidential information provided by the Company or any of its Affiliates’ reputation Representatives pursuant to this Agreement will be kept confidential in accordance with the Confidentiality Agreement, except that Parent will be permitted to disclose such information to any Financing Parties so long as such Persons (i) agree to be bound by the Confidentiality Agreement as if parties thereto; or goodwill(ii) are subject to other confidentiality undertakings reasonably satisfactory to the Company and of which the Company is a beneficiary.
8.11.2. Notwithstanding anything in this Agreement (d) Parent shall promptly, upon written request by the Company, reimburse the Company for all reasonable and documented out-of-pocket expenses (including (A) reasonable and documented out-of-pocket attorneys’ fees and (B) reasonable and documented out-of-pocket expenses of the Company’s accounting firms engaged to the contrary, (a) no Group Company nor any of their respective Representatives shall be required, under the provisions of this Section 8.11 or otherwise assist in connection with the Debt Financing, to pay ) incurred by the Company or any commitment Company Subsidiary or other similar fee or enter into any binding agreement (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) or commitment or incur any other actual or potential liability or obligation their respective Representatives in connection with the Debt cooperation of the Company and the Company Subsidiaries and Representatives contemplated by this Section 6.13.
(e) Parent shall indemnify and hold harmless the Company, the Company Subsidiaries and their respective Representatives from and against any and all liabilities, losses, damages, claims, reasonable and documented out-of-pocket costs and expenses (including reasonable and documented out-of-pocket attorneys’ fees), interest, awards, judgments, penalties and amounts paid in settlement suffered or incurred by them in connection with the arrangement of the Financing prior to (including the Closing that is not advanced by Buyer, (b) no Group Company or any performance of their respective Representativesobligations under, managersor the taking of or refraining from any action in accordance with, officers or employees shall be required to execute or enter into, perform or authorize any agreement with respect to the Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) that is not contingent upon the Closing or that would be effective prior to the Closing Date, (c) no Representative, manager, officer or employee of any Group Company shall be required to deliver any certificate or take any other action pursuant to this Section 8.11 6.13); except to the extent any such action would reasonably be expected to result liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments, penalties or amounts paid in personal liability to such Representativesettlement arise from (x) the gross negligence, manager, officer bad faith or employee, (d) no Group Company or their respective Representatives shall be required to take any action that would reasonably be expected, in the reasonable judgment willful misconduct of the Company, to conflict with, or result in any violation or breach of, any applicable Laws, any organizational documents of any Group Company, any contract or obligations of confidentiality (not created in contemplation hereof) binding on any Group Company, (e) no Group the Company Subsidiaries or any of their respective Representatives shall be required to take any action that would cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement, (f) no Group Company or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, the Company has, in its good faith, determined is not true, (g) no Group Companies or their respective Representatives shall be required to provide, and the Buyer will be solely responsible for the preparation of: (1) pro forma financial information; (2) any description of all or any component of the Debt Financing; or (3y) projections, risk factors or other forward-looking statements relating to all or any component of the Debt Financing; a Willful and (h) no Group Company shall be required to provide access to or disclose information that the Company determines would jeopardize any attorney–client privilege or other similar privilege of the Company or any of its Subsidiaries. Promptly upon request by the Company, Xxxxx will reimburse the Company for any reasonable costs and expenses (including reasonable attorneys’ fees) incurred Material Breach by the Company, the Company Subsidiaries or any of their Representatives in connection with the cooperation of the Company, the Company Subsidiaries and their Representatives contemplated by this Section 8.11. respective Representatives.
(f) Except as set forth in the case of fraud or a breach of this AgreementDebt Commitment Letter, Buyer shall indemnifyin no event will the Guarantor, defend, and hold harmless the Group Companies and their respective Representatives from and against any and all losses, damages, awards, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecution, investigation, defense or settlement of any of the foregoing) and other amounts suffered or incurred by them in connection with (i) any action taken by them at the request of Buyer pursuant to this Section 8.11 or in connection with the arrangement of the Debt Financing or (ii) any information utilized in connection therewith, and the foregoing obligations shall survive termination of this Agreement and the occurrence of the Closing. In addition, no action, liability or obligation of the Company, any of the Company Subsidiaries Parent or any of their respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to any Debt Financing affiliates (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) which for this purpose will be effective until deemed to include the Closing Date. All materialfinancing sources or potential financing sources of Guarantor, non-public information regarding the Group Companies provided to Buyer Parent and their respective affiliates) enter into any Contract (i) awarding any agent, broker, investment banker or financial advisor any of its Representatives pursuant to this Section 8.11 shall be kept confidential by them in accordance with the Confidentiality Agreement except for disclosure to potential investors as required financial advisory role on an exclusive basis in connection with the Debt Financing subject Merger or other Transactions; or (ii) expressly prohibiting any bank, investment bank or other potential provider of debt financing from providing or seeking to customary confidentiality protections. Notwithstanding anything provide debt financing or financial advisory services to any Person, in each case in connection with a transaction relating to the contrary, the Company shall be deemed to have complied with this Section 8.11 for all purposes of this Agreement or any Company Subsidiary.
(including Article 6 g) The Parties acknowledge and Article 7) unless the Debt Financing has not been obtained primarily as a result of the Company’s Willful Breach of its obligations under this Section 8.11. Notwithstanding anything herein to the contrary, Xxxxx acknowledges and agrees agree that obtaining any Debt the Financing is not a condition to the Closing. Notwithstanding anything in this Agreement to the contrary, the Company’s breach of Section 6.12(b) or this Section 6.13 will not be asserted as the basis for (A) any conditions set forth in Article VII to consummate the Merger having not been satisfied or (B) the termination of this Agreement pursuant to Article VIII. If the Financing has not been obtained, Parent and Merger Sub will each continue to be obligated, subject to the satisfaction or waiver of the conditions set forth in Article VII, to consummate the Transactions, including the Merger.
Appears in 1 contract
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (x) provide Seller and the Company with written notice that such Debt Financing has been obtained and (y) deliver (or cause to be delivered) to Seller and the Company true, correct and complete copies of all arrangements pursuant to which any Financing Parties shall have committed to provide any portion of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further that, in no event shall the receipt of such Debt Financing be a condition to Closing and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. 13.1 Prior to the Closing, subject to Section 8.11.2Completion, the Company Seller (a) shall use reasonable best efforts to, and shall use its reasonable best efforts to provide to the Purchaser, (b) shall cause the Company and its Subsidiaries and its and their respective officers, directors and employees to use reasonable best efforts and (c) shall use its reasonable best efforts to direct its and their respective Representatives to use reasonable best efforts to provide to the Purchaser, to the extent required by Section 13.3, at the Purchaser’s sole expense, any and all reasonable cooperation reasonably requested by the Purchaser that is necessary and customary in connection with the Purchaser Financing and any Stock Consideration and the respective repayment, cancellation, redemption and discharge of the Existing Senior Facilities Agreement, the Existing Notes and the Existing Hedging Documentation and the full release and discharge of the Existing Main Financing Liens. For the avoidance of doubt, such reasonable cooperation shall include using reasonable best efforts to: (i) upon reasonable advance notice, cause senior management of the Company and its Subsidiaries to participate in a reasonable number of sessions with rating agencies, lender or investor meetings, road shows, due diligence sessions with prospective lenders and purchasers of the Purchaser Financing or any Stock Consideration and cooperate with the marketing efforts of the Purchaser and its financing sources, in each case at Buyer’s sole expense, provide to Buyer such cooperation reasonably requested by Buyer that is reasonably necessary in arranging, obtaining and syndicating the Debt Financing, if connection with all or any (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the operations portion of the Group Companies), including as promptly as reasonably practical, Purchaser Financing or any Stock Consideration; (aii) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies as may be reasonably requested by Buyer for the completion of the Debt Financing, (b) participating in telephonic meetings and otherwise reasonably assisting assist with the preparation of appropriate and portions of customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies in connection with the Debt Financing to the extent reasonable and customary for financings of such type, (c) reasonably assisting in the preparation of (i) customary bank information memoranda, lender and investor rating agency presentations, offering documents, offering or private placement memoranda memoranda, bank information memoranda, prospectuses and other similar marketing documents regarding the Company and due diligence efforts for the Debt Financing and (ii) customary authorization and representation letters, each as its Subsidiaries required in connection with the Debt FinancingPurchaser Financing or any Stock Consideration and designating, upon request, whether such information is suitable to be made available to lenders and other investors who do not wish to receive material non-public information with respect to the Company and its Subsidiaries; (iii) as promptly as practicable, furnish the Purchaser with customary financial and operating information and data of the Company and its Subsidiaries reasonably requested by the Purchaser that is required in connection with the Purchaser Financing or any Stock Consideration contemplated by the Purchaser (or one of its Subsidiaries), including any pro forma financial statements required in connection therewith, provided that the Purchaser shall be responsible for the preparation of any pro forma financial statements and pro forma adjustments giving effect to the Transactions for use in connection with the offering of the Purchaser Financing or any Stock Consideration contemplated by the Purchaser (or one of its Subsidiaries), it being understood that the Company shall cooperate with Purchaser in the preparation of such pro forma information to the extent its cooperation relates to customary and reasonably requested financial information and data readily available from the Company’s historical books and records, (iv) facilitate (including by delivery of customary representation letters) cooperation with the Purchaser Financing or any Stock Consideration by the Company’s independent auditors, including using reasonable best efforts to obtain “customary” comfort letters (including “customary” negative assurances) in connection with the Purchaser Financing or any Stock Consideration, providing final drafts of such comfort letters which such auditors would be prepared to issue upon completion of customary procedures and facilitate direct contact with such independent auditors for participation in a reasonable number of due diligence sessions, drafting sessions and other meetings upon reasonable advance notice and during normal business hours and obtaining any consents required to include the historical financial statements included in the Company information in any registration statement or applicable Purchaser SEC filing, (v) upon the reasonable request of the Purchaser, providing customary authorization and/or management representation letters to the Purchaser and the Purchaser Financing Sources authorizing the distribution of information to prospective lenders and containing a representation that in any “bank” or “bridge” confidential information memorandum (or private supplement thereto), in each case solely with respect to the public side portion of such documents, if any, do not include any information about any Group Company contained such confidential information memorandum (or any securities of any Group Company that would constitute material non-public information within the meaning of the United States federal and state securities laws if any Group Company were a public reporting company, (dsupplement) using reasonable best efforts to cause the Company’s independent registered accounting firm to provide customary assistance, including (i) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) in connection with any capital markets transaction comprising a part of the Debt Financing, (ii) providing customary consents to the inclusion of their audit report in respect of any financial statements of concerning the Company and its Subsidiaries (and not any other part of such information); (vi) assist with the Company Subsidiaries in any offering documents relating to the Debt Financing and (iii) reasonable assistance and cooperation to Buyer with respect to any auditor due diligence, (e) subject to and conditioned on the occurrence preparation of the Closing, the taking of customary corporate actions reasonably necessary to permit the consummation of and funding of the Debt Financing, (f) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth in any definitive document relating to financing documents as may be reasonably requested by the Debt Financing Purchaser, including by providing information for the completion of any schedules thereto, in each case solely to the extent satisfaction of such condition requires materials relate to information concerning the cooperation of, or is within the control of, the Group CompaniesCompany and its Subsidiaries, (gvii) delivering to Buyer at least furnish the Purchaser promptly, and in any event no later than three (3) Business Days prior to the Closing Completion, with all such required documentation and information as is reasonably requested in writing by Buyer at least ten (10) Business Days prior with respect to the Closing to Company and its Subsidiaries that is required in connection with the extent required Purchaser Financing or any Stock Consideration by U.S. regulatory authorities Authorities under applicable “know your customer” and anti-money laundering rules and regulations, including including, without limitation, the PATRIOT Act and Patriot Act, that has been reasonably requested in writing by the requirements of 31 C.F.R. §1010.230, Purchaser at least ten (h10) facilitating and assisting in the preparation and delivery of any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents relating Business Days prior to the Debt Completion Date in connection with the Purchaser Financing relating to the Group Companies, or any Stock Consideration and their respective businesses to be included in the definitive documents relating to the Debt Financing, and (viii) assist with the execution and delivery pay-off, redemption, cancellation and/or discharge (as applicable) of the sameExisting Senior Facilities Agreement, the Existing Notes and the Existing Hedging Documentation and the full release and discharge of the Main Financing Liens (including, as applicable, delivering prepayment, redemption, cancellation or termination notices as required by the terms of such Existing Main Financing Documentation and otherwise pursuing any reasonable and customary approach chosen by the Purchaser to the defeasance, satisfaction and discharge, constructive satisfaction and discharge, redemption, termination, cancellation, amendment or other treatment of, such Existing Main Financing Documentation (including any redemption, tender offer or consent solicitation)).
13.2 Notwithstanding the foregoing, (w) nothing in this Section 13 shall require such cooperation to the extent it would (I) unreasonably interfere with the business or operations of the Company and its Subsidiaries or (II) subject any of the Company’s or its Subsidiaries’ respective directors, managers, partners, members, officers or employees or other Representatives to any actual or potential personal liability (other than with respect to customary authorization letters referred to above), (x) none of the Company or its Subsidiaries shall be required to deliver or obtain opinions of internal or external counsel in connection with obtaining the Purchaser Financing or any Stock Consideration or in connection with the repayment under the Existing Main Financing Documentation and the release of collateral in connection therewith, (y) none of the Company or any of its Subsidiaries shall be required to pay any commitment or other fee or incur or assume any other liability or obligation in connection with the Purchaser Financing or any Stock Consideration or 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 or agree to provide any indemnity in connection with the Purchaser Financing or any of the foregoing, in each case, solely to the extent reasonable and customary for financings of such type, (i) cooperating with internal and external counsel of Buyer 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 Debt Financing, in each case, solely to the extent reasonable and customary for financings of such type, and (j) obtaining and providing documents to Buyer (including draft payoff letters) relating to the repayment of the Indebtedness and the release of related guarantees and Liens unless promptly reimbursed or otherwise indemnified in accordance with the terms hereof and (z) nothing in this Section 13 shall require any action that would (i) conflict with or violate the Company’s or any Subsidiaries’ organizational documents or any Laws or result in the contravention of, or that would result in a breach of, or a default under, any contract to which the Company or any of its Subsidiaries is a party with a third party (and not entered into in contemplated thereof), to the extent the Company and its Subsidiaries uses reasonable best efforts to provide such information in a manner that does not breach such Law, undertaking or obligation, (ii) provide access to or disclose information where the Company reasonably determines that such access or disclosure would reasonably be expected to jeopardize the attorney-client privilege, provided, however, that the Company shall inform the Purchaser of the general nature of the information being withheld and, upon the Purchaser’s reasonable prior written request, the Company shall use its commercially reasonable efforts to cause such information or documents to be provided in a manner that would not reasonably be expected to result in a waiver of such privilege, (iii) waive or amend any terms of this Agreement or any other contract to which the Company or any of its Subsidiaries is a party, (iv) cause any condition to the Completion set forth in Section 5.1 to not be satisfied or (v) cause any breach of this Agreement. The For the avoidance of doubt, none of the Company hereby consentsor its Subsidiaries or their respective officers, on behalf of itself directors, managers, partners, members or employees shall be required to execute, deliver or enter into or perform any agreement, document or instrument with respect to the Purchaser Financing that is not contingent upon the Completion or that would be effective prior to the Completion (other than customary engagement letters with, and management representation letters to, the Company’s independent auditors and the Group Companiesauthorization letters referenced above), and no directors, managers, partners and members of the Company and its Subsidiaries shall be required to adopt resolutions approving the agreements, documents and instruments pursuant to which the Purchaser Financing or any Stock Consideration is obtained unless the Purchaser shall have determined that such director or manager of the Company’s Subsidiaries are to remain as directors or managers of the Company’s Subsidiaries on and after the Completion Date and such resolutions are contingent upon the occurrence of, or only effective as of, the Completion Date.
13.3 The Purchaser shall indemnify, defend and hold harmless each of the Company, its Subsidiaries and their Affiliates and 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 Purchaser Financing, the repayment under the Existing Main Financing Documentation and the release of the Existing Main Financing Liens and termination of security interests in connection therewith and the performance of their respective obligations under this Section 13 and any information utilized in connection therewith, except to the extent resulting from the fraud (dolo) of such persons (as determined by a court of competent jurisdiction in a final and non-appealable decision). If the Completion does not occur, Purchaser shall, promptly upon request of the Company, reimburse the Company and its Subsidiaries for all reasonable and documented out-of-pocket fees, costs and expenses incurred by the Company or its Subsidiaries (including those of its Affiliates and Representatives) in connection with the cooperation required by this Section 13.
13.4 For the avoidance of doubt, the Parties acknowledge and agree that the provisions contained in this Section 13 represent the sole obligation of the Company, its Subsidiaries and their Affiliates and their respective Representatives with respect to cooperation in connection with the arrangement of the Purchaser Financing, any Stock Consideration and the repayment under the Existing Main Financing Documentation and the release of collateral in connection therewith, and no other provision of this Agreement (including the Schedules hereto) shall be deemed to expand or modify such obligations.
13.5 The Seller shall procure that the Company consents to the use of the logos of the Group Companies Company and its Subsidiaries by the Purchaser in connection with the Debt FinancingPurchaser Financing or any Stock Consideration; provided provided, that the Purchaser shall ensure that such logos are used solely in a manner that is not intended tointended, nor or that is not reasonably likely tolikely, to harm or disparage the Company or the Company’s or any of its Affiliates’ reputation or goodwill.
8.11.2. Notwithstanding anything in this Agreement to the contrary, (a) no Group Company nor any of their respective Representatives shall be required, under the provisions of this Section 8.11 or otherwise in connection with the Debt Financing, to pay any commitment or other similar fee or enter into any binding agreement (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) or commitment or incur any other actual or potential liability or obligation in connection with the Debt Financing prior to the Closing that is not advanced by Buyer, (b) no Group Company or any of their respective Representatives, managers, officers or employees shall be required to execute or enter into, perform or authorize any agreement with respect to the Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) that is not contingent upon the Closing or that would be effective prior to the Closing Date, (c) no Representative, manager, officer or employee of any Group Company shall be required to deliver any certificate or take any other action pursuant to this Section 8.11 to the extent any such action would reasonably be expected to result in personal liability to such Representative, manager, officer or employee, (d) no Group Company or their respective Representatives shall be required to take any action that would reasonably be expected, in the reasonable judgment of the Company, to conflict with, or result in any violation or breach of, any applicable Laws, any organizational documents of any Group Company, any contract or obligations of confidentiality (not created in contemplation hereof) binding on any Group Company, (e) no Group Company or any of their respective Representatives shall be required to take any action that would cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement, (f) no Group Company or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, the Company has, in its good faith, determined is not true, (g) no Group Companies or their respective Representatives shall be required to provide, and the Buyer will be solely responsible for the preparation of: (1) pro forma financial information; (2) any description of all or any component of the Debt Financing; or (3) projections, risk factors or other forward-looking statements relating to all or any component of the Debt Financing; and (h) no Group Company shall be required to provide access to or disclose information that the Company determines would jeopardize any attorney–client privilege or other similar privilege of the Company or any of its Subsidiaries. Promptly upon request by the Company, Xxxxx will reimburse the Company for any reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Company, the Company Subsidiaries or any of their Representatives in connection with the cooperation of the Company, the Company Subsidiaries and their Representatives contemplated by this Section 8.11. Except in the case of fraud or a breach of this Agreement, Buyer shall indemnify, defend, and hold harmless the Group Companies and their respective Representatives from and against any and all losses, damages, awards, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecution, investigation, defense or settlement of any of the foregoing) and other amounts suffered or incurred by them in connection with (i) any action taken by them at the request of Buyer pursuant to this Section 8.11 or in connection with the arrangement of the Debt Financing or (ii) any information utilized in connection therewith, and the foregoing obligations shall survive termination of this Agreement and the occurrence of the Closing. In addition, no action, liability or obligation of the Company, any of the Company Subsidiaries or any of their respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to any Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) will be effective until the Closing Date. All material, non-public information regarding the Group Companies provided to Buyer or any of its Representatives pursuant to this Section 8.11 shall be kept confidential by them in accordance with the Confidentiality Agreement except for disclosure to potential investors as required in connection with the Debt Financing subject to customary confidentiality protections. Notwithstanding anything to the contrary, the Company shall be deemed to have complied with this Section 8.11 for all purposes of this Agreement (including Article 6 and Article 7) unless the Debt Financing has not been obtained primarily as a result of the Company’s Willful Breach of its obligations under this Section 8.11. Notwithstanding anything herein to the contrary, Xxxxx acknowledges and agrees that obtaining any Debt Financing is not a condition to the Closing.
Appears in 1 contract
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (xa) provide Seller and the Company with written notice that such Debt Financing has been obtained and (y) deliver (or cause to be delivered) to Seller and the Company true, correct and complete copies of all arrangements pursuant to which any Financing Parties shall have committed to provide any portion of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further that, in no event shall the receipt of such Debt Financing be a condition to Closing and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. Prior to the Closing, subject to Section 8.11.2Sections 5.19(b) and 5.19(c), the Company shall Sellers agree to use reasonable best efforts totheir Reasonable Best Efforts to provide, and shall use reasonable best efforts to cause the Company Subsidiaries Acquired Companies and its and each of their respective Representatives toofficers, in each case directors, employees, accountants, consultants, investment bankers, legal counsel, agents and other advisors and representatives to provide, at Buyer’s Purchasers’ sole cost and expense, provide to Buyer such all reasonable and timely cooperation reasonably requested by Buyer Purchasers (provided, however, Sellers shall not be required to provide, or cause any Acquired Company or other Affiliate to provide, cooperation under this Section 5.19 that involves any binding commitment by Sellers or any of their Affiliates which commitment is reasonably necessary not conditioned on the Closing and does not terminate without liability to Sellers or their Affiliates upon the termination of this Agreement prior to Closing) in arranging, obtaining and syndicating connection with the arrangement of the Debt Financing contemplated by the Debt Commitment Letter or any Alternative Financing (collectively, the “Available Financing”), including, subject to clauses (b) and (c) below, (i) if any applicable facilitating the pledging of collateral and obtaining surveys and title insurance as reasonably requested by Purchasers (provided that such requested cooperation is consistent with applicable Laws and does pledge will not unreasonably interfere with take effect until the operations of the Group Companies), including as promptly as reasonably practical, (aClosing) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies as may be reasonably requested by Buyer for the completion of the Debt Financing, (b) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies in connection with the Debt Financing to the extent reasonable and customary for financings of such type, (c) reasonably assisting in the preparation of (i) customary bank information memoranda, lender and investor presentations, offering documents, offering or private placement memoranda and other similar marketing documents and due diligence efforts for the Debt Financing and (ii) customary authorization and representation letters, each as required in connection with the Debt Financing, authorizing the distribution of information to prospective lenders and containing a representation that the public side of taking such documents, if any, do not include any information about any Group Company or any securities of any Group Company that would constitute material non-public information within the meaning of the United States federal and state securities laws if any Group Company were a public reporting company, (d) using reasonable best efforts to cause the Company’s independent registered accounting firm to provide customary assistance, including (i) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) in connection with any capital markets transaction comprising a part of the Debt Financing, (ii) providing customary consents to the inclusion of their audit report in respect of any financial statements of the Company and the Company Subsidiaries in any offering documents relating to the Debt Financing and (iii) reasonable assistance and cooperation to Buyer with respect to any auditor due diligence, (e) subject to and conditioned on the occurrence of the Closing, the taking of customary corporate actions as shall be reasonably necessary to permit the consummation of the Financing Agreements and funding of to permit the Debt Financingproceeds thereof to be made available to Purchasers at the Closing, (fiii) using Reasonable Best Efforts to obtain legal opinions as may reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth in any definitive document relating be requested by Purchasers and (iv) subject to the Debt Financing Confidentiality Agreement, using Reasonable Best Efforts to the extent satisfaction of such condition requires the cooperation ofprovide and execute necessary documents and certificates, or is within the control ofincluding consents to collateral assignments and officer’s certificates, the Group Companies, (g) delivering to Buyer at least three (3) Business Days prior to the Closing all such documentation and information as is may be reasonably requested in writing by Buyer at least ten (10) Business Days prior to the Closing to the extent required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act and the requirements of 31 C.F.R. §1010.230, (h) facilitating and assisting in the preparation and delivery of any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents relating to the Debt Financing relating to the Group Companies, and their respective businesses to be included in the definitive documents relating to the Debt Financing, and assist with the execution and delivery of the same, in each case, solely to the extent reasonable and customary for financings of such type, (i) cooperating with internal and external counsel of Buyer 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 Debt Financing, in each case, solely to the extent reasonable and customary for financings of such type, and (j) obtaining and providing documents to Buyer (including draft payoff letters) relating to the repayment of the Indebtedness and the release of related guarantees and Liens in accordance with the terms of this Agreement. The Company hereby consents, on behalf of itself and the Group Companies, to the use of the logos of the Group Companies in connection with the Debt Financing; provided that such logos are used solely in a manner that is not intended to, nor is reasonably likely to, harm or disparage the Company’s or any of its Affiliates’ reputation or goodwillPurchasers.
8.11.2. (b) Notwithstanding anything in this Agreement to the contrary, (ai) no Group Company Seller nor any of their respective Representatives Acquired Company shall be required, under the provisions of this Section 8.11 required to cooperate or otherwise in connection take any action that would unreasonably interfere with the Debt Financing, day-to-day operations of any Seller or any Acquired Company; (ii) no Seller nor any Acquired Company shall be required to pay any commitment or other similar fee or enter into any binding agreement (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) or commitment or incur any other actual or potential liability or obligation in connection with the Debt Financing (or any Alternative Financing) prior to the Closing that is not advanced by Buyer, Closing; (biii) no Group Company officer, director, employee, accountant, consultant, investment banker, legal counsel, agent or other advisor of any Seller or any of their respective Representatives, managers, officers or employees shall be required to execute or enter into, perform or authorize any agreement with respect to the Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) that is not contingent upon the Closing or that would be effective prior to the Closing Date, (c) no Representative, manager, officer or employee of any Group Acquired Company shall be required to deliver any certificate or take any other action pursuant to this Section 8.11 5.19(a) to the extent any such action would reasonably be expected likely to result in personal liability to such Representativeofficer, managerdirector, officer or employee, accountant, consultant, investment banker, legal counsel, agent or other advisor, (div) the board of directors (or similar governing body) of any Seller or any Acquired Company shall not be required to approve any Financing (or any Alternative Financing) or agreements related thereto prior to the Closing, (v) no Group Seller nor any Acquired Company or their respective Representatives shall be required to take any action that would reasonably be expectedwill conflict with or violate its organizational documents, in the reasonable judgment of the Company, to conflict with, any Laws or result in any a violation or of breach of, any applicable Lawsor default under, any organizational documents of Contract to which any Group Company, Seller or any contract or obligations of confidentiality Acquired Company is a party (not created in contemplation hereof) binding on any Group Company, (evi) no Group Company or Seller nor any of their respective Representatives shall be required to take any action that would cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement, (f) no Group Company or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, the Company has, in its good faith, determined is not true, (g) no Group Companies or their respective Representatives shall be required to provide, and the Buyer will be solely responsible for the preparation of: (1) pro forma financial information; (2) any description of all or any component of the Debt Financing; or (3) projections, risk factors or other forward-looking statements relating to all or any component of the Debt Financing; and (h) no Group Acquired Company shall be required to provide access to any information the disclosure of which is prohibited or disclose information that the Company determines would jeopardize restricted under applicable Law or is legally privileged and (vii) neither Seller nor any attorney–client privilege or other similar privilege of the Company Acquired Companies will be responsible in any manner for information relating to the proposed debt and equity capitalization that may be required in connection with the Available Financing or any pro forma financial information delivered in connection therewith or for any data derived from the Acquired Companies’ historical books and records. Nothing in this Section 5.19(b) shall limit the representations and warranties of Sellers contained in Article II and Article III.
(c) Each Purchaser acknowledges and agrees that Sellers, the Acquired Companies, their Affiliates and its and their respective directors, officers, managers, employees, consultants, legal counsel, financial advisors and agents and other representatives shall not have any responsibility for, or incur any liability to any Person under, any financing that any Purchaser or any of its Subsidiaries. Promptly upon request by the Company, Xxxxx will reimburse the Company for any reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Company, the Company Subsidiaries or any of their Representatives Affiliates may raise in connection with the cooperation of the Company, the Company Subsidiaries and their Representatives transactions contemplated by this Agreement or any cooperation provided pursuant to Section 8.11. Except in 5.19(a); provided, that for the case avoidance of fraud or a doubt, nothing herein shall affect any liability that Sellers may have to Purchasers for breach of any representation, warranty, covenant or agreement set forth in this Agreement. Whether or not the Closing occurs, Buyer Purchasers shall indemnifypromptly upon request by any Seller (and in any event prior to the Closing) reimburse Sellers for all reasonable and documented out-of-pocket fees and expenses of Sellers, defendthe Acquired Companies and each of their respective officers, directors, employees, accountants, consultants, investment bankers, legal counsels, agents or other advisor in connection with their performance of their respective obligations pursuant to Section 5.19(a). Purchasers shall indemnify and hold harmless Sellers, the Group Acquired Companies and each of their respective Representatives officers, directors, employees, accountants, consultants, investment bankers, legal counsels, agents or other advisors, from and against any and all claims, losses, damages, injuries, liabilities, judgments, awards, penalties, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, feescosts (including cost of investigation), expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecution, investigation, defense of counsel) or settlement of payments (including any claim by or with respect to any such lenders, prospective lenders, agents and arrangers and ratings agencies) incurred or suffered by any of the foregoing) and other amounts suffered or incurred by them in connection with (i) any action taken by them at the request of Buyer pursuant to this Section 8.11 or in connection with the arrangement of the Debt Financing or any Alternative Financing or the performance of their respective obligations under this Section 5.19 and any information utilized therein (other than (i) material misstatements or omissions in information provided in writing by any Seller or any Acquired Company and (ii) any information utilized breach of any representation and warranty set forth in connection therewith, and the foregoing obligations Article II or Article III of this Agreement). This Section 5.19(c) shall survive and remain in full force and effect following termination of this Agreement and the occurrence of the Closing. In addition, no action, liability or obligation of the Company, any of the Company Subsidiaries or any of their respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to any Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) will be effective until the Closing Date. All material, non-public information regarding the Group Companies provided to Buyer or any of its Representatives pursuant to this Section 8.11 shall be kept confidential by them in accordance with the Confidentiality Agreement except for disclosure to potential investors as required in connection with the Debt Financing subject to customary confidentiality protections. Notwithstanding anything to the contrary, the Company shall be deemed to have complied with this Section 8.11 for all purposes of this Agreement (including Article 6 and Article 7) unless the Debt Financing has not been obtained primarily as a result of the Company’s Willful Breach of its obligations under this Section 8.11. Notwithstanding anything herein to the contrary, Xxxxx acknowledges and agrees that obtaining any Debt Financing is not a condition to the ClosingAgreement.
Appears in 1 contract
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of (a) In the Purchase Price (period between the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (x) provide Seller date hereof and the Company with written notice that such Debt Financing has been obtained Closing Date or earlier termination of this Agreement, Seller will use commercially reasonable efforts to provide, and (y) deliver (or cause to be delivered) to Seller and the Company true, correct and complete copies of all arrangements pursuant it and their respective representatives to which any Financing Parties shall have committed use their commercially reasonable efforts to provide any portion of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further that, in no event shall the receipt of such Debt Financing be a condition to Closing and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. Prior to the Closingprovide, subject to Section 8.11.26.2, the Company shall use reasonable best efforts to, and shall use reasonable best efforts to cause the Company Subsidiaries and its and their respective Representatives to, in each case at Buyer’s sole expense, provide to Buyer such cooperation reasonably requested by Buyer that is reasonably necessary in arranging, obtaining and syndicating the Debt Financing, if any (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the operations of the Group Companies), including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies as may be reasonably requested by Buyer for that is customary in connection with any effort by Buyer to obtain debt or other financing in connection with the completion of transactions contemplated hereby (the Debt “Buyer Financing”), including (i) furnishing Buyer and its actual and potential financing sources with financial and other pertinent information regarding the Company and the Covered Business as required by the definitive documents governing the Buyer Financing, (bii) participating participation in telephonic meetings a reasonable number of meetings, drafting sessions, due diligence presentations, ratings agency sessions and otherwise reasonably road shows in connection with the Buyer Financing to the extent customary and reasonable and not unreasonably interfering with the business of the Seller, (iii) assisting with the preparation of appropriate and customary marketing materials customary presentations, due diligence sessions (including accounting due diligence sessions) and sessions with for rating agencies in connection with the Debt Financing to the extent reasonable and customary for financings of such type, (c) reasonably assisting in the preparation of (i) customary bank information memoranda, lender and investor agency presentations, offering documents, offering or private placement memoranda, confidential and customary bank information memoranda and other similar marketing documents and due diligence efforts for the Debt Financing and (ii) customary authorization and representation letters, each as required used in connection with the Debt Financing, authorizing the distribution of information to prospective lenders and containing a representation that the public side of such documents, if any, do not include any information about any Group Company or any securities of any Group Company that would constitute material non-public information within the meaning of the United States federal and state securities laws if any Group Company were a public reporting company, (d) using reasonable best efforts to cause the Company’s independent registered accounting firm to provide customary assistance, including (i) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) in connection with any capital markets transaction comprising a part of the Debt Buyer Financing, (iiiv) providing customary consents executing and delivering, as of the Closing Date, any pledge and security documents, other definitive financing documents, or other certificates or documents, in each case as applicable and to the inclusion of their audit report in respect of any financial statements of extent reasonably requested by the Company and Buyer; provided that the Company Subsidiaries in any offering documents relating to the Debt Financing and (iii) reasonable assistance and cooperation to Buyer with respect to any auditor due diligenceeffectiveness thereof shall be conditioned upon, (e) subject to and conditioned on or become operative after, the occurrence of the Closing, and (v) as of the Closing Date, taking of customary all corporate actions reasonably necessary to permit the consummation of and funding of the Debt Financing, (f) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth in any definitive document relating to consummation of the Buyer Financing and to permit the proceeds thereof to be made available to Buyer. Notwithstanding the above, all organizational actions shall be deemed to become effective only if and when the Closing occurs and shall be derived exclusively from the authority of, and shall only be taken by, the board of directors or other equivalent governing body of the Company as constituted after giving effect to the Debt Financing to the extent satisfaction of such condition requires the cooperation of, or is within the control of, the Group Companies, (g) delivering to Buyer at least three (3) Business Days prior to the Closing all such documentation and Closing. All non-public information as is reasonably requested in writing by Buyer at least ten (10) Business Days prior to the Closing to the extent required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act and the requirements of 31 C.F.R. §1010.230, (h) facilitating and assisting in the preparation and delivery of any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents relating to the Debt Financing relating to the Group Companies, and their respective businesses to be included in the definitive documents relating to the Debt Financing, and assist with the execution and delivery of the same, in each case, solely to the extent reasonable and customary for financings of such type, (i) cooperating with internal and external counsel of Buyer in connection with providing customary back-up certificates and factual confidential information regarding any legal opinion that such counsel may be required to deliver in connection with the Debt Financing, in each case, solely to the extent reasonable and customary for financings of such type, and (j) obtaining and providing documents to Buyer (including draft payoff letters) relating to the repayment of the Indebtedness and the release of related guarantees and Liens in accordance with the terms of this Agreement. The Company hereby consents, on behalf of itself and the Group Companies, to the use of the logos of the Group Companies in connection with the Debt Financing; provided that such logos are used solely in a manner that is not intended to, nor is reasonably likely to, harm or disparage the Company’s or any of its Affiliates’ reputation or goodwill.
8.11.2. Notwithstanding anything in this Agreement to the contrary, (a) no Group Company nor any of their respective Representatives shall be required, under the provisions of this Section 8.11 or otherwise in connection with the Debt Financing, to pay any commitment or other similar fee or enter into any binding agreement (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) or commitment or incur any other actual or potential liability or obligation in connection with the Debt Financing prior to the Closing that is not advanced by Buyer, (b) no Group Company or any of their respective Representatives, managers, officers or employees shall be required to execute or enter into, perform or authorize any agreement with respect to the Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) that is not contingent upon the Closing or that would be effective prior to the Closing Date, (c) no Representative, manager, officer or employee of any Group Company shall be required to deliver any certificate or take any other action pursuant to this Section 8.11 to the extent any such action would reasonably be expected to result in personal liability to such Representative6.22(a), manager, officer or employee, (d) no Group Company or their respective Representatives shall be required to take any action that would reasonably be expected, in the reasonable judgment of the Company, to conflict with, or result in any violation or breach of, any applicable Laws, any organizational documents of any Group Company, any contract or obligations of confidentiality (not created in contemplation hereof) binding on any Group Company, (e) no Group Company or any of their respective Representatives shall be required to take any action that would cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement, (f) no Group Company or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, the Company has, in its good faith, determined is not true, (g) no Group Companies or their respective Representatives shall be required to provide, and the Buyer will be solely responsible for the preparation of: (1) pro forma financial information; (2) any description of all or any component of the Debt Financing; or (3) projections, risk factors or other forward-looking statements relating to all or any component of the Debt Financing; and (h) no Group Company shall be required to provide access to or disclose information that the Company determines would jeopardize any attorney–client privilege or other similar privilege of the Company or any of its Subsidiaries. Promptly upon request by the Company, Xxxxx will reimburse the Company for any reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Company, the Company Subsidiaries or any of their Representatives in connection with the cooperation of the Company, the Company Subsidiaries and their Representatives contemplated by this Section 8.11. Except in the case of fraud or a breach of this Agreement, Buyer shall indemnify, defend, and hold harmless the Group Companies and their respective Representatives from and against any and all losses, damages, awards, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecution, investigation, defense or settlement of any of the foregoing) and other amounts suffered or incurred by them in connection with (i) any action taken by them at the request of Buyer pursuant to this Section 8.11 or in connection with the arrangement of the Debt Financing or (ii) any information utilized in connection therewith, and the foregoing obligations shall survive termination of this Agreement and the occurrence of the Closing. In addition, no action, liability or obligation of the Company, any of the Company Subsidiaries or any of their respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to any Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) will be effective until the Closing Date. All material, non-public information regarding the Group Companies provided to Buyer or any of its Representatives pursuant to this Section 8.11 shall be kept confidential by them in accordance with the Confidentiality Agreement Agreement, except for disclosure that Buyer and its Affiliates shall be permitted to disclose such information to potential investors as required syndicate members during syndication (and allow such potential syndicate members to use such information in connection with the Debt Financing such syndication), subject to customary confidentiality protections. Notwithstanding anything to the contrary, the Company shall be deemed to have complied with this Section 8.11 for all purposes of this Agreement (including Article 6 and Article 7) unless the Debt Financing has not been obtained primarily as a result of the Company’s Willful Breach of its obligations under this Section 8.11. Notwithstanding anything herein to the contrary, Xxxxx acknowledges and agrees that obtaining any Debt Financing is not a condition to the Closingundertakings by such potential syndicate members.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Associated Banc-Corp)
Financing Cooperation. 8.11.1. Buyer may determine(a) Subject to the remaining provisions of this Section 6.12 and the Debt Financing Sources or other prospective lenders being subject to obligations of confidentiality on customary terms for syndicated lending transactions, in prior to the Effective Time, the Company shall, and shall cause its sole discretionSubsidiaries to, provide, and the Company and its Subsidiaries shall use their respective reasonable best efforts to cause their respective Representatives to provide, to obtain Acquiror and its Affiliates (including Parent) all cooperation that may be reasonably requested by Acquiror (including reasonable requests of banks, initial purchasers, underwriters or other Debt Financing Sources or their counsel) to assist Acquiror and its Affiliates (including Parent) in the arrangement of any third party debt financing (including providing reasonably available financial and other information regarding the Company and its Subsidiaries for use in marketing and offering documents and to fund enable Acquiror and its Affiliates (including Parent) to prepare projections or pro forma financial statements) for the purpose of financing, directly or indirectly, the aggregate Merger Consideration, any portion repayment or refinancing of debt of the Purchase Price Company and its Subsidiaries contemplated by this Agreement or required in connection with the transactions contemplated hereby and any other amounts required to be paid in connection with the consummation of the transactions contemplated hereby and all related fees and expenses of the Acquiror or its Affiliates (the “Debt Financing”) (it being understood that the arrangement or receipt of any such financing is not a condition to the Merger); provided provided, that the Buyer shall, promptly after such Debt Financing is obtained (x) provide Seller and the Company with written notice that such Debt Financing has been obtained and (y) deliver (or cause to be delivered) to Seller and the Company true, correct and complete copies of all arrangements pursuant to which any Financing Parties shall have committed to provide any portion of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further that, in no event shall the receipt Company or any of such Debt Financing its Subsidiaries be a condition to Closing and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by in breach of this Agreement because of (i) the failure to deliver, after use of reasonable best efforts to do so, any financial or other information that is not currently readily available as of the date hereof (or as of the date requested by Acquiror) or is not otherwise prepared in the ordinary course of the Company’s and its Subsidiaries’ respective businesses and operations at the time requested by Acquiror unless such failure to perform its obligations hereunder. Prior deliver any such information would result in the information previously provided by, or on behalf of, the Company containing an untrue statement of material fact or omitting to state any fact necessary to prevent such information from being materially misleading or (ii) the Closingfailure to obtain, subject after use of reasonable best efforts to Section 8.11.2do so, any review of any financial or other information by accountants or the furnishing of any reports or other information by accountants.
(b) For the avoidance of doubt, the Company shall use reasonable best efforts tonot be required to provide, and shall use reasonable best efforts or to cause the Company its Subsidiaries and or its and or their respective Representatives toto provide, in each case at Buyer’s sole expense, provide to Buyer such cooperation reasonably requested by Buyer under this Section 6.12 that is reasonably necessary in arranging, obtaining and syndicating the Debt Financing, if any (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere interferes with the operations ongoing business of the Group Companies), including as promptly as reasonably practical, (a) furnishing Buyer with Company or any of its Subsidiaries. Nothing in this Section 6.12 shall require the Required Financial Information and other pertinent information regarding the Group Companies as may be reasonably requested by Buyer for the completion of the Debt Financing, (b) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies in connection with the Debt Financing Company or its Subsidiaries to the extent reasonable and customary for financings of such type, (c) reasonably assisting in the preparation of (i) customary bank information memoranda, lender and investor presentations, offering documents, offering bear any out-of-pocket cost or private placement memoranda and other similar marketing documents and due diligence efforts expense for the Debt Financing and (iiwhich it has not received prior reimbursement pursuant to Section 6.12(c) customary authorization and representation letters, each as required or pay any fee in connection with the Debt Financing, authorizing the distribution of information to prospective lenders and containing a representation that the public side of such documents, if any, do not include any information about any Group Company or any securities of any Group Company that would constitute material non-public information within the meaning of the United States federal and state securities laws if any Group Company were a public reporting company, (d) using reasonable best efforts to cause the Company’s independent registered accounting firm to provide customary assistance, including (i) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) in connection with any capital markets transaction comprising a part of the Debt Financing, (ii) providing customary consents to the inclusion of their audit report in respect of any financial statements of the Company and the Company Subsidiaries in any offering documents relating to the Debt Financing and (iii) reasonable assistance and cooperation to Buyer with respect to any auditor due diligence, (e) subject to and conditioned on the occurrence of the Closing, the taking of customary corporate actions reasonably necessary to permit the consummation of and funding of the Debt Financing, (f) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth in any definitive document relating to the Debt Financing to the extent satisfaction of such condition requires the cooperation of, or is within the control of, the Group Companies, (g) delivering to Buyer at least three (3) Business Days prior to the Closing all such documentation and information as is reasonably requested in writing by Buyer at least ten (10) Business Days prior to the Closing to the extent required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act and the requirements of 31 C.F.R. §1010.230, (h) facilitating and assisting in the preparation and delivery of any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents relating to the Debt Financing relating to the Group Companies, and their respective businesses to be included in the definitive documents relating to the Debt Financing, and assist with the execution and delivery of the same, in each case, solely to the extent reasonable and customary for financings of such type, (i) cooperating with internal and external counsel of Buyer 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 Debt Financing, in each case, solely to the extent reasonable and customary for financings of such type, and (j) obtaining and providing documents to Buyer (including draft payoff letters) relating to the repayment of the Indebtedness and the release of related guarantees and Liens in accordance with the terms of this Agreement. The Company hereby consents, on behalf of itself and the Group Companies, to the use of the logos of the Group Companies in connection with the Debt Financing; provided that such logos are used solely in a manner that is not intended to, nor is reasonably likely to, harm or disparage the Company’s or any of its Affiliates’ reputation or goodwill.
8.11.2. Notwithstanding anything in this Agreement to the contrary, (a) no Group Company nor any of their respective Representatives shall be required, under the provisions of this Section 8.11 or otherwise in connection with the Debt Financing, to pay any commitment or other similar fee or enter into any binding agreement (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) or commitment or incur any other actual or potential liability or obligation in connection with the Debt Financing prior to the Closing that is not advanced by BuyerEffective Time, (biii) no Group Company enter into any binding agreement or any of their respective Representatives, managers, officers or employees shall be required to execute or enter into, perform or authorize any agreement with respect to the Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) that is not contingent upon the Closing or commitment that would be effective prior to the Closing Date, (c) no Representative, manager, officer or employee of any Group Company shall be required to deliver any certificate or take any other action pursuant to this Section 8.11 Effective Time and that does not terminate without liability to the extent any such action would reasonably be expected to result in personal liability to such RepresentativeCompany and its Subsidiaries upon termination of this Agreement, manager, officer or employee, (div) no Group Company or their respective Representatives shall be required to take any action that would reasonably be expected, in the reasonable judgment of the Company, to conflict with, or result in any violation or breach of, any applicable Laws, any organizational documents of any Group Company, any contract or obligations of confidentiality (not created in contemplation hereofA) binding on any Group Company, (e) no Group Company or any of their respective Representatives shall be required to take any action that would cause any condition to the Closing set forth herein to not be satisfied natural person serving as a director, manager, partner, officer, employee or otherwise cause any breach of this Agreement, (f) no Group Company or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, the Company has, in its good faith, determined is not true, (g) no Group Companies or their respective Representatives shall be required to provide, and the Buyer will be solely responsible for the preparation of: (1) pro forma financial information; (2) any description of all or any component of the Debt Financing; or (3) projections, risk factors or other forward-looking statements relating to all or any component of the Debt Financing; and (h) no Group Company shall be required to provide access to or disclose information that the Company determines would jeopardize any attorney–client privilege or other similar privilege agent of the Company or any of its Subsidiaries. Promptly Subsidiaries to incur any personal liability or (B) require the Company or any of its Subsidiaries to provide access to, or disclose, information that reasonably would be expected to result in the waiver of any attorney-client, work product or other applicable privilege or protection.
(c) Acquiror shall, promptly upon written request by the Company, Xxxxx will (i) reimburse the Company for any all reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred by the Company, the Company and its Subsidiaries or any of and its and their respective Representatives in connection with the cooperation of the Company, the Company Subsidiaries and their Representatives contemplated by respective obligations under this Section 8.11. Except in the case of fraud or a breach of this Agreement, Buyer shall 6.12 and (ii) indemnify, defend, defend and hold harmless the Group Companies Company and its Subsidiaries and their respective Representatives to the fullest extent permitted by applicable Law from and against any and all lossesLiability suffered, damagessustained or incurred by, awardsor asserted against, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecution, investigation, defense or settlement of any of the foregoing) and other amounts suffered them, directly or incurred by them in connection with (i) any action taken by them at the request of Buyer pursuant to indirectly relating to, or arising out of, this Section 8.11 or in connection with 6.12, the arrangement of the Debt Financing or (ii) any alternative financing or providing any of the information utilized in connection therewith, and whether in respect of direct claims, third-party claims or otherwise, other than to the extent any of the foregoing obligations shall survive termination of this Agreement and arises from (A) the occurrence Willful Breach of the Closing. In addition, no action, liability or obligation obligations of the Company, any of the Company its Subsidiaries or any of and their respective Representatives pursuant to under this Section 6.12 or any certificatefraud, agreementintentional misrepresentation, arrangementwillful misconduct, document bad faith or instrument relating to any Debt Financing (other than the execution gross negligence of the authorization letters referred to Company, its Subsidiaries or their respective Representatives or (B) material misstatements or omissions in clause (c)(ii) of Section 8.11.1) will be effective until information provided by the Closing Date. All materialCompany, non-public information regarding the Group Companies provided to Buyer its Subsidiaries or any of its their respective Representatives pursuant to this Section 8.11 shall be kept confidential by them in accordance with the Confidentiality Agreement except for disclosure to potential investors as required in connection with the Debt Financing subject to customary confidentiality protectionsor any alternative financing. Notwithstanding anything to The foregoing obligations in this Section 6.12(c) shall survive the contraryClosing or, if earlier, the Company termination of this Agreement. The provisions of this Section 6.12(c) are (i) intended to be for the benefit of, and shall be deemed to have complied with this Section 8.11 for all purposes of this Agreement (including Article 6 and Article 7) unless the Debt Financing has not been obtained primarily as a result enforceable by, each Subsidiary of the Company’s Willful Breach Company and its respective Representatives and, in the case of its obligations under this Section 8.11. Notwithstanding anything herein to the contraryRepresentatives who are natural persons, Xxxxx acknowledges his or her heirs, executors and agrees that obtaining any Debt Financing is not a condition to the Closingrepresentatives.
Appears in 1 contract
Samples: Merger Agreement (Vca Inc)
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (xa) provide Seller and the Company with written notice that such Debt Financing has been obtained and (y) deliver (or cause to be delivered) to Seller and the Company true, correct and complete copies of all arrangements pursuant to which any Financing Parties shall have committed to provide any portion of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further that, in no event shall the receipt of such Debt Financing be a condition to Closing and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. Prior to the Closing, subject Seller shall provide, and shall cause the Seller Group to Section 8.11.2, the Company shall use reasonable best efforts toprovide, and shall use commercially reasonable best efforts to cause the Company Subsidiaries and its and their respective Representatives toofficers, in each case at Buyer’s sole expensedirectors, employees, accountants, consultants, legal counsel, Affiliates and agents to provide to Buyer such cooperation reasonably requested by Buyer in connection with Buyer’s efforts to obtain debt financing (“Debt Financing”) to fund any or part of the Purchase Price from one or more current or potential debt financing sources (“Debt Financing Sources”) (provided, however, that is reasonably necessary in arrangingwith respect to any financial statements or other financial information, obtaining and syndicating such assistance shall be limited to the provision of the Requisite Financial Statement Information (defined below)) which have committed or that hereafter shall commit to provide or otherwise enter into agreements to provide any part of any such Debt Financing, if any which financing cooperation shall include, but not be limited to, the following:
(provided that such requested cooperation is consistent i) providing commercially reasonable assistance with applicable Laws providing customary historical financial and does not unreasonably interfere with the operations of the Group Companies)other factual information, including as promptly as oil and gas reserves attributable to, or with respect to the Assets to the extent reasonably practical, (a) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies as may be reasonably requested by Buyer necessary for the completion of the Debt Financing, (b) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies in connection with the Debt Financing to the extent reasonable and customary for financings of such type, (c) reasonably assisting in the preparation of (i) customary bank information memoranda, lender and investor presentations, offering documentsmarketing materials, offering or private placement memoranda rating agency presentations and other similar marketing documents in each case as customarily provided by companies of comparable size and due diligence efforts for comparable industry to Buyer in debt financing transactions and provided that, to the Debt Financing and (ii) customary authorization and representation letters, each as required in connection extent Buyer has requested Seller’s assistance with the Debt Financing, authorizing the distribution of information to prospective lenders and containing a representation that the public side of such documents, if any, do not include any information about any Group Company or any securities of any Group Company that would constitute material non-public information within the meaning of the United States federal and state securities laws if any Group Company were a public reporting company, (d) using reasonable best efforts to cause the Company’s independent registered accounting firm to provide customary assistance, including items specified in this clause (i) providing customary comfort letters (including “negative assurance comfort” ), Buyer will give Seller reasonable advance notice of and “change period comfort”) in connection with any capital markets transaction comprising a part of time to review the Debt Financing, foregoing;
(ii) providing customary consents documentation and other information with respect to the inclusion of their audit report in respect of Company which any financial statements of the Company and the Company Subsidiaries in any offering documents relating to Debt Financing Source providing or arranging the Debt Financing and (iii) reasonable assistance and cooperation to Buyer with respect to any auditor due diligence, (e) subject to and conditioned on the occurrence of the Closing, the taking of customary corporate actions has reasonably necessary to permit the consummation of and funding of the Debt Financing, (f) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth in any definitive document relating to the Debt Financing to the extent satisfaction of such condition requires the cooperation of, or determined is within the control of, the Group Companies, (g) delivering to Buyer at least three (3) Business Days prior to the Closing all such documentation and information as is reasonably requested in writing by Buyer at least ten (10) Business Days prior to the Closing to the extent required by U.S. regulatory authorities under applicable “know your customer”, “beneficial ownership” and anti-money laundering rules and regulations, including the PATRIOT Act Act;
(iii) providing commercially reasonable assistance to facilitate, in each case subject to Closing, the pledging, granting of security interests in, and otherwise granting of liens on, the requirements Assets which are conditions to the availability of 31 C.F.R. §1010.230, (h) facilitating and assisting in the preparation and delivery of any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents relating to the Debt Financing relating pursuant to customary pledge and security agreements and mortgages, in each case effective as of and contingent upon Closing, and provided that, to the Group Companiesextent Xxxxx has requested Xxxxxx’s assistance with items specified in this clause (iii), Buyer will give Seller reasonable advance notice of and their respective businesses time to be included in the definitive documents relating review and respond to the foregoing;
(iv) facilitating Buyer’s preparation of disclosure schedules and other property exhibits necessary to pledge and mortgage the Assets that will be collateral under any Debt Financing, including by providing commercially reasonable assistance in the review of disclosure schedules or property exhibits related to the Assets for completeness and assist with the execution and delivery of the same, accuracy in all material respects;
(v) in each case, case solely to the extent reasonable already in the possession of Seller, make available to Buyer, in accordance with and to the extent required under Section 9.1(d) and Section 9.18, customary for financings title documents and other information (including drilling and title opinions), reserve reports and lease operating statements in respect of such typethe Assets, and access to the Records;
(ivi) cooperating request from Seller’s reserve engineers’, auditors’ or accountants’ customary reserve engineers’, auditors’ or accountants’ comfort letters and consents solely with internal respect to any reserve information provided by Seller prior to the date hereof and external counsel the Requisite Financial Statement Information, as reasonably requested by Xxxxx; and
(vii) assistance with review of Buyer Buyer’s or Parent’s customary borrowing base certificate with respect to the Assets and delivery of appliable supporting information and documentation 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 Debt Financing, in each case, solely borrowing base certificate.
(b) Notwithstanding anything to the extent reasonable and customary for financings of such typecontrary contained in this Section 9.17, and (j) obtaining and providing documents to Buyer (including draft payoff letters) relating to the repayment of the Indebtedness and the release of related guarantees and Liens nothing in accordance with the terms of this Agreement. The Company hereby consentsSection 9.17 shall require Seller, on behalf of itself and the Group Companies, to the use of the logos of the Group Companies in connection with the Debt Financing; provided that such logos are used solely in a manner that is not intended to, nor is reasonably likely to, harm or disparage the Company’s or any of its Affiliates’ reputation , or goodwill.
8.11.2. Notwithstanding anything in this Agreement to the contrary, (a) no Group Company nor any of their respective Representatives shall be required, under equity holders or Affiliates of the provisions of this Section 8.11 same or otherwise its or their respective personnel and advisors to (i) incur any liability or obligation (including any indemnification obligation) in connection with the any Debt Financing, to Financing or pay any commitment or other similar fee or enter into any binding agreement (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) or commitment or incur any other actual or potential liability or obligation in connection with the any Debt Financing prior to the Closing or take any similar action, (ii) make available, provide or prepare any financial or other information that (x) is not advanced by Buyerin a format or not otherwise produced in Seller’s ordinary course of business, (by) no Group Company Seller is not required to make available to Buyer under Section 9.1(d) or Section 9.18 and (z) reasonably available to Seller or such Affiliate, (iii) take any action that would conflict with or violate such Person’s organizational documents, as applicable, or any of their respective Representativesapplicable Laws or result in a violation or breach of, managersor default under, officers or employees shall be required any Contract with a non-Affiliate to execute or enter intowhich such Person, perform or authorize any agreement with respect to the Debt Financing as applicable, is a party (other than the execution of the authorization letters referred to not created in clause (c)(ii) of Section 8.11.1) that is not contingent upon the Closing or that would be effective prior to the Closing Datecontemplation hereof), (civ) no Representativetake any action that could subject any director, manager, officer or employee of Seller to any Group Company shall be required to deliver any certificate actual or take any other action pursuant to this Section 8.11 to the extent any such action would reasonably be expected to result in potential personal liability to such Representative, manager, officer or employeeliability, (dv) no Group Company or their respective Representatives shall be required to take any action that would reasonably be expected, in the reasonable judgment of the Company, to conflict with, or result unreasonably interfere in any violation or breach of, any applicable Laws, any organizational documents material respect with the ongoing commercial operations of any Group Company, any contract or obligations of confidentiality (not created in contemplation hereof) binding on any Group CompanySeller and its Affiliates, (evi) no Group Company or any of their respective Representatives shall be required to take any action that would cause (or would be reasonably likely to cause) any representation, warranty or covenant in this Agreement to be untrue or breached, or cause any condition to the Closing set forth herein to not fail to be satisfied or otherwise cause any breach of this Agreement, (fvii) no Group Company or any of their respective Representatives shall be required to make pass resolutions or consents, approve or authorize the execution of, or execute any representationdocument, warranties agreement, certificate or certifications as instrument (other than customary authorization and representation letters) or take any other corporate action with respect to which, the Company hasDebt Financing that, in its good faitheach case, determined is not true, (g) no Group Companies or their respective Representatives shall would be required effective prior to provide, and the Buyer will be solely responsible for the preparation of: (1) pro forma financial information; (2) any description of all or any component of the Debt Financing; Closing or (3viii) projections, risk factors provide or other forward-looking statements relating to all or any component of the Debt Financing; and (h) no Group Company shall be required cause its legal counsel to provide access to or disclose information that the Company determines would jeopardize any attorney–client privilege or other similar privilege of the Company or any of its Subsidiaries. Promptly upon request by the Company, Xxxxx will reimburse the Company for any reasonable costs and expenses legal opinions.
(including reasonable attorneys’ feesc) incurred by the Company, the Company Subsidiaries or any of their Representatives in connection with the cooperation of the Company, the Company Subsidiaries and their Representatives contemplated by this Section 8.11. Except in the case of fraud or a breach of this Agreement, Buyer shall indemnify, defend, defend and hold harmless the Seller Group Companies and their respective Representatives from and against any and all losses, damages, awards, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecution, investigation, defense or settlement of any of the foregoing) and other amounts Losses suffered or incurred by them in connection with (i) any action taken by them at the request of Buyer pursuant to Seller’s obligations under this Section 8.11 or in connection with the arrangement of the Debt Financing or (ii) 9.17 and any information utilized in connection therewiththerewith or in connection with Xxxxx’s financing, other than with respect to any actions of Seller that constituted actual and intentional fraud in the foregoing performance of its obligations shall survive termination of this Agreement and the occurrence of the Closing. In addition, no action, liability or obligation of the Company, under Section 9.17(a) (i) for which any of the Company Subsidiaries or any individuals identified in the definition of their respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to any Debt Financing “Knowledge” had Knowledge and (other than the execution ii) as determined by a court of the authorization letters referred to competent jurisdiction in clause (c)(ii) of Section 8.11.1) will be effective until the Closing Date. All material, a final and non-public information regarding appealable judgment and, in the Group Companies provided event of such determination with respect to a Person, such Person being obligated to reimburse Buyer or any of its Representatives pursuant to this Section 8.11 shall be kept confidential for amounts expended by them in accordance with the Confidentiality Agreement except for disclosure to potential investors as required Xxxxx in connection with the Debt Financing subject to customary confidentiality protectionsdefense of such Person. Buyer shall promptly upon written request by Xxxxxx, reimburse Seller and its Affiliates for all reasonable and documented out-of-pocket costs and expenses (including reasonable and documented out-of-pocket attorneys’ fees) incurred by such Persons in connection with any cooperation contemplated by this Section 9.17.
(d) Notwithstanding anything to the contrarycontrary contained in this Agreement, the Company none of Seller’s, its Affiliates’ or their respective representatives’ performance under this Section 9.17 shall be taken into account with respect to whether any condition set forth in this Agreement shall be deemed satisfied, except to have complied with this Section 8.11 for all purposes of this Agreement (including Article 6 the extent that Seller has knowingly and Article 7) unless the Debt Financing has not been obtained primarily as a result of the Company’s Willful Breach of intentionally materially breached its obligations under this Section 8.11. Notwithstanding anything herein to the contrary, Xxxxx acknowledges and agrees that obtaining any Debt Financing is not a condition to the Closing9.17(a).
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Crescent Energy Co)
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (xa) provide Seller and the Company with written notice that such Debt Financing has been obtained and (y) deliver (or cause to be delivered) to Seller and the Company true, correct and complete copies of all arrangements pursuant to which any Financing Parties shall have committed to provide any portion of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further that, in no event shall the receipt of such Debt Financing be a condition to Closing and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. Prior to the Closing, subject to Section 8.11.2, the Company shall, shall use reasonable best efforts cause the other Group Companies to, and shall use reasonable best efforts to cause the Company Subsidiaries and its and instruct their respective Representatives to, in each case on a timely basis (at the Buyer’s sole cost and expense, ) provide to Buyer such reasonable cooperation reasonably requested by Buyer that is reasonably necessary in arranging, obtaining and syndicating the Debt Financing, if any (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the operations of the Group Companies), including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies as may be reasonably requested by the Buyer for in connection with the completion arrangement, marketing, syndication and consummation of the Debt Financing by the Buyer as may be reasonably requested by the Buyer and the Financing Entities in connection with the Financing, including using its commercially reasonable efforts to: (bi) participating assist in telephonic preparation for marketing efforts (including lender and investor meetings and otherwise reasonably assisting with the preparation of appropriate calls), other meetings and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies prospective lenders and investors; (ii) assist in the preparation of confidential information memoranda, offering memoranda and similar marketing documents for the Financing; (iii) as promptly as reasonably practicable, inform the Buyer if any officer the Company or any Group Company shall have knowledge of any facts that would likely require the restatement of the Company Financial Statements; (iv) to the extent not provided prior to the date hereof, provide as promptly as is reasonably practicable the Company Financial Statements (which shall be consistent in all material respects with the Draft Company Financial Statements) and any information reasonably requested by Buyer in writing in connection with Buyer’s preparation of pro forma financial information and financial statements; (v) directing the chief financial officer or any other officer with appropriate authority of any Group Company to execute and deliver on behalf of any Group Company (but not to be effective before the Closing) any pledge and security documents, other definitive financing documents, or other certificates, or documents, in each case as may be reasonably requested by the Buyer in connection with the Debt Financing to the extent reasonable and customary for financings of such type, (c) reasonably assisting in the preparation of (i) customary bank information memoranda, lender and investor presentations, offering documents, offering or private placement memoranda and other similar marketing documents and due diligence efforts for the Debt Financing and otherwise facilitate the pledging of collateral (ii) customary authorization and representation letters, each as required including cooperation in connection with the Debt Financing, authorizing the distribution of information to prospective lenders and containing a representation that the public side of such documents, if any, do not include any information about any Group Company or any securities pay-off of any Group Company that would constitute material non-public information within the meaning of the United States federal and state securities laws if any Group Company were a public reporting company, (d) using reasonable best efforts to cause the Company’s independent registered accounting firm to provide customary assistance, including (i) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) in connection with any capital markets transaction comprising a part of the Debt Financing, (ii) providing customary consents to the inclusion of their audit report in respect of any financial statements of the Company debt and the Company Subsidiaries in any offering documents relating to the Debt Financing release of related Liens and termination of security interest); (iiivi) reasonable assistance and cooperation to Buyer with respect to any auditor due diligencetake all corporate actions, (e) subject to and conditioned on the occurrence of the Closing, reasonably requested by the taking of customary corporate actions reasonably Buyer that are necessary to permit the consummation of the Financing and funding of to permit the Debt Financing, proceeds thereof to be made available on the Closing Date to consummate the transactions contemplated hereby; and (fvii) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth in any definitive document relating to the Debt Financing to the extent satisfaction of such condition requires the cooperation of, or is within the control of, the Group Companies, (g) delivering to Buyer provide at least three five (35) Business Days prior to the Closing Date all such documentation and other information about the Company and any Group Company as is reasonably requested in writing by Buyer at least ten (10) Business Days prior to the Closing to the extent required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, regulations including the USA PATRIOT Act and the requirements of 31 C.F.R. §1010.230, (h) facilitating and assisting in the preparation and delivery of any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents relating to the Debt Financing relating to the Group Companies, and their respective businesses to be included in the definitive documents relating to the Debt Financing, and assist with the execution and delivery of the same, in each case, solely to the extent reasonable and customary for financings of such type, requested at least eight (i) cooperating with internal and external counsel of Buyer 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 Debt Financing, in each case, solely 8) Business Days prior to the extent reasonable and customary for financings of such type, and (j) obtaining and providing documents to Buyer (including draft payoff letters) relating to the repayment of the Indebtedness and the release of related guarantees and Liens in accordance with the terms of this Agreementanticipated Closing Date. The Company hereby consents, on behalf of itself and the Group Companies, consents to the use of the logos of the Company and the other Group Companies solely in connection with the Debt Financing; provided that such logos are used solely in a manner that is not intended . Prior to the Closing, the Company shall, and shall cause the other Group Companies to, nor is reasonably likely touse its commercially reasonable efforts to cause its independent auditors to provide, harm or disparage consistent with customary practice, (A) reasonable assistance in the Company’s or any preparation of its Affiliates’ reputation or goodwillpro forma financial statements and (B) reasonable assistance and cooperation to the Buyer, including attending accounting due diligence sessions.
8.11.2. (b) Notwithstanding anything in this Agreement any provision herein to the contrary, (ai) no Group Company nor any of their respective Representatives such cooperation described in Section 6.4(a) shall be required, under not (A) unreasonably disrupt the provisions of this Section 8.11 or otherwise in connection with the Debt Financing, to pay any commitment or other similar fee or enter into any binding agreement (other than the execution operations of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) or commitment or incur any other actual or potential liability or obligation in connection with the Debt Financing prior to the Closing that is not advanced by BuyerGroup Company, (bB) no require any Group Company or any of their respective Representativesdirectors, managersmembers, managers or officers to pass resolutions or employees shall be required to execute consents, or enter into, perform approve or authorize the execution of, or execute any agreement document, agreement, certificate or instrument or take any other corporate action with respect to the Debt Financing unless effective no earlier than (and conditioned upon) the Closing, or (C) require any Group Company to provide any projections or other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) forward-looking financial information or financial data, or any historical financial statements that is not contingent upon the Closing or that would be effective prior to the Closing Date, (c) no Representative, manager, officer or employee of any Group Company shall be required to deliver any certificate or take any other action pursuant to this Section 8.11 to the extent any such action would reasonably be expected to result in personal liability to such Representative, manager, officer or employee, (d) no Group Company or their respective Representatives shall be required to take any action that would reasonably be expected, in the reasonable judgment readily available as of the Company, to conflict with, or result in any violation or breach of, any applicable Laws, any organizational documents of any Group Company, any contract or obligations of confidentiality (not created in contemplation hereof) binding on any Group Company, (e) no Group Company or any of their respective Representatives shall be required to take any action that would cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach execution and delivery of this Agreement, (f) no Group Company or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, the Company has, in its good faith, determined is not true, (g) no Group Companies or their respective Representatives shall be required to provide, and the Buyer will be solely responsible for the preparation of: (1) pro forma financial information; (2) any description of all or any component of the Debt Financing; or (3) projections, risk factors or other forward-looking statements relating to all or any component of the Debt Financing; and (hii) no Group Company shall be required to provide access to or disclose information that the Company determines would jeopardize (A) pay any attorney–client privilege commitment or other similar privilege of fee prior to the Company or any of its Subsidiaries. Promptly upon request Closing unless reimbursed in full by the Company, Xxxxx will reimburse Buyer at or prior to the Company for Closing or (B) incur or assume any reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Company, the Company Subsidiaries or any of their Representatives liability in connection with the cooperation of Financing prior to the CompanyClosing unless effective no earlier than (and conditioned upon) the Closing, and (iii) the Group Companies and their respective directors, managers, officers or employees shall not be required to execute, deliver or enter into, or perform any contract, agreement, document or instrument with respect to the Financing unless effective no earlier than (and conditioned upon) the Closing; provided that the Buyer shall reimburse the Company Subsidiaries in full for its reasonable and their Representatives contemplated by this Section 8.11. Except documented out of pocket costs and expenses incurred in connection with such cooperation at or prior to the case of fraud or a breach of this Agreement, Closing.
(c) The Buyer shall indemnify, defend, and hold harmless the Group Companies and their respective Representatives officers, employees, directors, advisors and other representatives from and against any and all losses, damages, awards, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, Damages and reasonable and documented out-of-pocket expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecution, investigation, defense or settlement of any of the foregoing) and other amounts suffered or incurred by them in connection with (i) any action taken by them at the request of Buyer pursuant to this Section 8.11 or Financing and the Group Companies’ assistance in connection with the arrangement of the Debt Financing or (ii) and any information utilized in connection therewiththerewith except to the extent such Damages arose out of or resulted from the gross negligence, and the foregoing obligations shall survive termination Fraud or intentional misrepresentation of this Agreement and the occurrence of the Closing. In addition, no action, liability or obligation of the Company, any of the Company Subsidiaries or any of their respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to any Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) will be effective until the Closing Date. All material, non-public information regarding the Group Companies provided to or their respective officers, employees, directors, advisors and other representatives.
(d) The Buyer or any of its Representatives pursuant to this Section 8.11 shall be kept confidential by them in accordance with the Confidentiality Agreement except for disclosure to potential investors as required in connection with the Debt Financing subject to customary confidentiality protections. Notwithstanding anything to the contrary, the Company shall be deemed to have complied with this Section 8.11 for all purposes of this Agreement (including Article 6 and Article 7) unless the Debt Financing has not been obtained primarily as a result of the Company’s Willful Breach of its obligations under this Section 8.11. Notwithstanding anything herein to the contrary, Xxxxx expressly acknowledges and agrees that obtaining the Closing shall in no way be conditioned on or subject to its receipt of the Financing (or any Debt Financing is not a condition to the Closingportion thereof).
Appears in 1 contract
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund (a) In connection with any portion contemplated obtainment of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (x) provide Seller and the Company with written notice that such Debt Financing has been obtained and (y) deliver (or cause to be delivered) to Seller and the Company true, correct and complete copies of all arrangements pursuant to which any Financing Parties shall have committed to provide any portion of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further that, in no event shall the receipt of such Debt Financing be a condition to Closing and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. Prior prior to the Closing, at Buyers’ expense to the extent subject to the expense reimbursement provisions in Section 8.11.27.26(b), the Company Seller shall use reasonable best efforts to, to provide (and shall use reasonable best efforts to cause the Company Subsidiaries and its and their respective Representatives to, in each case to provide) to Buyers (at Buyer’s Buyers’ sole expense, provide to Buyer ) such cooperation reasonably requested by Buyer that is reasonably necessary in arranging, obtaining and syndicating the Debt Financing, if any (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the operations of the Group Companies), including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies as may be reasonably requested by Buyer for the completion of Buyers to assist them in arranging and obtaining the Debt Financing, subject to Section 7.26(b). Such cooperation shall include, but not be limited to: (ba) participating in telephonic meetings (x) furnishing on a confidential basis to Buyers and otherwise reasonably assisting their Representatives and the Financing Sources (A) the Required Information and (B) within a reasonable time period consistent with the preparation of appropriate Seller’s past practice, such other historical financial information and customary materials customary presentationsother pertinent historical information reasonably available to the Seller regarding the Business, due diligence sessions (including accounting due diligence sessions) the Purchased Assets and sessions with rating agencies the Assumed Obligations as may be reasonably requested by Buyers in connection with the Debt Financing and (y) reasonably cooperate to update any Required Information in order to cause such Required Information to be Compliant; provided that such assistance shall be limited solely with respect to information and data derived from the extent Seller’s historical books and records; (b) participation in a reasonable number (with reasonable advance notice) of meetings, presentations, road shows, due diligence sessions and drafting sessions with prospective lenders and with rating agencies, including direct contact between senior management of Seller, on the one hand, and the actual and potential Financing Sources, on the other hand, and other customary for financings of such typesyndication activities, (c) reasonably assisting cooperating in satisfying the conditions precedent set forth in the preparation Debt Financing Commitment Letters to the extent satisfaction of any such condition is within the control of Seller, (id) customary bank providing information memorandaregarding the Business, lender the Purchased Assets and investor the Assumed Obligations as may be reasonably requested by Buyers to assist Buyers in preparing materials for rating agency presentations, offering documents, offering or private placement memoranda memoranda, bank information memoranda, prospectuses (registered or otherwise) and other similar marketing documents reasonably and due diligence efforts for customarily used to complete the Debt Financing Financing, (e) using commercially reasonable efforts to assist Buyers in the preparation of customary pro forma financial statements (it being agreed that the preparation of any such pro forma financial statements will be the responsibility of Buyers and not the Seller); provided, that neither the Seller or its Representatives shall be required to provide any such assistance with respect to financial information or statements relating to (iiA) customary authorization the determination of the proposed aggregate amount of the Debt Financing, the interest rates thereunder or the fees and representation lettersexpenses relating thereto or (B) the determination of any post-Closing or pro forma cost savings, each as required synergies, capitalization, ownership or other pro forma adjustments desired to be incorporated into any information used in connection with the Debt Financing; provided, further, that (x) such assistance shall be limited solely with respect to information and data derived from the Seller’s historical books and records reasonably available to the Seller and (y) neither Seller nor its Representatives shall be required to certify or attest to any such pro forma financial statements or other forecasted information, (f) to the extent required by the Financing Sources, providing customary authorization letters authorizing the distribution of information to prospective lenders Financing Sources regarding the Business, subject to customary terms and containing a representation that the public side of such documents, if any, do not include any information about any Group Company or any securities of any Group Company that would constitute material non-public information within the meaning of the United States federal and state securities laws if any Group Company were a public reporting companyconditions, (dg) using reasonable best efforts to cause the Companyreasonably cooperating with Xxxxx’s independent registered accounting firm to provide customary assistance, including (i) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) legal counsel in connection with any capital markets transaction comprising a part of the Debt Financing, (ii) providing customary consents to the inclusion of their audit report in respect of any financial statements of the Company and the Company Subsidiaries in any offering documents relating to the Debt Financing and (iii) reasonable assistance and cooperation to Buyer with respect to any auditor due diligence, (e) subject to and conditioned on the occurrence of the Closing, the taking of customary corporate actions reasonably necessary to permit the consummation of and funding of the Debt Financing, (f) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth in any definitive document relating to the Debt Financing to the extent satisfaction of such condition requires the cooperation of, or is within the control of, the Group Companies, (g) delivering to Buyer at least three (3) Business Days prior to the Closing all such documentation and information as is reasonably requested in writing by Buyer at least ten (10) Business Days prior to the Closing to the extent required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act and the requirements of 31 C.F.R. §1010.230, (h) facilitating and assisting in the preparation and delivery of any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents relating to the Debt Financing relating to the Group Companies, and their respective businesses to be included in the definitive documents relating to the Debt Financing, and assist with the execution and delivery of the same, in each case, solely to the extent reasonable and customary for financings of such type, (i) cooperating with internal and external counsel of Buyer in connection with providing customary back-up certificates and factual information regarding any legal opinion opinions that such legal counsel may be required to deliver in connection with the Debt Financing, (h) assisting Buyer in obtaining surveys and title insurance, provided, that Seller’s cooperation with respect to title insurance shall be limited solely to providing (I) owner’s affidavits substantially in the form of Exhibit F attached hereto with respect to any interests in Owned Real Property held by the Seller, (II) evidence of corporate authority and organizational documents customarily delivered to title companies in connection with the issuance of customary owner’s title policies, and (III) customary transfer tax declaration forms and similar instruments customarily delivered in connection with the transfer of an interest in real property in the state where such real property is located, (i) assisting in the preparation of any collateral schedules pertaining to the Purchased Assets in connection with the granting of security interests by the Buyers on the Closing Date and obtaining releases of existing liens on the Purchased Assets (other than Permitted Encumbrances); provided that any granting of security interests (and perfection thereof) in collateral, obligations related to any guarantees, mortgages, other definitive financing documents or other certificates or documents and releases of liens contained in all such agreements and documents shall be, in each case, solely subject to the extent reasonable and customary for financings occurrence of such typethe Closing, and (ji) assisting Buyer in obtaining and providing documents to Buyer from the Sellers’ auditors comfort letters (including draft payoff lettersas to negative assurances) relating to the repayment of the Indebtedness and the release of related guarantees and Liens in accordance with the terms of this Agreement. The Company hereby consents, on behalf of itself and the Group Companies, to the use of the logos of the Group Companies in connection with the Debt Financing; provided that such logos are used solely Financing and (j) providing, at least five Business Days prior to the Closing Date, all documentation required with respect to Labo by applicable “know your customer” and anti-money laundering Laws, including the USA PATRIOT Act, to the extent requested in a manner that is not intended to, nor is reasonably likely to, harm or disparage writing at least ten Business Days prior to the Company’s or any of its Affiliates’ reputation or goodwillClosing Date.
8.11.2. Notwithstanding anything (b) Nothing in this Agreement Section 7.26 will require the Seller to the contrary, (ai) no Group Company nor any of their respective Representatives shall be required, under the provisions of this Section 8.11 or otherwise in connection with the Debt Financing, to pay any commitment or other similar fee or enter into any binding agreement (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) or commitment or incur any other actual or potential liability or obligation in connection with the Debt Financing Financing; (ii) waive or amend any terms of this Agreement or agree to pay or reimburse any expenses for which it has not received prior to the Closing that reimbursement or is not advanced otherwise indemnified by Buyeror on behalf of Buyers; (iii) approve, (b) no Group Company or any of their respective Representatives, managers, officers or employees shall be required to execute or enter into, perform or authorize deliver any definitive agreement with respect to the (including any Debt Financing Agreement) (other than except, in the execution case of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) that is not contingent upon the Closing or Labo, any definitive agreement that would not be effective prior to the Closing Date); (iv) give any indemnities in connection with the Debt Financing; (v) take any action that, except for the delivery of the Required Information, in the good faith determination of the Seller, would adversely or unreasonably interfere with the conduct of the business or operations of the Seller and its Affiliates or create an unreasonable risk of damage or destruction to any property or assets of the Seller or any of its Affiliates; (vi) adopt resolutions (whether by the board of directors of the Seller or otherwise) approving the agreements, documents and instruments pursuant to which the Debt Financing is obtained; (vii) provide any assistance or cooperation that (A) would cause any representation or warranty in this Agreement to be breached, or (B) cause any conditions to Closing set forth in Article VIII to fail to be satisfied by the Termination Date or otherwise result in a breach of this Agreement; (viii) provide any financial (or other information) except for the Required Information that (1) is not produced in the ordinary course of business, (c2) no Representative, manager, officer or employee of any Group Company shall be is not required to deliver any certificate be provided pursuant to the terms of the documentation governing the Indebtedness of the Seller or (3) cannot be produced or provided without unreasonable cost or expense; (ix) take any action other action pursuant to this Section 8.11 to the extent any such action would reasonably be expected to result in personal liability to such Representative, manager, officer or employee, than at Buyers’ request and with reasonable prior notice; (dx) no Group Company or their respective Representatives shall be required to take any action that would reasonably be expected, in the reasonable judgment of the Company, to conflict with, violate or result in any violation a breach of or breach of, any applicable Laws, any default under its organizational documents of or any Group Company, any material contract or obligations of confidentiality (not created in contemplation hereof) binding on any Group Company, (e) no Group Company law to which it or any of their respective Representatives shall be required to take any action that would cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement, (f) no Group Company or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, the Company has, in its good faith, determined property is not true, (g) no Group Companies or their respective Representatives shall be required to provide, and the Buyer will be solely responsible for the preparation of: (1) pro forma financial informationbound; (2xi) any description of all or any component of the Debt Financing; or (3) projections, risk factors or other forward-looking statements relating to all or any component of the Debt Financing; and (h) no Group Company shall be required to provide access to or disclose information that the Company Seller determines in good faith (after consultation with counsel) would jeopardize any attorney–attorney client privilege of, or other similar privilege of conflict with any confidentiality requirements applicable to, the Company Seller or any of its SubsidiariesAffiliates or (xii) deliver or cause the delivery of any legal opinions. Promptly In addition, any bank information memoranda and high-yield offering prospectuses or memoranda required in relation to the Debt Financing will contain disclosure reflecting Buyers or one or more Affiliates of Buyers as the obligor. Nothing in this Section 7.26 will require any Representative of the Seller or any of its Affiliates to deliver any document, or take any action that would reasonably be expected to result in any actual or potential personal liability to such Representative. Buyers shall promptly, upon request by the CompanySeller (and in any event within ten (10) Business Days of such request), Xxxxx will reimburse the Company Seller for any all reasonable and documented out-of-pocket costs and expenses incurred by the Seller or any of its Affiliates (including reasonable and documented attorneys’ fees and accountants’ fees) incurred by the Company, the Company Subsidiaries or any of their Representatives in connection with the its cooperation of the Company, the Company Subsidiaries and their Representatives contemplated by this Section 8.11. Except in the case of fraud or a breach of this Agreement, Buyer 7.26.
(c) Buyers shall indemnify, defend, indemnify and hold harmless the Group Companies Seller and its Affiliates and their respective directors, officers employees and other Representatives from and against any and all losses, damages, awards, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecution, investigation, defense or settlement of any of the foregoing) and other amounts Losses suffered or incurred by them in connection with (i) the arrangement and completion of any action taken Debt Financing, capital markets transactions or related transactions by them at the request of Buyer pursuant to this Section 8.11 or Buyers in connection with financing the arrangement of the Debt Financing or (ii) Transactions and any information utilized in connection therewith, and the foregoing obligations . This Section 7.26(c) shall survive the consummation of the Closing and any termination of this Agreement Agreement, and is intended to benefit, and may be enforced by, the occurrence officers and directors of the Closing. In addition, no action, liability or obligation of the Company, any of the Company Subsidiaries or any of Seller and its Affiliates and their respective Representatives pursuant to any certificateheirs, agreementexecutors, arrangement, document or instrument relating to any Debt Financing (other than the execution estates and personal representatives who are each third party beneficiaries of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) will be effective until the Closing Date. All material, non-public information regarding the Group Companies provided to Buyer or any of its Representatives pursuant to this Section 8.11 shall be kept confidential by them in accordance with the Confidentiality Agreement except for disclosure to potential investors as required in connection with the Debt Financing subject to customary confidentiality protections. Notwithstanding anything to the contrary, the Company shall be deemed to have complied with this Section 8.11 for all purposes of this Agreement (including Article 6 and Article 7) unless the Debt Financing has not been obtained primarily as a result of the Company’s Willful Breach of its obligations under this Section 8.11. Notwithstanding anything herein to the contrary, Xxxxx acknowledges and agrees that obtaining any Debt Financing is not a condition to the Closing7.26(c).
Appears in 1 contract
Samples: Asset Purchase Agreement (Centerpoint Energy Resources Corp)
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (xa) provide Seller and the Company with written notice that such Debt Financing has been obtained and (y) deliver (or cause to be delivered) to Seller and the Company true, correct and complete copies of all arrangements pursuant to which any Financing Parties shall have committed to provide any portion of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further that, in no event shall the receipt of such Debt Financing be a condition to Closing and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. Prior to the Closing, subject to Section 8.11.2Company shall, the Company and shall use reasonable best efforts cause its Subsidiaries and its and their officers, directors and employees to, and shall use its reasonable best efforts to cause the Company Subsidiaries and its and their respective other Representatives to, in each case at Buyer’s sole expense, use reasonable best efforts to provide to Buyer such all reasonable cooperation reasonably requested by Buyer that is reasonably necessary in arranging, obtaining and syndicating the Debt Financing, if any (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the operations of the Group Companies), including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies as may be reasonably requested by Buyer for the completion of the Debt Financing, (b) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies in connection with the Debt Financing to the extent reasonable and customary for financings of such type, (c) reasonably assisting in the preparation of (i) customary bank information memoranda, lender and investor presentations, offering documents, offering or private placement memoranda and other similar marketing documents and due diligence efforts for the Debt Financing and (ii) customary authorization and representation letters, each as required Parent in connection with the Debt Financing, and such reasonable best efforts shall include (i) furnishing Parent with financial and other pertinent information regarding the Company and its Subsidiaries, including providing Parent with the information required pursuant to the Debt Commitment Letter (all such information, the “Required Information”), and any supplements to the Required Information reasonably requested by Parent; (ii) participating in a reasonable number of meetings and due diligence sessions; (iii) furnishing Parent with pertinent information regarding the assets and operations of the Company and its Subsidiaries as is customary in connection with the Debt Financing and any security required therefor; (iv) using reasonable best efforts to obtain such UCC, bankruptcy, litigation and similar lien searches reasonably requested by Parent and consistent with the requirements of Parent or its lenders; (v) taking all corporate actions (including amendments to the Organizational Documents of the Company’s wholly owned Subsidiaries) reasonably requested by Parent to permit the consummation of the Debt Financing; (vi) causing the Company to execute and deliver any pledge and security documents, definitive financing documents or other certificates or documents or otherwise facilitate the pledging of collateral for delivery at the consummation of the Debt Financing on and as of the Closing, in each case as may be reasonably requested by Parent; (vii) using reasonable best efforts to provide, if requested by Parent, authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders and containing a representation that the public side of such documents, if any, do not include any information about any Group Company or any securities of any Group Company that would constitute material non-public information within the meaning of the United States federal and state securities laws if any Group Company were a public reporting company, lenders; (dviii) using reasonable best efforts to cause the Company’s independent registered accounting firm to provide customary assistanceprovide, including (i) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) in connection with any capital markets transaction comprising a part of the Debt Financing, (ii) providing customary consents to the inclusion of their audit report in respect of any financial statements of the Company and the Company Subsidiaries in any offering documents relating to the Debt Financing and (iii) reasonable assistance and cooperation to Buyer with respect to any auditor due diligence, (e) subject to and conditioned on the occurrence of the Closing, the taking of customary corporate actions reasonably necessary to permit the consummation of and funding of the Debt Financing, (f) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth in any definitive document relating to the Debt Financing to the extent satisfaction of such condition requires the cooperation of, or is within the control of, the Group Companies, (g) delivering to Buyer at least three (3) Business Days prior to the Closing all such documentation and information as is reasonably requested in writing by Buyer at least ten (10) Business Days prior to the Closing Closing, all documentation and other information about Company and each of its Subsidiaries as is reasonably requested in writing by Parent which relates to the extent required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulationsregulations including without limitation the USA PATRIOT ACT, including the PATRIOT Act and the requirements of 31 C.F.R. §1010.230provided, that if any request is made with respect to such materials less than thirty (h30) facilitating and assisting in the preparation and delivery of any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents relating Business Days prior to the Debt Closing, such documentation and information shall be provided as soon as practicable after a reasonable request therefor; and (ix) using reasonable best efforts to take all actions reasonably necessary to permit the Financing Sources to evaluate Company’s inventory, current assets, cash management and accounting systems, policies and procedures relating thereto. Any information provided by Company in connection with this Section 5.18(b) shall be prepared in good faith.
(b) Nothing in Section 5.18(a) shall require the Company to the Group Companies, and their respective businesses to be included in the definitive documents relating to the Debt Financing, and assist with the execution and delivery of the same, in each case, solely (i) take any action to the extent reasonable and customary for financings of such typethat it would unreasonably interfere with its ongoing business or operations, (iii) cooperating with internal and external counsel of Buyer 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 Debt Financing, in each case, solely to the extent reasonable and customary for financings of such type, and (j) obtaining and providing documents to Buyer (including draft payoff letters) relating to the repayment of the Indebtedness and the release of related guarantees and Liens in accordance with the terms of this Agreement. The Company hereby consents, on behalf of itself and the Group Companies, to the use of the logos of the Group Companies in connection with the Debt Financing; provided that such logos are used solely in a manner that is not intended to, nor is reasonably likely to, harm or disparage the Company’s or any of its Affiliates’ reputation or goodwill.
8.11.2. Notwithstanding anything in this Agreement to the contrary, (a) no Group Company nor any of their respective Representatives shall be required, under the provisions of this Section 8.11 or otherwise in connection with the Debt Financing, to pay any commitment or other similar fee or enter into any binding agreement (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) or commitment or incur any other actual or potential liability or obligation in connection with the Debt Financing prior document related to the Closing that is not advanced by Buyer, (b) no Group Company or any of their respective Representatives, managers, officers or employees shall be required to execute or enter into, perform or authorize any agreement with respect to the Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) that is not contingent upon the Closing or financing that would be effective prior to the Closing Date, (including amendments to Organizational Documents) or (iii) pay any commitment or other fees unless promptly reimbursed in accordance with Section 5.18(c).
(c) no Representative, manager, officer or employee of any Group Company Parent shall be required to deliver any certificate or take any other action pursuant to this Section 8.11 to the extent any such action would reasonably be expected to result in personal liability to such Representative, manager, officer or employee, (di) no Group Company or their respective Representatives shall be required to take any action that would reasonably be expected, in the reasonable judgment of the Company, to conflict with, or result in any violation or breach of, any applicable Laws, any organizational documents of any Group Company, any contract or obligations of confidentiality (not created in contemplation hereof) binding on any Group Company, (e) no Group Company or any of their respective Representatives shall be required to take any action that would cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement, (f) no Group Company or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, the Company has, in its good faith, determined is not true, (g) no Group Companies or their respective Representatives shall be required to provide, and the Buyer will be solely responsible for the preparation of: (1) pro forma financial information; (2) any description of all or any component of the Debt Financing; or (3) projections, risk factors or other forward-looking statements relating to all or any component of the Debt Financing; and (h) no Group Company shall be required to provide access to or disclose information that the Company determines would jeopardize any attorney–client privilege or other similar privilege of the Company or any of its Subsidiaries. Promptly promptly upon request by the Company, Xxxxx will reimburse the Company for any all reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred by the Company, the Company Subsidiaries or any of their Representatives its Subsidiaries in connection with providing the cooperation of the Company, the Company Subsidiaries and their Representatives assistance contemplated by this Section 8.11. Except in the case of fraud or a breach of this Agreement, Buyer shall indemnify, defend, 5.18 and (ii) indemnify and hold harmless the Group Companies Company and their respective Representatives its Subsidiaries from and against any and all losses, damages, awards, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecution, investigation, defense obligations or settlement of any of the foregoing) and other amounts liabilities suffered or incurred by them in connection with (i) any action taken by them at the request of Buyer pursuant to this Section 8.11 or in connection with the arrangement of the Debt Financing or (ii) any information utilized in connection therewith, and the foregoing obligations shall survive termination of this Agreement and the occurrence of the Closing. In addition, no action, liability or obligation of the Company, any of the Company Subsidiaries or any of their respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to any Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) will be effective until the Closing Date. All material, non-public information regarding the Group Companies provided to Buyer or any of its Representatives pursuant to this Section 8.11 shall be kept confidential by them in accordance with the Confidentiality Agreement except for disclosure to potential investors as required in connection with the Debt Financing subject or any assistance or activities in connection therewith (other than with respect to customary confidentiality protections. Notwithstanding anything information relating to the contrary, Company and its Subsidiaries provided by the Company shall be deemed pursuant to have complied with this Section 8.11 for all purposes of this Agreement (including Article 6 and Article 7) unless 5.18 or to the Debt Financing has not been obtained primarily as a result extent such liability or obligation arise from gross negligence, willful misconduct or bad faith of the Company’s Willful Breach , its Subsidiaries or any of its obligations under this Section 8.11. Notwithstanding anything herein to the contrary, Xxxxx acknowledges and agrees that obtaining any Debt Financing is not a condition to the Closingtheir Representatives).
Appears in 1 contract
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion 6.6.1 Until the earlier of the Purchase Price (Closing and such time as this Agreement is terminated in accordance with the “Debt Financing”); provided that terms hereof, the Buyer Seller shall, promptly after such Debt Financing is obtained (x) provide Seller and the Company with written notice that such Debt Financing has been obtained and (y) deliver (or cause to be delivered) to Seller and the Company true, correct and complete copies of all arrangements pursuant to which any Financing Parties shall have committed to provide any portion of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further that, in no event shall the receipt of such Debt Financing be a condition to Closing and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. Prior to the Closing, subject to Section 8.11.2, the Company shall use reasonable best efforts to, and shall use reasonable best efforts to cause the Company Subsidiaries and its and their respective Representatives to, in each case at Buyer’s sole expense, provide expense (other than with respect to Buyer such cooperation reasonably requested the matters contemplated by Buyer that is reasonably necessary in arranging, obtaining and syndicating the Debt Financing, if any clause (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the operations of the Group Companiesi)(C) below), including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies as may be reasonably requested by Buyer for the completion of the Debt Financing, (b) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies in connection with the Debt Financing to the extent reasonable and customary for financings of such type, (c) reasonably assisting in the preparation of (i) customary bank information memoranda, lender and investor presentations, offering documents, offering or private placement memoranda and other similar marketing documents and due diligence efforts for the Debt Financing and furnish to Buyer (iiA) customary authorization and representation letters, each as required in connection with the Debt Financing, authorizing the distribution of information to prospective lenders and containing a representation that the public side of such documents, if any, do not include any information about any Group Company or any securities of any Group Company that would constitute material non-public information within the meaning of the United States federal and state securities laws if any Group Company were a public reporting companyall Required Information, (dB) using reasonable best efforts to cause the Company’s independent registered accounting firm to provide customary assistance, including (i) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) in connection with any capital markets transaction comprising a part of the Debt Financing, (ii) providing customary consents to the inclusion of their audit report in respect of any financial statements of the Company and the Company Subsidiaries in any offering documents relating to the Debt Financing and (iii) reasonable assistance and cooperation to Buyer with respect to any auditor due diligence, (e) subject to and conditioned on the occurrence of the Closing, the taking of customary corporate actions reasonably necessary to permit the consummation of and funding of the Debt Financing, (f) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth in any definitive document relating to the Debt Financing to the extent satisfaction of such condition requires the cooperation of, or is within the control of, the Group Companies, (g) delivering to Buyer at least three five (35) Business Days prior to the Closing all such documentation and information Date, the Debt Financing Deliverables as is are reasonably requested in writing by Buyer at least ten (10) Business Days prior to the Closing Date; provided, that failure by Seller to provide Buyer with the extent required by U.S. regulatory authorities under applicable “know your customer” Required Information and anti-money laundering rules Debt Financing Deliverables within the time period specified above shall not result in failure to satisfy the condition in Section 8.1.2, unless such failure results from a Willful Breach and regulations, including is the PATRIOT Act and primary cause of Buyer being unable to obtain the requirements proceeds of 31 C.F.R. §1010.230, (h) facilitating and assisting in the preparation and delivery of any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents relating to the Debt Financing relating to the Group Companies, and their respective businesses to be included in the definitive documents relating to the Debt Financing, and assist with the execution and delivery of the same, in each case, solely to the extent reasonable and customary for financings of such type, (i) cooperating with internal and external counsel of Buyer 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 Debt Financing, in each case, solely to the extent reasonable and customary for financings of such typeat Closing, and (jC) obtaining (x) the Release Documents and providing documents (y) either (I) the Credit Agreement Amendment or (II) customary executed payoff, termination and release documentation (collectively, the “Payoff Letters”) necessary to Buyer (including draft payoff letters) relating to the repayment of the Indebtedness and the release of related guarantees and Liens in accordance with the terms of this Agreement. The Company hereby consentsevidence, on behalf of itself and the Group Companies, to the use of the logos of the Group Companies in connection with the Debt Financing; provided that such logos are used solely in a manner that is not intended to, nor is reasonably likely to, harm or disparage the Company’s or any of its Affiliates’ reputation or goodwill.
8.11.2. Notwithstanding anything in this Agreement to the contrary, (a) no Group Company nor any of their respective Representatives shall be required, under the provisions of this Section 8.11 or otherwise in connection with the Debt Financing, to pay any commitment or other similar fee or enter into any binding agreement (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) or commitment or incur any other actual or potential liability or obligation in connection with the Debt Financing prior to the Closing that is not advanced by Buyer, (b) no Group Company or any of their respective Representatives, managers, officers or employees shall be required to execute or enter into, perform or authorize any agreement with respect to the Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) that is not contingent upon the Closing or that would be effective prior to the Closing Date, (c) no Representativethe termination of the Credit Agreement, manager, officer or employee the repayment in full of all obligations then outstanding thereunder and the release of any Group Company shall be required Encumbrances and termination of all guarantees supporting the obligations thereunder, in each case, in form and substance satisfactory to deliver any certificate or take any other action pursuant Buyer, and (ii) use commercially reasonable efforts to, and cause its officers, employees and advisors (in each case, with appropriate seniority and expertise in the good faith judgement of the Seller) to this Section 8.11 use commercially reasonable efforts to, provide to Buyer such reasonable cooperation as is customary for the extent any such action would Debt Financing and as is reasonably be expected to result requested by Buyer including (A) cooperating with the prospective Debt Financing Sources in personal liability to such Representative, manager, officer or employeeperforming their due diligence during a commercially reasonable number of due diligence sessions and as reasonably requested by Buyer with reasonable advance notice of time and place, (dB) no Group Company or their respective Representatives shall be required providing due diligence materials that are reasonably requested by Buyer to take any action that would reasonably be expectedprospective Debt Financing Sources (provided, in that, for the reasonable judgment avoidance of the Company, to conflict with, or result in any violation or breach of, any applicable Laws, any organizational documents of any Group Company, any contract or obligations of confidentiality (not created in contemplation hereof) binding on any Group Company, (e) no Group Company or any of their respective Representatives shall be required to take any action that would cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement, (f) no Group Company or any of their respective Representatives shall be required to make any representation, warranties or certifications as to whichdoubt, the Company has, in its good faith, determined is Seller shall not true, (g) no Group Companies or their respective Representatives shall be required to provide, and the Buyer will shall be solely responsible for for, (i) the preparation of: (1) of any 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, (2ii) 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 or any “description of notes,” or (3iii) projections, risk factors or other forward-looking statements relating to all or any component of the Debt Financing; ), (C) reasonably cooperating with Buyer and the Debt Financing Sources in the preparation, execution and delivery of definitive transaction documents for the Debt Financing (provided, that the effectiveness thereof shall be conditioned upon, and become operative immediately prior to, the occurrence of the Closing), (D) facilitating the pledge of and granting and perfection of liens on applicable collateral (including the release, identification, grant or perfection of any Encumbrances on the Purchased Assets), if any, to provide security in connection with the Debt Financing at and after the Closing, (E) assisting with the release of related Encumbrances on the Purchased Assets on the Closing Date (including obtaining the Release Documents), (F) obtaining such consents, approvals and authorizations which may be reasonably requested by Buyer in connection with the Debt Financing and collateral arrangements in connection therewith (including obtaining the Release Documents and the Payoff Letters, as applicable) and (hG) no Group Company reasonably cooperating with Buyer to satisfy the conditions precedent to the Debt Financing to the extent within the control of the Seller; provided, however, that (i) nothing herein shall require the Seller or any of its Affiliates to take any action that would be effective prior to the Closing or to the extent it would, in the Seller’s reasonable judgment, reasonably be expected to (A) interfere unreasonably with the business or operations of the Seller, (B) conflict with, or result in a violation or breach of, or default (with or without notice or lapse of time) under (I) the certificate of incorporation and bylaws, or equivalent organizational documents, of the Seller or any of its Affiliates, or (II) any applicable Law or any Contract to which the Seller or any of its Affiliates is a party, or (C) cause any conditions set forth in Article 8 to fail to be satisfied; (ii) the board of directors of the Seller (and the equivalent governing body of any Affiliate of the Seller) shall not be required to adopt resolutions approving the agreements, documents and instruments pursuant to which the Debt Financing is obtained, and, except as expressly set forth in this Section 6.6.1, neither the Seller nor any of its Affiliates shall be required to provide access take any corporate actions prior to the Closing Date to permit the consummation of the Debt Financing; and (iii) the Seller shall not be required to disclose any information to Buyer or disclose information that take any other action pursuant to this Section 6.6.1 if doing so could (x) violate, or result in the Company determines would jeopardize waiver of any attorney–client benefit under, any fiduciary duty or any applicable federal, state, provincial, municipal, local or foreign Law, rule or regulation and any judicial or administrative interpretation thereof including any judicial or administrative order, consent decree or judgment to which the Seller is a party or to which the Seller is subject or (y) result in the waiver of any legal privilege or work product protection of the Seller.
6.6.2 The Seller shall not be required to pay any commitment or other similar privilege of the Company fee or make any of its Subsidiaries. Promptly upon request other payment (other than reasonable and documented out-of-pocket costs, subject to reimbursement by the Company, Xxxxx will reimburse the Company for Buyer) or incur any reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Company, the Company Subsidiaries other liability or provide or agree to provide any of their Representatives indemnity in connection with the cooperation Debt Financing. Neither the Seller nor any of its Affiliates shall be required to execute or enter into or perform any agreement with respect to the CompanyDebt Financing (including any credit or other agreements, pledge or security documents, or other certificates, or documents in connection with the Company Subsidiaries and their Representatives contemplated by this Section 8.11Debt Financing). Except in Whether or not the case of fraud or a breach of this AgreementClosing occurs, Buyer shall indemnifypromptly reimburse the Seller for all reasonable out-of-pocket costs and expenses incurred by any of them in connection with Section 6.6.1, defend, including reasonable and documented legal fees and shall indemnify and hold harmless the Group Companies and their respective Representatives Seller from and against any and all losses, damages, awards, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, expenses (including interest, penalties, reasonable legal, consulting Losses and other professional fees and expenses and all amounts paid in prosecution, investigation, defense or settlement of any of the foregoing) and other amounts liabilities suffered or incurred by any of them in connection with (i) any action taken by them at to the request of Buyer pursuant to this Section 8.11 or Debt Financing Sources in connection with the arrangement and preparation of the Debt Financing or (ii) and any information utilized used in connection therewith, and the foregoing obligations shall survive termination of this Agreement and the occurrence therewith other than information furnished by or on behalf of the Closing. In additionSeller or to the extent resulting from the gross negligence, no action, liability bad faith or obligation willful misconduct of the Company, any of the Company Subsidiaries or any of their respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to any Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) will be effective until the Closing Date. All material, non-public information regarding the Group Companies provided to Buyer Seller or any of its Representatives pursuant Affiliates. The Seller hereby consents to this Section 8.11 shall be kept confidential by them in accordance with the Confidentiality Agreement except for disclosure to potential investors as required use of its logos in connection with the Debt Financing subject Financing; provided, that the logos are used solely (i) in a manner that is not intended or reasonably likely to customary confidentiality protectionsharm or disparage the Seller or the reputation or the goodwill thereof, and (ii) in connection with a description of the Seller, its business and products or the transactions contemplated by this Agreement. Notwithstanding anything to the contrarycontrary herein, the Company shall be deemed to have complied with this Section 8.11 for all purposes of this Agreement (including Article 6 and Article 7) unless the Debt Financing has not been obtained primarily as a result of the Company’s Willful Breach of its obligations under this Section 8.11. Notwithstanding anything herein to the contrary, Xxxxx Buyer acknowledges and agrees that obtaining the Closing shall in no way be contingent upon any Debt Financing is not a condition to the ClosingFinancing.
Appears in 1 contract
Samples: Asset Purchase Agreement (Tabula Rasa HealthCare, Inc.)
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion (a) From the date of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (x) provide Seller and the Company with written notice that such Debt Financing has been obtained and (y) deliver (or cause to be delivered) to Seller and the Company true, correct and complete copies of all arrangements pursuant to which any Financing Parties shall have committed to provide any portion of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further that, in no event shall the receipt of such Debt Financing be a condition to Closing and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. Prior to until the Closing, subject or the earlier termination of this Agreement in accordance with Article IX, (i) Seller agrees to Section 8.11.2, the Company shall use commercially reasonable best efforts to, and shall use reasonable best efforts to cause the Company Subsidiaries Group Companies and its and their respective Affiliates and Representatives and, to the extent of its rights under the Existing LLC Agreement and the Existing Joint HoldCo LLC Agreement to do so, shall cause Orsted and the Group Companies to, in each case provide, at Buyer’s sole cost and expense, provide to Buyer such customary cooperation reasonably requested by Buyer that is reasonably necessary in arranging, obtaining and syndicating the Debt Financing, if any (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the operations of the Group Companies), including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies as may be reasonably requested by Buyer for the completion of the Debt Financing, (b) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies in connection with the Debt Financing to obtainment, arrangement, marketing and syndication of, and the extent reasonable and customary for financings satisfaction on a timely basis of such typeall relevant conditions precedent to, (c) reasonably assisting in the preparation closing of (i) customary bank information memoranda, lender and investor presentations, offering documents, offering or private placement memoranda and other similar marketing documents and due diligence efforts for the Debt Financing and (ii) the Seller shall, and, to the extent of its rights under the Existing LLC Agreement and the Existing Joint HoldCo LLC Agreement to do so, shall cause Orsted and the Group Companies to, deliver to Buyer the Required Information as promptly as practicable once available. Such assistance shall include, but not be limited to: (A) reasonable participation by appropriate senior management, officers, employees, advisors and other representatives of the Group Companies at reasonable times, with reasonably advanced notice and in a reasonable number of lender meetings, due diligence sessions, rating agency presentations, and other similar customary authorization and representation letters, each as required in connection meetings with the Debt Financing, authorizing the distribution of information to prospective lenders and containing a representation that the public side of such documents, if any, do not include any information about any Group Company or any securities of any Group Company that would constitute material non-public information within the meaning of the United States federal and state securities laws if any Group Company were a public reporting companyFinancing Sources, (dB) using reasonable best efforts to cause the Company’s independent registered accounting firm to provide customary assistance, including (i) providing customary comfort letters (including “negative assurance comfort” assisting Buyer and “change period comfort”) in connection with any capital markets transaction comprising a part of the Debt Financing, (ii) providing customary consents to the inclusion of their audit report in respect of any financial statements of the Company and the Company Subsidiaries in any offering documents relating to the Debt Financing Sources in preparing confidential information memoranda, rating agency presentations and (iii) reasonable assistance similar customary syndication documents and cooperation to Buyer with respect to any auditor due diligenceother marketing materials, (eC) subject to and conditioned on the occurrence of the Closing, the taking of customary corporate actions reasonably necessary to permit the consummation of and funding of the Debt Financing, (f) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth in any definitive document relating to the Debt Financing to the extent satisfaction of such condition requires the cooperation of, or is within the control of, the Group Companies, (g) delivering to furnishing Buyer at least three four (34) Business Days prior to the Closing Date with all such documentation and other information as is in respect of the Group Companies that any Debt Financing Source has reasonably requested in writing by Buyer at least ten (10) Business Days prior to the Closing to the extent Date that is required by U.S. regulatory authorities Governmental Authority under applicable “beneficial ownership,” “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and the requirements of 31 C.F.R. §1010.2302001, as amended, (hD) facilitating and assisting Buyer in connection with the preparation and delivery by Buyer of any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents relating to disclosure schedules in respect of the Debt Financing relating to the Group Companies, and their respective businesses to (as may be included in the definitive documents relating to reasonably requested by Buyer or the Debt Financing, Financing Sources and assist with the execution and delivery of the same, in each case, solely to the extent reasonable and are customary for financings of such typethe type contemplated by the Debt Commitment Letter), (iE) cooperating with internal and external counsel of the Debt Financing Sources’ reasonable due diligence requests, (F) assisting Buyer in connection with providing customary back-up certificates and factual information regarding any legal opinion that such counsel may be required to deliver obtaining ratings in connection with the Debt Financing, in each case(G) furnishing to Buyer and the Debt Financing Sources, solely as promptly as reasonably practicable after the date of this Agreement and prior to the extent reasonable and customary for financings of such typeClosing, the Required Information and (jH) obtaining and providing documents furnishing to Buyer (including draft payoff letters) relating all documentation and information in respect of the Seller Parties reasonably requested by the Buyer related to the repayment financial condition and credit ratings of the Indebtedness and the release of related guarantees and Liens in accordance Seller and/or Seller Parent, including, but not limited to, any rating agency presentations with the terms of this Agreement. The Company hereby consents, on behalf of itself and the Group Companies, respect to the use Seller and/or Seller Parent previously prepared by the Seller or Seller Parent, as applicable. For the avoidance of doubt, the logos of Parties hereby acknowledge and agree that (x) information provided by the Group Companies in connection with the Debt Financing; Financing may only be provided to sources or potential sources of financing and rating agencies that have agreed to be bound by customary confidentiality provisions (including “click-thru” confidentiality provisions), (y) the Seller will not be obligated to prepare any pro forma financial statements or other pro forma information and (z) any pro forma financial information and other information provided by the Seller in its discretion that may be reasonably and timely requested by the Buyer concerning the assumptions underlying the post-Closing or pro forma adjustments to be made in such pro forma financial statements, will in all respects be the sole responsibility of Buyer. Further, until the date that is two hundred seventy (270) days following COD of the Revolution Wind Project, or the earlier termination of this Agreement in accordance with Article IX, Seller will reasonably consider providing customary cooperation to Buyer to obtain financing for the Projects.
(b) Notwithstanding the foregoing, the cooperation and actions contemplated in Section 5.15(a) shall not be required to be taken if any such cooperation or action that (i) unreasonably disrupts or interferes with the ongoing operations of the Group Companies or the Seller, (ii) causes any breach of this Agreement or any material contract to which any Group Company or Seller is a party, or gives rise to a right of termination, cancellation or acceleration of any obligation thereunder, (iii) requires any Group Company or Seller to take any action, provide any access or disclose any information that, in each case, would reasonably be expected to conflict with or violate its respective Organizational Documents or any Legal Requirement, or result in a material violation, breach or default thereunder (or an event that, with or without notice, lapse of time, or both could constitute a material breach of or default thereunder) or where the Seller or the Group Companies determine that such logos are used solely access or disclosure could jeopardize the attorney-client privilege or contravene any Legal Requirement or Contractual Obligation, (iv) involves any binding commitment by any Group Company or the Seller, (v) requires the delivery or execution of any agreement, certificate or instrument by or on behalf of any Group Company or the Seller other than the Debt Financing Direct Agreement, (vi) requires any Group Company or the Seller to be a borrower, guarantor, grantor, pledgor or other obligor with respect to the Debt Financing, other, with respect to the Group Companies only than a customary acknowledgement in a manner that is not intended toconnection with the pledge of the Company Interests by the Buyer in connection with such Debt Financing, nor is reasonably likely to, harm or disparage (vii) causes any Group Company to have any liability in connection with the Companyactivities contemplated in this Section 5.15 (other than any liability arising out of such Person’s or any of its their respective Representatives’ and Affiliates’ reputation bad faith, gross negligence or goodwill.
8.11.2. Notwithstanding anything in willful misconduct), (viii) causes (A) any terms of this Agreement or any other Contractual Obligation to which the Seller or any Group Company is party to be waived or amended, (B) any condition to the contraryClosing set forth in Article VI to not be satisfied or (C) any breach of this Agreement, (aix) no requires any Group Company nor Company, the Seller or any of their respective Representatives shall be requiredAffiliates, under the provisions of this Section 8.11 directors, officers or employees to agree to pay any commitment or other fees or reimburse any expenses, or incur any liability or give any indemnities or otherwise commit to take any similar action, (x) requires the delivery of opinions of internal or external counsel of the Seller or Group Companies, or (xi) require any of the directors managers of any Group Company, acting in such capacity to (A) take actions which would result in a significant interference with the prompt and timely discharge of their duties, execute, deliver or enter into or perform any agreement, document or instrument, including any definitive financing agreement, with respect to the Debt Financing, (B) adopt any resolutions approving the agreements, documents and instruments pursuant to which the Debt Financing is obtained or (C) incur any personal liability with any matters relating to the Debt Financing.
(c) Buyer shall indemnify and hold harmless Seller and each Group Company and any of its and their respective Affiliates and Representatives from and against any and all losses suffered or incurred by any of them (other than, in each case, to the extent such Losses are suffered or incurred as a result of (i) historical information furnished in writing by or on behalf of such Group Company for use in connection with the Debt Financing, to pay including the Financial Statements or (ii) the bad faith, gross negligence or willful misconduct of any commitment or other similar fee or enter into any binding agreement (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) or commitment or incur any other actual or potential liability or obligation in connection with the Debt Financing prior to the Closing that is not advanced by Buyersuch Person and/or its Representatives and Affiliates), (b) no and Buyer shall promptly reimburse each Group Company or any of their respective Representatives, managers, officers or employees shall be required to execute or enter into, perform or authorize any agreement with respect to the Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) that is not contingent upon the Closing or that would be effective prior to the Closing Date, (c) no Representative, manager, officer or employee of any Group Company shall be required to deliver any certificate or take any other action pursuant to this Section 8.11 to the extent any such action would reasonably be expected to result in personal liability to such Representative, manager, officer or employee, (d) no Group Company or their respective and its Representatives shall be required to take any action that would reasonably be expected, in the and Affiliates for all reasonable judgment of the Company, to conflict with, or result in any violation or breach and documented out-of, any applicable Laws, any organizational documents of any Group Company, any contract or obligations of confidentiality (not created in contemplation hereof) binding on any Group Company, (e) no Group Company or any of their respective Representatives shall be required to take any action that would cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement, (f) no Group Company or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, the Company has, in its good faith, determined is not true, (g) no Group Companies or their respective Representatives shall be required to provide, and the Buyer will be solely responsible for the preparation of: (1) pro forma financial information; (2) any description of all or any component of the Debt Financing; or (3) projections, risk factors or other forward-looking statements relating to all or any component of the Debt Financing; and (h) no Group Company shall be required to provide access to or disclose information that the Company determines would jeopardize any attorney–client privilege or other similar privilege of the Company or any of its Subsidiaries. Promptly upon request by the Company, Xxxxx will reimburse the Company for any reasonable pocket costs and expenses (including reasonable attorneys’ fees) incurred by the Company, the Company Subsidiaries or any of their Representatives in connection with the cooperation of the Company, the Company Subsidiaries and their Representatives contemplated by this Section 8.11. Except in the case of fraud or a breach of this Agreement, Buyer shall indemnify, defend, and hold harmless the Group Companies and their respective Representatives from and against any and all losses, damages, awards, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecution, investigation, defense or settlement of any of the foregoing) and other amounts suffered or incurred by them in connection with (i) any action taken by them at the request of Buyer pursuant to this Section 8.11 or such Person in connection with the arrangement of the Debt Financing and any assistance or activities contemplated by this Section 5.15.
(iid) Buyer acknowledges and affirms that it is not a condition to Closing or to any information utilized in connection therewith, and the foregoing of its other obligations shall survive termination of under this Agreement and the occurrence of the Closing. In addition, no action, liability that Buyer obtains financing for or obligation of the Company, related to any of the Company Subsidiaries or any of their respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to any Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) will be effective until the Closing Date. All material, non-public information regarding the Group Companies provided to Buyer or any of its Representatives pursuant to this Section 8.11 shall be kept confidential by them in accordance with the Confidentiality Agreement except for disclosure to potential investors as required in connection with the Debt Financing subject to customary confidentiality protectionstransactions contemplated hereby. Notwithstanding anything to the contrary, the Company Seller and the Group Companies shall be deemed to have complied with this Section 8.11 5.15 for all purposes of this Agreement (including Article 6 and Article 7Article VI) unless the Debt Financing has not been obtained primarily as a result of the CompanySeller’s Willful Breach breach of its obligations under this Section 8.11. Notwithstanding anything herein to the contrary, Xxxxx acknowledges and agrees that obtaining any Debt Financing is not a condition to the Closing5.15.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Eversource Energy)
Financing Cooperation. 8.11.1. Buyer may determine(a) From the date of this Agreement until the Closing Date, in Seller shall, and shall cause the Company and its sole discretionand their respective and appropriate directors, officers, employees, and advisers, to obtain debt provide to the Purchaser such assistance and cooperation as is reasonably requested by the Purchaser and as is customary in relation to the financing arrangements to fund any portion of be entered into by the Purchase Price Purchaser in connection with the transactions contemplated under this Agreement (the “Debt Financing”); provided that the Buyer shall. Such assistance and cooperation may include (A) making appropriate directors, promptly after such Debt Financing is obtained (x) provide Seller officers and employees of the Company available for participation in a reasonable number of meetings, conference calls, due diligence sessions, and rating agency presentations with written notice that such Debt Financing has been obtained and (y) deliver (or cause to be delivered) to Seller and the Company true, correct and complete copies of all arrangements pursuant to which any Financing Parties shall have committed to provide any portion providers of the Debt Financing; provided that any fee letters may be redacted (B) reasonably cooperating with the Purchaser in its preparation of marketing materials in connection with such Debt Financing; (C) assisting in the preparation of a customary manner; provided further thatbank information memorandum, in no event shall the receipt of such Debt Financing be a condition to Closing offering memorandum, lender presentation, investor presentation, marketing materials and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement similar marketing and to perform its obligations hereunder. Prior to the Closingsyndication documents, subject to Section 8.11.2, the Company shall use reasonable best efforts tocustomary materials for rating agency presentations, and shall use customary authorization letters (and execute such authorization letters); (D) preparing and furnishing Purchaser with reasonable best efforts to cause the Company Subsidiaries and its and their respective Representatives to, in each case at Buyer’s sole expense, provide to Buyer such cooperation reasonably requested by Buyer that is reasonably necessary in arranging, obtaining and syndicating the Debt Financing, if any (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the operations of the Group Companies), including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information customary historical financial and other pertinent business information regarding the Group Companies Company as may be reasonably requested in writing by Buyer Purchaser, for the completion of the Debt Financing, (b) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies use in connection with the Debt Financing and providing reasonable assistance to the extent reasonable and customary for financings of such type, (c) reasonably assisting in the Purchaser’s preparation of pro forma financial information and projections; provided, that, for the avoidance of doubt, the information described in this clause (iD) customary bank information memorandashall not include, lender and investor presentationsPurchaser shall be solely responsible for, offering documents, offering or private placement memoranda the actual preparation of pro forma financial information; (E) furnishing Purchaser with all documentation and other similar marketing documents and due diligence efforts for the Debt Financing and (ii) customary authorization and representation letters, each as required in connection with the Debt Financing, authorizing the distribution of information to prospective lenders and containing a representation that the public side of such documents, if any, do not include any information about any Group Company or any securities of any Group Company that would constitute material non-public information within the meaning of the United States federal and state securities laws if any Group Company were a public reporting company, (d) using reasonable best efforts to cause the Company’s independent registered accounting firm to provide customary assistance, including (i) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) in connection with any capital markets transaction comprising a part of the Debt Financing, (ii) providing customary consents to the inclusion of their audit report in respect of any financial statements of regarding the Company and the Company Subsidiaries in any offering documents relating required by Governmental Entities with respect to the Debt Financing and (iii) reasonable assistance and cooperation to Buyer with respect to any auditor due diligence, (e) subject to and conditioned on the occurrence of the Closing, the taking of customary corporate actions reasonably necessary to permit the consummation of and funding of the Debt Financing, (f) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth in any definitive document relating to the Debt Financing to the extent satisfaction of such condition requires the cooperation of, or is within the control of, the Group Companies, (g) delivering to Buyer at least three (3) Business Days prior to the Closing all such documentation and information as is reasonably requested in writing by Buyer at least ten (10) Business Days prior to the Closing to the extent required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act and the requirements of 31 C.F.R. §1010.230, Beneficial Ownership Regulation; (hF) facilitating the pledging of collateral for the Debt Financing (including delivering original stock certificates and assisting in the preparation original stock powers), including executing and delivery of delivering any customary pledge and security documents, credit agreements, indenturesancillary loan documents, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection original stock certificates or other definitive and customary closing certificates and documents relating to the Debt Financing relating to the Group Companies, and their respective businesses to be included in the definitive documents relating to the Debt Financing, and assist with the execution and delivery of the same, (in each case, solely subject to and only effective upon the extent reasonable occurrence of the Closing Date), including assisting in preparing any schedules thereto as may be reasonably requested by Purchaser; and customary for financings of such type, (iG) reasonably cooperating with internal and external Purchaser’s legal counsel of Buyer in connection with providing customary back-up certificates legal opinions required of Purchaser in connection with the Debt Financing (it being understood and factual information regarding any agreed that the Company (and its legal opinion that such counsel may counsel) shall not be required to deliver any legal opinions in connection with the Debt Financing, in each case, solely ). Seller consents to the extent customary and reasonable and customary for financings of such type, and (j) obtaining and providing documents to Buyer (including draft payoff letters) relating to the repayment of the Indebtedness and the release of related guarantees and Liens in accordance with the terms of this Agreement. The Company hereby consents, on behalf of itself and the Group Companies, to the use of the logos in respect of the Group Companies Company solely in connection with the any such Debt Financing; provided that such logos are used solely in a manner that is not intended tointended, nor is or reasonably likely tolikely, to harm or disparage Seller or the Company’s or any of its Affiliates’ reputation or goodwill.
8.11.2goodwill of Seller. Notwithstanding anything in this Agreement to Purchaser acknowledges and agrees that neither the contrarySeller, (a) no Group the Company nor any of their respective Representatives Affiliates or representatives shall be required, under the provisions of this Section 8.11 or otherwise in connection with the Debt Financing, to pay any commitment or other similar fee or enter into any binding agreement (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) or commitment or incur any other actual liability to any Person prior to the Closing under or potential liability or obligation in connection with the Debt Financing that is not simultaneously reimbursed by Purchaser at or prior to the Closing that is not advanced by Buyer, Closing.
(b) no Group Notwithstanding anything to the contrary in this Agreement, (1) nothing in Section 5.23 shall require cooperation to the extent it would (i) subject the Seller or any of its Affiliates or Representatives to any actual or potential personal liability (provided that this clause shall not limit cooperation with respect to any customary authorization letters described in clause (a) above), (ii) unreasonably interfere with the business or operations of the Seller or the Company, (iii) reasonably be expected to conflict with, or violate, the Seller’s certificate of formation, operating agreement or any organizational documents or any applicable Law, or result in the contravention of, or violation or breach of, or default under, any material Contract to which the Seller or any of its Affiliates is a party, in each case, as in effect on the date hereof, (iv) cause any representation, warranty, covenant or other obligation in this Agreement or any Transaction Document to be breached or any closing condition to fail to be satisfied, or (v) require the Seller to agree to (A) pay or pay any fees or reimburse any expenses or make any other payment in connection with any financing which are not reimbursed or indemnified hereunder, or (B) give any indemnities or incur any liabilities in connection with any financing or any information utilized in connection therewith. Neither the Seller, the Company or any of their respective Representatives, managers, officers or employees Affiliates and Representatives shall be required to execute or enter into, perform or authorize have any agreement with respect liability to the Debt Financing (other than the execution of the authorization letters referred to Purchaser in clause (c)(ii) of Section 8.11.1) that is not contingent upon the Closing or that would be effective prior to the Closing Date, (c) no Representative, manager, officer or employee respect of any Group Company shall be required to deliver any certificate financial information or take any data or other action information provided pursuant to this Section 8.11 to the extent any such action would reasonably be expected to result in personal liability to such Representative, manager, officer or employee, (d) no Group Company or their respective Representatives shall be required to take any action that would reasonably be expected, in the reasonable judgment of the Company, to conflict with, or result in any violation or breach of, any applicable Laws, any organizational documents of any Group Company, any contract or obligations of confidentiality (not created in contemplation hereof) binding on any Group Company, (e) no Group Company or any of their respective Representatives shall be required to take any action that would cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement, (f) no Group Company or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, the Company has, in its good faith, determined is not true, (g) no Group Companies or their respective Representatives shall be required to provide, and the Buyer will be solely responsible for the preparation of: (1) pro forma financial information; (2) any description of all or any component of the Debt Financing; or (3) projections, risk factors or other forward-looking statements relating to all or any component of the Debt Financing; and (h) no Group Company shall be required to provide access to or disclose information that the Company determines would jeopardize any attorney–client privilege or other similar privilege of the Company or any of its Subsidiaries. Promptly upon request by the Company, Xxxxx will reimburse the Company for any reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Company, the Company Subsidiaries or any of their Representatives in connection with the cooperation of the Company, the Company Subsidiaries and their Representatives contemplated by this Section 8.11. Except in the case of fraud or a breach of this Agreement, Buyer shall indemnify, defend, and hold harmless the Group Companies and their respective Representatives from and against any and all losses, damages, awards, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecution, investigation, defense or settlement of any of the foregoing) and other amounts suffered or incurred by them in connection with (i) any action taken by them at the request of Buyer pursuant to this Section 8.11 or in connection with the arrangement of the Debt Financing or (ii) any information utilized in connection therewith, and the foregoing obligations shall survive termination of this Agreement and the occurrence of the Closing. In addition, no action, liability or obligation of the Company, any of the Company Subsidiaries or any of their respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to any Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) will be effective until the Closing Date. All material, non-public information regarding the Group Companies provided to Buyer or any of its Representatives pursuant to this Section 8.11 shall be kept confidential by them in accordance with the Confidentiality Agreement except for disclosure to potential investors as required in connection with the Debt Financing subject to customary confidentiality protections. Notwithstanding anything to the contrary, the Company shall be deemed to have complied with this Section 8.11 for all purposes of this Agreement (including Article 6 and Article 7) unless the Debt Financing has not been obtained primarily as a result of the Company’s Willful Breach of its obligations under this Section 8.11. Notwithstanding anything herein to the contrary, Xxxxx acknowledges and agrees that obtaining any Debt Financing is not a condition to the Closing5.23.
Appears in 1 contract
Financing Cooperation. 8.11.1. (a) Each Seller shall, and shall cause the Acquired Companies to use commercially reasonable efforts to provide to Buyer may determine, reasonable and customary cooperation requested by Buyer in its sole discretion, to obtain connection with obtaining debt financing to fund any portion in connection with the payment of the Cash Purchase Price and the consummation of the other transactions pursuant to this Agreement (the “Debt Financing”). The foregoing cooperation by each Seller and the Acquired Companies shall include, at the reasonable request of Buyer, using commercially reasonable and customarily required efforts in respect of (i) assisting Buyer and the Debt Financing Sources in the preparation of any prospectus, offering memorandum, ratings agency presentation or marketing material and similar reasonably and customarily required documents in connection with debt financings of this type that Buyer may provide or be required to provide to any Debt Financing Source (the “Offering Documentation”), including, prior to the beginning of the applicable marketing period for the Debt Financing, executing and delivering customary representation letters in connection with bank information memoranda, reviewing and commenting on any draft of a business description and “Management’s Discussion and Analysis” of the Acquired Companies’ financial statements to be included in the Offering Documentation, furnishing customary financial information for the preparation of an unaudited pro forma consolidated balance sheet and related unaudited pro forma consolidated statements of income and cash flows by (or on behalf of) Buyer to give effect to the transactions contemplated hereby, and causing each Acquired Company’s independent auditors, if any, to provide, consistent with customary practice, reasonable assistance in the preparation of such unaudited pro forma financial statements by Buyer and to deliver customary comfort letters and any required consent for inclusion of financial statements and other financial information in any Offering Documentation; provided that (A) each Seller’s and the Buyer shall, promptly after Acquired Companies’ obligation to provide information for such Debt Financing is obtained materials shall be limited to information about the Acquired Companies and (xB) provide neither Seller and none of the Company with written notice that such Debt Financing has been obtained and (y) deliver (or cause to be delivered) to Seller and the Company true, correct and complete copies of all arrangements pursuant to which any Financing Parties Acquired Companies shall have committed any obligation to provide any portion financial or other information that is not reasonably available to Sellers or the Acquired Companies; (ii) cooperating with marketing efforts of the Debt Financing; Financing Sources, (iii) cooperating with Buyer’s legal counsel in connection with any legal opinions provided that any fee letters may be redacted in a customary manner; provided further that, in no event shall either Seller or the receipt Acquired Companies be required to deliver or obtain opinions of internal or external counsel, (iv) providing prompt written notice (in reasonable detail) upon knowledge of any facts that would or would likely require the restatement of any financial information or financial statements provided by or on behalf of the Acquired Companies for such Debt Financing be a condition financial statements to Closing and comply with GAAP or HKFRS, as applicable, (v) cooperating with Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform in its obligations hereunder. Prior procuring of definitive financing documents, including providing information pertinent to the Closing, subject to Section 8.11.2, Acquired Companies and in the Company shall use reasonable best efforts to, and shall use reasonable best efforts to cause possession of either Seller or the Company Subsidiaries and its and their respective Representatives to, in each case at Buyer’s sole expense, provide to Buyer such cooperation reasonably requested by Buyer Acquired Companies that is reasonably necessary for such definitive financing documents or the performance by Buyer thereunder and facilitating the pledging of collateral, including cooperating in arranging, obtaining connection with the payoff of existing indebtedness and syndicating the Debt Financing, if any release of related Encumbrances and termination of other security interests (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the operations no obligation of the Group CompaniesAcquired Companies under any such document or agreement and no pledge shall be effective until the Closing), including as promptly as reasonably practical(vi) assisting Buyer in obtaining waivers, (a) furnishing Buyer with the Required Financial Information consents, estoppels and approvals from other parties to material leases and other pertinent information regarding material Contracts relating to the Group Acquired Companies as may be reasonably requested by Buyer for the completion of with respect to the Debt Financing, (bvii) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentationstaking all corporate, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies in connection with the Debt Financing to the extent reasonable and customary for financings of such typelimited liability company or other actions, (c) reasonably assisting in the preparation of (i) customary bank information memoranda, lender and investor presentations, offering documents, offering or private placement memoranda and other similar marketing documents and due diligence efforts for the Debt Financing and (ii) customary authorization and representation letters, each as required in connection with the Debt Financing, authorizing the distribution of information to prospective lenders and containing a representation that the public side of such documents, if any, do not include any information about any Group Company or any securities of any Group Company that would constitute material non-public information within the meaning of the United States federal and state securities laws if any Group Company were a public reporting company, (d) using reasonable best efforts to cause the Company’s independent registered accounting firm to provide customary assistance, including (i) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) in connection with any capital markets transaction comprising a part of the Debt Financing, (ii) providing customary consents to the inclusion of their audit report in respect of any financial statements of the Company and the Company Subsidiaries in any offering documents relating to the Debt Financing and (iii) reasonable assistance and cooperation to Buyer with respect to any auditor due diligence, (e) subject to and conditioned on the occurrence of the Closing, the taking of that are necessary or customary corporate actions reasonably necessary to permit the consummation of and funding of the Debt Financing, and (fviii) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth in any definitive document relating to the Debt Financing to the extent satisfaction of such condition requires the cooperation of, or is within the control of, the Group Companies, (g) delivering to Buyer providing at least three (3) five Business Days prior to the Closing all such documentation and other information as is reasonably requested in writing by Buyer at least ten (10) Business Days prior to the Closing to the extent required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, regulations including the USA PATRIOT Act Act. Subject to Buyer’s indemnification obligations under Article VI, each Seller (on its behalf and the requirements of 31 C.F.R. §1010.230, (h) facilitating and assisting in the preparation and delivery of any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents relating to the Debt Financing relating to the Group Companies, and their respective businesses to be included in the definitive documents relating to the Debt Financing, and assist with the execution and delivery of the same, in each case, solely to the extent reasonable and customary for financings of such type, (i) cooperating with internal and external counsel of Buyer 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 Debt Financing, in each case, solely to the extent reasonable and customary for financings of such type, and (j) obtaining and providing documents to Buyer (including draft payoff letters) relating to the repayment of the Indebtedness and the release of related guarantees and Liens in accordance with the terms of this Agreement. The Company hereby consents, on behalf of itself and each of the Group Acquired Companies, ) hereby consents to the use of the all logos of such Seller and any of the Group Acquired Companies in connection with the initial syndication or marketing of the Debt Financing; provided provided, that such logos are used solely in a manner that is customary for such purposes and not intended to, nor is to or reasonably likely to, to harm or disparage either Seller or the Company’s Acquired Companies or the reputation or goodwill of either Seller or the Acquired Companies.
(b) Notwithstanding anything to the contrary set forth in Section 4.6(a), in no event shall the obligations in Section 4.6(a) require either Seller or, before Closing is consummated, any of its Affiliates’ reputation the Acquired Companies, or goodwill.
8.11.2. Notwithstanding anything in this Agreement to the contrary, (a) no Group Company nor any of their respective Representatives shall be requiredmembers, under the provisions managers, directors, officers, employees, agents or other representatives to (i) waive or amend any terms of this Section 8.11 Agreement or otherwise to pay any commitment or other fee or reimburse any expenses prior to the Closing, or incur any Liability or obligation or give any indemnities to any third party in connection with the Debt Financing (or any replacements thereof), (ii) authorize, approve or execute any loan agreements, security agreements or related documents or instruments in connection with the Debt Financing, to pay (iii) take any commitment action that would unreasonably interfere (as reasonably determined by the Seller and the Acquired Companies) with the ongoing business or other similar fee operations of the Acquired Companies, (iv) execute or enter into any contract or make any binding agreement (other than commitment that is not expressly conditioned on the execution consummation of the authorization letters referred Closing and that does not terminate without Liability to in clause Sellers or the Acquired Companies upon termination of this Agreement; (c)(iiv) of Section 8.11.1) adopt resolutions approving contracts or commitment or incur take any other actual or potential liability or obligation actions in connection with the Debt Financing prior Financing; (vi) provide access to the Closing or disclosing information that is not advanced subject to any attorney-client privilege of Sellers or the Acquired Companies; (vii) take any action that would reasonably be expected to conflict in any respect with, or result in any violation of or default (or an event that, with or without notice or lapse of time or both, would become a default) under, or give rise to a right of termination, cancellation or acceleration of any obligation or to loss of a benefit under, or to increased, additional, accelerated or guaranteed rights or entitlements of any Person under, any Law, any governing documents of any of the Acquired Companies, or any Contract to which any of the Acquired Companies is a party or by Buyer, (b) no Group Company or which any of their respective Representativesproperties or assets is bound, managers(viii) cause or result in any Closing condition to fail to be satisfied or any representation, officers warranty or employees shall covenant hereunder to be required to execute or enter intobreached, perform or authorize any agreement with respect (ix) consent to the Debt Financing (pre-filing of any financing statements or any other than the execution grant of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) that is not contingent upon the Closing or that would be effective Encumbrances prior to the Closing Date, (cx) no Representativehave any Liability or obligation under any agreement or document relating to Debt Financing, manageror (xi) require the delivery of, officer or employee of any Group Company shall be required to deliver any certificate or take any other action pursuant to this Section 8.11 to the extent any such action would reasonably be expected to result in personal liability to such Representative, manager, officer or employee, (d) no Group Company or their respective Representatives shall be required to take any action that would reasonably be expected, assistance in the reasonable judgment of the Company, to conflict with, or result in any violation or breach preparation of, any applicable Laws, any organizational documents of any Group Company, any contract or obligations of confidentiality financial statements other than the Financial Statements.
(not created in contemplation hereofc) binding on any Group Company, (e) no Group Company or any of their respective Representatives Buyer shall be required to take any action that would cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement, (f) no Group Company or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, the Company has, in its good faith, determined is not true, (g) no Group Companies or their respective Representatives shall be required to provide, and the Buyer will be solely responsible for the preparation of: (1) pro forma financial information; (2) any description of all or any component of the Debt Financing; or (3) projections, risk factors or other forward-looking statements relating to all or any component of the Debt Financing; and (h) no Group Company shall be required to provide access to or disclose information that the Company determines would jeopardize any attorney–client privilege or other similar privilege of the Company or any of its Subsidiaries. Promptly promptly upon request by the Company, Xxxxx will reimburse the Company Seller for any reasonable and documented out-of-pocket fees, expenses and costs (including, without limitation, reasonable and expenses (including reasonable documented out-of-pocket auditors’, accountants’ and attorneys’ fees) incurred by the Company, the Company Subsidiaries or any of their Representatives in connection with Seller and the cooperation of the Company, the Company Subsidiaries Acquired Companies’ obligations under Section 4.6(a) and their Representatives contemplated by this Section 8.11. Except in the case of fraud or a breach of this Agreement, Buyer shall indemnify, defend, will indemnify and hold harmless the Group Companies Acquired Companies, Sellers and each of their respective Representatives representatives from and against any and all losses, damages, awardsclaims, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, costs or expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecution, investigation, defense or settlement of any of the foregoing) and other amounts suffered or incurred by any of them in connection with (i) any action taken by them at the request of Buyer pursuant to this Section 8.11 or in connection with the arrangement of the Debt Financing or (ii) and any information utilized used in connection therewith, and except, in any event, to the foregoing obligations shall survive termination extent resulting from the gross negligence or willful misconduct of this Agreement and the occurrence of the Closing. In addition, no action, liability or obligation of the Company, any of the Company Subsidiaries Acquired Companies, Seller, or any of their respective Representatives pursuant representatives.
(d) Buyer shall use its commercially reasonable efforts to any certificatetake, agreementor cause to be taken, arrangementall actions and do, document or instrument relating cause to any be done, all things necessary, proper or advisable to arrange and obtain the Debt Financing (on the terms and conditions described in the Debt Commitment Letters or other than financing for the execution of the authorization letters referred transactions contemplated by this Agreement on or prior to in clause (c)(ii) of Section 8.11.1) will be effective until the Closing Date. All material, non-public information regarding the Group Companies provided to Buyer or any of its Representatives pursuant to this Section 8.11 shall be kept confidential by them in accordance with the Confidentiality Agreement except for disclosure to potential investors as required in connection with the Debt Financing subject to customary confidentiality protections. Notwithstanding anything to the contrary, the Company shall be deemed to have complied with this Section 8.11 for all purposes of this Agreement (including Article 6 and Article 7) unless the Debt Financing has not been obtained primarily as a result of the Company’s Willful Breach of its obligations under this Section 8.11. Notwithstanding anything herein to the contrary, Xxxxx acknowledges and agrees that obtaining any Debt Financing is not a condition to the Closing.
Appears in 1 contract
Financing Cooperation. 8.11.1. Buyer may determineIf requested by a Purchaser, the Company will provide the following cooperation in connection with such Purchaser obtaining any Permitted Loan: (i) subject to applicable law, using commercially reasonable efforts to (A) deposit certificates representing pledged Notes in book entry form on the books of The Depository Trust Company at closing and, when eligible to do so, remove any restrictive legends or (B) without limiting the generality of clause (A), if such Note is eligible for resale under Rule 144A, depositing such pledged Note in book entry form on the books of The Depository Trust Company or other depository with customary restrictive legends, (ii) if so requested by such lender or counterparty, as applicable, using commercially reasonable efforts to re-register the pledged Note in the name of the relevant lender, counterparty, custodian or similar party to a Permitted Loan, with respect to Permitted Loans solely as securities intermediary and only to the extent a Purchaser or its sole discretionAffiliates continues to Beneficially Own such pledged Note, (iii) entering into an issuer agreement (an “Issuer Agreement”) with each lender in the form attached hereto as Exhibit D, with such changes thereto as are reasonably requested by such lender, customary for similar financings and not inconsistent with the Company’s obligations under the Indenture and applicable law and reasonably acceptable to obtain debt financing the Company, (iv) solely to fund the extent any portion of the Purchase Price (includes proceeds of a Permitted Loan, entering into customary triparty agreements with each lender and any applicable Purchaser relating to the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (x) provide Seller and the Company with written notice that such Debt Financing has been obtained and (y) deliver (or cause to be delivered) to Seller and the Company true, correct and complete copies of all arrangements pursuant to which any Financing Parties shall have committed to provide any portion delivery of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further that, in no event shall the receipt of such Debt Financing be a condition to Closing and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. Prior Notes to the Closing, subject relevant lender for crediting to Section 8.11.2, the Company shall use reasonable best efforts to, and shall use reasonable best efforts to cause the Company Subsidiaries and its and their respective Representatives to, in each case at Buyer’s sole expense, provide to Buyer such cooperation reasonably requested by Buyer that is reasonably necessary in arranging, obtaining and syndicating the Debt Financing, if any (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the operations relevant collateral accounts upon funding of the Group Companies)loan and payment of the purchase price, including a right for such lender as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies as may be reasonably requested by Buyer for the completion a third party beneficiary of the Debt Financing, (b) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies in connection with the Debt Financing to the extent reasonable and customary for financings of such type, (c) reasonably assisting in the preparation of (i) customary bank information memoranda, lender and investor presentations, offering documents, offering or private placement memoranda and other similar marketing documents and due diligence efforts for the Debt Financing and (ii) customary authorization and representation letters, each as required in connection with the Debt Financing, authorizing the distribution of information to prospective lenders and containing a representation that the public side of such documents, if any, do not include any information about any Group Company or any securities of any Group Company that would constitute material non-public information within the meaning of the United States federal and state securities laws if any Group Company were a public reporting company, (d) using reasonable best efforts to cause the Company’s independent registered accounting firm obligation under Article II to provide customary assistance, including (i) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) in connection with any capital markets transaction comprising a part issue the Notes upon payment of the Debt Financing, (ii) providing customary consents to the inclusion of their audit report in respect of any financial statements of the Company and the Company Subsidiaries in any offering documents relating to the Debt Financing and (iii) reasonable assistance and cooperation to Buyer with respect to any auditor due diligence, (e) subject to and conditioned on the occurrence of the Closing, the taking of customary corporate actions reasonably necessary to permit the consummation of and funding of the Debt Financing, (f) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth in any definitive document relating to the Debt Financing to the extent satisfaction of such condition requires the cooperation of, or is within the control of, the Group Companies, (g) delivering to Buyer at least three (3) Business Days prior to the Closing all such documentation and information as is reasonably requested in writing by Buyer at least ten (10) Business Days prior to the Closing to the extent required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act and the requirements of 31 C.F.R. §1010.230, (h) facilitating and assisting in the preparation and delivery of any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents relating to the Debt Financing relating to the Group Companies, and their respective businesses to be included in the definitive documents relating to the Debt Financing, and assist with the execution and delivery of the same, in each case, solely to the extent reasonable and customary for financings of such type, (i) cooperating with internal and external counsel of Buyer 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 Debt Financing, in each case, solely to the extent reasonable and customary for financings of such type, and (j) obtaining and providing documents to Buyer (including draft payoff letters) relating to the repayment of the Indebtedness and the release of related guarantees and Liens therefor in accordance with the terms of this Agreement. The Company hereby consents, on behalf Agreement and (v) such other cooperation and assistance as any Purchaser may reasonably request that will not unreasonably disrupt the operation of itself and the Group Companies, to the use of the logos of the Group Companies in connection with the Debt Financing; provided that such logos are used solely in a manner that is not intended to, nor is reasonably likely to, harm or disparage the Company’s business, impose any material burdens on the Company or prejudice any of its Affiliates’ reputation or goodwill.
8.11.2rights hereunder. Notwithstanding anything Anything in this Agreement the preceding sentence to the contrarycontrary notwithstanding, the Company’s obligation to deliver an Issuer Agreement is conditioned on (a1) no Group such Purchaser delivering to the Company nor any of their respective Representatives shall be required, under the provisions of this Section 8.11 or otherwise in connection with the Debt Financing, to pay any commitment or other similar fee or enter into any binding agreement (other than the execution a copy of the authorization letters referred Permitted Loan to in clause which the Issuer Agreement relates and (c)(ii2) of Section 8.11.1) or commitment or incur any other actual or potential liability or obligation in connection with the Debt Financing prior such Purchaser certifying to the Closing Company in writing that is not advanced by Buyer, (bA) no Group Company or any of their respective Representatives, managers, officers or employees shall be required to execute or enter into, perform or authorize any the loan agreement with respect to which the Debt Financing (other than Issuer Agreement is being delivered constitutes a Permitted Loan being entered into in accordance with this Agreement, such Purchaser has pledged the Notes and/or the underlying shares of Common Stock as collateral to the lenders under such Permitted Loan and that the execution of such Permitted Loan and the authorization letters referred to in clause (c)(ii) of Section 8.11.1) that is terms thereof do not contingent upon violate the Closing or that would be effective prior to the Closing Date, (c) no Representative, manager, officer or employee of any Group Company shall be required to deliver any certificate or take any other action pursuant to this Section 8.11 to the extent any such action would reasonably be expected to result in personal liability to such Representative, manager, officer or employee, (d) no Group Company or their respective Representatives shall be required to take any action that would reasonably be expected, in the reasonable judgment of the Company, to conflict with, or result in any violation or breach of, any applicable Laws, any organizational documents of any Group Company, any contract or obligations of confidentiality (not created in contemplation hereof) binding on any Group Company, (e) no Group Company or any of their respective Representatives shall be required to take any action that would cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach terms of this Agreement, (fB) no Group to the extent applicable, whether the registration rights under Article V are being assigned to the lenders under that Permitted Loan, (C) an Event of Default (as defined in the Issuer Agreement) constitutes the circumstances under which the lenders under the Permitted Loan may foreclose on the Notes and/or the underlying shares of Company Common Stock and a Market Value Cure (as defined in the applicable margin loan agreement) constitutes circumstances under which such Purchaser may sell the Notes and/or the underlying shares of Company Common Stock in order to satisfy a margin call or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, the Company hasrepay a Permitted Loan, in its good faith, determined is each case to the extent necessary to satisfy a bona fide margin call on such Permitted Loan and that such provisions do not true, (g) no Group Companies or their respective Representatives shall be required to provide, and violate the Buyer will be solely responsible for the preparation of: (1) pro forma financial information; (2) any description terms of all or any component of the Debt Financing; or (3) projections, risk factors or other forward-looking statements relating to all or any component of the Debt Financing; this Agreement and (hD) no Group Company shall be required to provide access to or disclose information such Purchaser acknowledges and agrees that the Company determines would jeopardize will be relying on such certificate when entering into the Issuer Agreement and any attorney–client privilege or other similar privilege of the Company or any of its Subsidiaries. Promptly upon request by the Company, Xxxxx inaccuracy in such certificate will reimburse the Company for any reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Company, the Company Subsidiaries or any of their Representatives in connection with the cooperation of the Company, the Company Subsidiaries and their Representatives contemplated by this Section 8.11. Except in the case of fraud or be deemed a breach of this Agreement, Buyer shall indemnify, defend, and hold harmless the Group Companies and their respective Representatives from and against any and all losses, damages, awards, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecution, investigation, defense or settlement of any of the foregoing) and other amounts suffered or incurred by them in connection with (i) any action taken by them at the request of Buyer pursuant to this Section 8.11 or in connection with the arrangement of the Debt Financing or (ii) any information utilized in connection therewith, and the foregoing obligations shall survive termination of this Agreement and the occurrence of the Closing. In addition, no action, liability or obligation of the Company, any of the Company Subsidiaries or any of their respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to any Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) will be effective until the Closing Date. All material, non-public information regarding the Group Companies provided to Buyer or any of its Representatives pursuant to this Section 8.11 shall be kept confidential by them in accordance with the Confidentiality Agreement except for disclosure to potential investors as required in connection with the Debt Financing subject to customary confidentiality protections. Notwithstanding anything to the contrary, the Company shall be deemed to have complied with this Section 8.11 for all purposes of this Agreement (including Article 6 and Article 7) unless the Debt Financing has not been obtained primarily as a result of the Company’s Willful Breach of its obligations under this Section 8.11. Notwithstanding anything herein to the contrary, Xxxxx Each Purchaser acknowledges and agrees that obtaining 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 Debt Financing is dispute between the Company and such Purchaser under this Agreement such Purchaser shall not a condition be entitled to use the Closingstatements and agreements of the Company in an Issuer Agreement against the Company.
Appears in 1 contract
Financing Cooperation. 8.11.1. Buyer may determine(a) Seller shall use commercially reasonable efforts to provide, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (x) provide Seller and the Company with written notice that such Debt Financing has been obtained and (y) deliver (or cause to be delivered) to Seller and the Company true, correct and complete copies of all arrangements pursuant to which any Financing Parties shall have committed to provide any portion of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further that, in no event shall the receipt of such Debt Financing be a condition to Closing and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform cause its obligations hereunder. Prior to the Closing, subject to Section 8.11.2, the Company shall use reasonable best efforts to, and shall use reasonable best efforts to cause the Company Subsidiaries and its Affiliates and their respective Representatives to, in each case at Buyer’s sole expense, representatives to (i) provide to Buyer such cooperation reasonably requested by Buyer that is reasonably necessary in arranging, obtaining and syndicating the Debt Financing, if any (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the operations of the Group Companies), including as promptly as reasonably practical, practicable (a1) furnishing Buyer with the Required Financial Information and other pertinent such information regarding the Group Companies as may be reasonably requested by Buyer Purchaser to facilitate the pledging by Purchaser of, and granting, recording and perfection of security interests in, collateral constituting Purchased Assets, and to facilitate Purchaser’s ability to obtain, at Purchaser’s cost, surveys and title insurance for the benefit of a Financing Source, and (2) other information (financial or otherwise) relating to the Business and/or the Purchased Assets as may be reasonably requested by Purchaser and/or Financing Sources, which information may include information to be used by Purchaser in the preparation of an information package regarding the business, operations, financial projections and prospects of the Business and/or the Purchased Assets as customary or reasonably necessary for the completion of such Financing and/or to prepare customary offering or information documents to be used by Purchaser for the completion of the Debt Financing; (ii) cooperate with the marketing efforts of Purchaser and the Financing Sources, (b) including participating in telephonic a reasonable number of meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) , at times and sessions with rating agencies in connection with the Debt Financing at locations reasonably acceptable to the extent reasonable and customary for financings of such type, (c) reasonably assisting in the preparation of (i) customary bank information memoranda, lender and investor presentations, offering documents, offering or private placement memoranda and other similar marketing documents and due diligence efforts for the Debt Financing and (ii) customary authorization and representation letters, each as required in connection with the Debt Financing, authorizing the distribution of information to prospective lenders and containing a representation that the public side of such documents, if any, do not include any information about any Group Company or any securities of any Group Company that would constitute material non-public information within the meaning of the United States federal and state securities laws if any Group Company were a public reporting company, (d) using reasonable best efforts to cause the Company’s independent registered accounting firm to provide customary assistance, including (i) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) in connection with any capital markets transaction comprising a part of the Debt Financing, (ii) providing customary consents to the inclusion of their audit report in respect of any financial statements of the Company and the Company Subsidiaries in any offering documents relating to the Debt Financing and Seller; (iii) make available upon reasonable assistance notice, personnel with appropriate seniority and cooperation expertise relating to Buyer with respect to any auditor due diligence, (e) subject to and conditioned on the occurrence of the ClosingSeller, the taking of customary corporate actions reasonably necessary to permit Business and/or the consummation of and funding of the Debt Financing, (f) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth in any definitive document relating to the Debt Financing to the extent satisfaction of such condition requires the cooperation of, or is within the control of, the Group Companies, (g) delivering to Buyer at least three (3) Business Days prior to the Closing all such documentation and information as is reasonably requested in writing by Buyer at least ten (10) Business Days prior to the Closing to the extent required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act and the requirements of 31 C.F.R. §1010.230, (h) facilitating and assisting in the preparation and delivery of any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents relating to the Debt Financing relating to the Group Companies, and their respective businesses to be included in the definitive documents relating to the Debt Financing, and assist with the execution and delivery of the samePurchased Assets, in each case, solely as may be reasonably requested by Purchaser, or as may be reasonably requested by the Financing Sources; (iv) subject to satisfactory confidentiality and limitation of use provisions, provide authorization letters acceptable to Seller to the extent reasonable Financing Sources authorizing the distribution of specified information to prospective lenders or investors; (v) subject to any contractual agreement in effect, obtain any applicable customary payoff letters and customary for financings instruments of such typedischarge to be delivered at the Closing(s); and (vi) subject to any contractual agreement in effect, execute and deliver any pledge and security documents (iincluding mortgages), other definitive financing documents, or other certificates or documents as may be reasonably requested by Purchaser (including a certificate of the chief financial officer of Seller or one or more of its Subsidiaries with respect to solvency matters) cooperating with internal and external counsel related to the Purchased Assets; provided that (A) none of Buyer in connection with providing customary back-up certificates and factual information regarding Seller nor any legal opinion that such counsel may of its Affiliates shall be required to deliver in connection with the Debt Financingtake any action that would be prohibited by any applicable Law, in each case, solely to the extent reasonable and customary for financings (B) no obligations of such type, and (j) obtaining and providing documents to Buyer (including draft payoff letters) relating to the repayment of the Indebtedness and the release of related guarantees and Liens in accordance with the terms of this Agreement. The Company hereby consents, on behalf of itself and the Group Companies, to the use of the logos of the Group Companies in connection with the Debt Financing; provided that such logos are used solely in a manner that is not intended to, nor is reasonably likely to, harm or disparage the Company’s Seller or any of its Affiliates’ reputation Affiliates under any certificate, contract, or goodwill.
8.11.2. Notwithstanding anything in other document or instrument delivered pursuant to this Agreement to Section 6.16 shall be effective until the contraryClosing Date, (a) no Group Company and none of Seller nor any of their respective Representatives shall be required, under the provisions of this Section 8.11 or otherwise in connection with the Debt Financing, to pay any commitment or other similar fee or enter into any binding agreement (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) or commitment or incur any other actual or potential liability or obligation in connection with the Debt Financing prior to the Closing that is not advanced by Buyer, (b) no Group Company or any of their respective Representatives, managers, officers or employees its Affiliates shall be required to execute take any action pursuant to this Section 6.16 under any certificate, contract, or enter into, perform other document or authorize any agreement with respect to the Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) instrument that is not contingent upon the Closing or that would be effective prior to the Closing Date, (cC) no Representativeany requested cooperation shall not interfere with the ongoing operations of Seller and its Affiliates or their financing, manager(D) Seller and its Affiliates shall not be deemed to be in breach of this Section 6.16(a) unless a court of competent jurisdiction has determined by final and non-appealable judgment that a Financing was not consummated solely due to the failure of Seller and its Affiliates to comply with this Section 6.16(a), officer and (E) for the avoidance of doubt, it is hereby understood and agreed that neither the obtaining of the Financing, any alternative debt financing from the same or employee alternative sources or a refinancing transaction, nor the completion of any Group Company shall be required to deliver any certificate or take any other action pursuant to this Section 8.11 to issuance of securities contemplated by the extent any such action would reasonably be expected to result in personal liability to such RepresentativeFinancing, manager, officer or employee, (d) no Group Company or their respective Representatives shall be required to take any action that would reasonably be expected, in the reasonable judgment of the Company, to conflict with, or result in any violation or breach of, any applicable Laws, any organizational documents of any Group Company, any contract or obligations of confidentiality (not created in contemplation hereof) binding on any Group Company, (e) no Group Company or any of their respective Representatives shall be required to take any action that would cause any is a condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement, Closing.
(fb) no Group Company or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, the Company has, in its good faith, determined is not true, (g) no Group Companies or their respective Representatives shall be required to provideSeller shall, and shall cause its Affiliates to, execute and deliver such documents, and take such actions, as may be necessary or reasonably requested by Purchaser to facilitate the Buyer will be solely responsible for the preparation of: consummation of each Seller Encumbrance Release Transaction.
(1c) pro forma financial information; (2) any description of all or any component of the Debt Financing; or (3) projectionsPurchaser shall, risk factors or other forward-looking statements relating to all or any component of the Debt Financing; and (h) no Group Company shall be required to provide access to or disclose information that the Company determines would jeopardize any attorney–client privilege or other similar privilege of the Company or any of its Subsidiaries. Promptly promptly upon request by the CompanySeller accompanied by a reasonably detailed invoice, Xxxxx will reimburse the Company Seller for any all reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred by the Company, the Company Subsidiaries or any of their Representatives in connection with the cooperation of the Company, the Company Subsidiaries and their Representatives contemplated by this Section 8.11. Except in the case of fraud or a breach of this Agreement, Buyer shall indemnify, defend, and hold harmless the Group Companies and their respective Representatives from and against any and all losses, damages, awards, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecution, investigation, defense or settlement of any of the foregoing) and other amounts suffered or incurred by them in connection with (i) any action taken by them at the request of Buyer pursuant to this Section 8.11 or in connection with the arrangement of the Debt Financing or (ii) any information utilized in connection therewith, and the foregoing obligations shall survive termination of this Agreement and the occurrence of the Closing. In addition, no action, liability or obligation of the Company, any of the Company Subsidiaries or any of their respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to any Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) will be effective until the Closing Date. All material, non-public information regarding the Group Companies provided to Buyer Seller or any of its Representatives pursuant to this Section 8.11 shall be kept confidential by them Affiliates in accordance with the Confidentiality Agreement except for disclosure to potential investors as required in connection with the Debt Financing subject to customary confidentiality protections. Notwithstanding anything to the contrary, the Company shall be deemed to have complied with this Section 8.11 for all purposes of this Agreement (including Article 6 and Article 7) unless the Debt Financing has not been obtained primarily as a result of the Company’s Willful Breach of satisfying its obligations under this Section 8.11. Notwithstanding anything herein to the contrary, Xxxxx acknowledges and agrees that obtaining any Debt Financing is not a condition to the Closing6.16.
Appears in 1 contract
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (xa) provide Seller and the Company with written notice that such Debt Financing has been obtained and (y) deliver (or cause to be delivered) to Seller and the Company true, correct and complete copies of all arrangements pursuant to which any Financing Parties shall have committed to provide any portion of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further that, in no event shall the receipt of such Debt Financing be a condition to Closing and Buyer confirms that it Parent will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. Prior to the Closing, subject to Section 8.11.2, the Company shall use reasonable best efforts to, and shall use reasonable best efforts to cause obtain Financing (or in the Company Subsidiaries event any portion or all of the Committed Financing becomes unavailable (after giving effect to any other financing that may then be available to cover such unavailable amount) and its and their respective Representatives tosuch amount is necessary to pay the Merger Amounts, alternative debt financing (in each case at Buyer’s sole expensean amount sufficient, provide to Buyer such cooperation reasonably requested by Buyer that is reasonably necessary in arranging, obtaining and syndicating the Debt Financing, if any (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere together with the operations of the Group Companies), including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies as may be reasonably requested by Buyer for the completion of the Debt remaining Financing, (b) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies in connection with the Debt Financing to the extent reasonable and customary for financings of such type, (c) reasonably assisting in the preparation of (i) customary bank information memoranda, lender and investor presentations, offering documents, offering or private placement memoranda and other similar marketing documents and due diligence efforts for the Debt Financing and (ii) customary authorization and representation letters, each as required in connection with the Debt Financing, authorizing the distribution of information to prospective lenders and containing a representation that the public side of such documents, if any, do not include and any information about any Group Company or any securities of any Group Company that would constitute material non-public information within other sources available to Parent, Merger Sub I and Merger Sub II, to fund the meaning payment of the United States federal and state securities laws Merger Amounts) from the same or other sources (any such alternative debt financing that Parent obtains if any Group Company were portion or all of the Committed Financing becomes unavailable, a public reporting company, (d“Replacement Financing”)) using required to fund the payment of the Merger Amounts on the Closing Date. It is understood and agreed that in no event will the reasonable best efforts of Parent be deemed or construed to cause require Parent to pay any fees materially in excess of those contemplated by the Commitment Letter (or the related fee letter) (including market flex provisions set forth therein) as in effect on the date of this Agreement, or agree to any market flex provision less favorable to Parent than the market flex provisions contained in the fee letter as in effect on the date of this Agreement (in either case, whether to secure waiver of any conditions contained therein or otherwise). Upon request by the Company’s independent registered accounting firm to provide customary assistance, including (i) providing customary comfort letters (including “negative assurance comfort” Parent shall keep the Company informed on a reasonable basis and “change period comfort”) in connection with any capital markets transaction comprising a part reasonable detail of the Debt status of its efforts to arrange the Financing, (ii) providing customary consents to the inclusion of their audit report in respect of any financial statements of . Parent shall give the Company and the Company Subsidiaries in any offering documents relating to the Debt Financing and (iii) reasonable assistance and cooperation to Buyer with respect to any auditor due diligence, (e) subject to and conditioned on the occurrence of the Closing, the taking of customary corporate actions reasonably necessary to permit the consummation of and funding of the Debt Financing, (f) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth in any definitive document relating to the Debt Financing to the extent satisfaction of such condition requires the cooperation prompt notice upon becoming aware of, or is within the control ofreceiving written notice 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 breach of or default under, the Group CompaniesCommitment Letter by a party thereto or any termination, (g) delivering to Buyer at least three (3) Business Days prior to the Closing all such documentation and information as is reasonably requested in writing by Buyer at least ten (10) Business Days prior to the Closing to the extent required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act and the requirements of 31 C.F.R. §1010.230, (h) facilitating and assisting in the preparation and delivery of any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates withdrawal or other definitive documents relating to the Debt Financing relating to the Group Companies, and their respective businesses to be included in the definitive documents relating to the Debt Financing, and assist with the execution and delivery rescission of the same, in each case, solely to the extent reasonable and customary for financings of such type, (i) cooperating with internal and external counsel of Buyer 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 Debt Financing, in each case, solely to the extent reasonable and customary for financings of such type, and (j) obtaining and providing documents to Buyer (including draft payoff letters) relating to the repayment of the Indebtedness and the release of related guarantees and Liens in accordance with the terms of this Agreement. The Company hereby consents, on behalf of itself and the Group Companies, to the use of the logos of the Group Companies in connection with the Debt Financing; provided that such logos are used solely in a manner that is not intended to, nor is reasonably likely to, harm or disparage the Company’s or any of its Affiliates’ reputation or goodwill.
8.11.2Commitment Letter. Notwithstanding anything in this Agreement to the contrary, (a) no Group Company each of Parent, Merger Sub I and Merger Sub II expressly acknowledges and agrees that neither the availability nor any of their respective Representatives shall be required, under the provisions of this Section 8.11 or otherwise in connection with the Debt Financing, to pay any commitment or other similar fee or enter into any binding agreement (other than the execution terms of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) or commitment or incur any other actual or potential liability or obligation in connection with the Debt Financing prior are conditions to the Closing that is not advanced obligations of Parent, Merger Sub I and Merger Sub II to consummate the Mergers, and each of Parent, Merger Sub I and Merger Sub II reaffirms its obligation to consummate the Mergers and the other transactions contemplated by Buyerthis Agreement subject only to the express conditions set forth in Article VII, irrespective and independent of the availability or terms of the Financing.
(b) no Group Company or any of their respective Representatives, managers, officers or employees shall be required to execute or enter into, perform or authorize any agreement with respect to the Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) that is not contingent upon the Closing or that would be effective prior to the Closing Date, (c) no Representative, manager, officer or employee of any Group Company shall be required to deliver any certificate or take any other action pursuant to this Section 8.11 to the extent any such action would reasonably be expected to result in personal liability to such Representative, manager, officer or employee, (d) no Group Company or their respective Representatives shall be required to take any action that would reasonably be expected, in the reasonable judgment of the Company, to conflict with, or result in any violation or breach of, any applicable Laws, any organizational documents of any Group Company, any contract or obligations of confidentiality (not created in contemplation hereof) binding on any Group Company, (e) no Group Company or any of their respective Representatives shall be required to take any action that would cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement, (f) no Group Company or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, the Company has, in its good faith, determined is not true, (g) no Group Companies or their respective Representatives shall be required to provide, and the Buyer will be solely responsible for the preparation of: (1) pro forma financial information; (2) any description of all or any component of the Debt Financing; or (3) projections, risk factors or other forward-looking statements relating to all or any component of the Debt Financing; and (h) no Group Company shall be required to provide access to or disclose information that the Company determines would jeopardize any attorney–client privilege or other similar privilege of the Company or any of its Subsidiaries. Promptly upon request by the Company, Xxxxx will reimburse the Company for any reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Company, the Company Subsidiaries or any of their Representatives in connection with the cooperation of the Company, the Company Subsidiaries and their Representatives contemplated by this Section 8.11. Except in the case of fraud or a breach of this Agreement, Buyer shall indemnify, defend, and hold harmless the Group Companies and their respective Representatives from and against any and all losses, damages, awards, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecution, investigation, defense or settlement of any of the foregoing) and other amounts suffered or incurred by them in connection with (i) any action taken by them at the request of Buyer pursuant to this Section 8.11 or in connection with the arrangement of the Debt Financing or (ii) any information utilized in connection therewith, and the foregoing obligations shall survive termination of this Agreement and the occurrence of the Closing. In addition, no action, liability or obligation of the Company, any of the Company Subsidiaries or any of their respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to any Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) will be effective until the Closing Date. All material, non-public information regarding the Group Companies provided to Buyer or any of its Representatives pursuant to this Section 8.11 shall be kept confidential by them in accordance with the Confidentiality Agreement except for disclosure to potential investors as required in connection with the Debt Financing subject to customary confidentiality protections. Notwithstanding anything to the contrary, the Company shall be deemed to have complied with this Section 8.11 for all For purposes of this Agreement (including Article 6 other than Section 5.2(k)), the term “Financing” shall mean (i) the Committed Financing, (ii) any Replacement Financing, (iii) any Bond Financing and Article 7(iv) unless any other financing arrangement arranged by Parent to fund the Debt Financing has not been obtained primarily as a result of the Company’s Willful Breach of its obligations under this Section 8.11. Notwithstanding anything herein to the contrary, Xxxxx acknowledges and agrees that obtaining any Debt Financing is not a condition to the ClosingMerger Amounts.
Appears in 1 contract
Samples: Merger Agreement (Univar Inc.)
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (x) provide Seller and the Company with written notice that such Debt Financing has been obtained and (y) deliver (or cause to be delivered) to Seller and the Company true, correct and complete copies of all arrangements pursuant to which any Financing Parties shall have committed to provide any portion of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further that, in no event shall the receipt of such Debt Financing be a condition to Closing and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. Prior to the Closing, subject to Section 8.11.2upon the reasonable written request of Purchaser, the Company shall use reasonable best efforts toSeller shall, and shall cause (or, with respect to Eureka and its Subsidiaries, use commercially reasonable best efforts to cause cause) the Company Subsidiaries and its Acquired Entities and their respective Representatives representatives to, in each case at Buyer’s sole expense, provide use commercially reasonable efforts to Buyer such cooperation cooperate reasonably requested by Buyer that is reasonably necessary in arranging, obtaining and syndicating the Debt Financing, if any (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the operations of the Group Companies), including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies as may be reasonably requested by Buyer for the completion of the Debt Financing, (b) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies in connection with the Debt Financing efforts of Purchaser in arranging the assumption, retirement, refinancing or any other course of action Purchaser elects to take with respect to the extent Credit Agreements, including using commercially reasonable and customary for financings of such type, (c) reasonably assisting in the preparation of efforts to: (i) cooperate reasonably with any customary bank information memoranda, lender and investor presentations, offering documents, offering or private placement memoranda and other similar marketing documents and due diligence efforts for the Debt Financing and process; (ii) customary authorization and representation letters, each furnish as required in connection with the Debt Financing, authorizing the distribution of information to prospective lenders and containing a representation that the public side of such documents, if any, do not include any information about any Group Company or any securities of any Group Company that would constitute material non-public information within the meaning of the United States federal and state securities laws if any Group Company were a public reporting company, (d) using reasonable best efforts to cause the Company’s independent registered accounting firm to provide customary assistance, including (i) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) in connection with any capital markets transaction comprising a part of the Debt Financing, (ii) providing customary consents to the inclusion of their audit report in respect of any financial statements of the Company and the Company Subsidiaries in any offering documents relating to the Debt Financing and (iii) reasonable assistance and cooperation to Buyer with respect to any auditor due diligence, (e) subject to and conditioned on the occurrence of the Closing, the taking of customary corporate actions reasonably necessary to permit the consummation of and funding of the Debt Financing, (f) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth in any definitive document relating to the Debt Financing to the extent satisfaction of such condition requires the cooperation of, or is within the control of, the Group Companies, (g) delivering to Buyer at least three (3) Business Days prior to the Closing promptly as practicable all such documentation and other information required by any Governmental Entity or as is reasonably requested in writing by Buyer at least ten (10) Business Days prior to the Closing to the extent required by U.S. regulatory authorities any lender under applicable “know your customer” and or anti-money laundering rules and regulations, (iii) execute and deliver any definitive financing documents, including any necessary pledge and security documents, as reasonably requested by Purchaser and otherwise facilitating the PATRIOT Act and the requirements pledging of 31 C.F.R. §1010.230, (h) facilitating and assisting in the preparation and delivery of any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents relating to the Debt Financing relating to the Group Companies, and their respective businesses to be included in the definitive documents relating to the Debt Financing, and assist with the execution and delivery of the same, in each case, solely to the extent reasonable and customary for financings of such type, (i) cooperating with internal and external counsel of Buyer collateral in connection with providing customary back-up certificates any refinancing of the Credit Agreements, if applicable, by Purchaser, including taking reasonable actions necessary to permit any potential financing sources to evaluate the Acquired Entities’ assets for the purpose of establishing collateral arrangements (including establishing bank and factual information regarding any legal opinion that such counsel may be required to deliver other accounts and blocked account and control agreements in connection with the Debt Financingforegoing), in each case(iv) if applicable, solely seek to obtain customary payoff letters, lien terminations and releases and instruments of discharge to be delivered at Closing providing for the extent reasonable payoff, discharge and customary for financings termination on the Closing Date of Indebtedness under the Credit Agreements and release of liens contemplated by any repayment or refinancing of such typeIndebtedness to be paid off, discharged and (j) obtaining and providing documents to Buyer (including draft payoff letters) relating to terminated on the repayment of the Indebtedness and the release of related guarantees and Liens in accordance with the terms of this Agreement. The Company hereby consents, on behalf of itself and the Group Companies, to the use of the logos of the Group Companies in connection with the Debt FinancingClosing Date; provided that the documents in respect of such logos are used solely in a manner that is not intended to, nor is reasonably likely to, harm or disparage the Company’s or any of its Affiliates’ reputation or goodwill.
8.11.2. Notwithstanding anything in this Agreement to the contrary, (a) no Group Company nor any of their respective Representatives shall be required, under the provisions of this Section 8.11 or otherwise in connection with the Debt Financing, to pay any commitment or other similar fee or enter into any binding agreement (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) or commitment or incur any other actual or potential liability or obligation in connection with the Debt Financing prior to the Closing that is not advanced by Buyer, (b) no Group Company or any of their respective Representatives, managers, officers or employees shall be required to execute or enter into, perform or authorize any agreement with respect to the Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) that is not contingent upon the Closing or that would be effective prior to the Closing Date, (c) no Representative, manager, officer or employee of any Group Company shall be required to deliver any certificate or take any other action pursuant to this Section 8.11 to the extent any such action would reasonably be expected to result in personal liability to such Representative, manager, officer or employee, (d) no Group Company or their respective Representatives shall be required to take any action that would reasonably be expected, in the reasonable judgment of the Company, to conflict with, or result in any violation or breach of, any applicable Laws, any organizational documents of any Group Company, any contract or obligations of confidentiality (not created in contemplation hereof) binding on any Group Company, (e) no Group Company or any of their respective Representatives shall be required to take any action that would cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement, (f) no Group Company or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, the Company has, in its good faith, determined is not true, (g) no Group Companies or their respective Representatives shall be required to provide, and the Buyer will be solely responsible for the preparation of: (1) pro forma financial information; (2) any description of all or any component of the Debt Financing; or (3) projections, risk factors or other forward-looking statements relating to all or any component of the Debt Financing; and (h) no Group Company shall be required to provide access to or disclose information that the Company determines would jeopardize any attorney–client privilege or other similar privilege of the Company or any of its Subsidiaries. Promptly upon request by the Company, Xxxxx will reimburse the Company for any reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Company, the Company Subsidiaries or any of their Representatives in connection with the cooperation of the Company, the Company Subsidiaries and their Representatives arrangements contemplated by this Section 8.11. Except in the case of fraud or a breach of this Agreement, Buyer shall indemnify, defend, and hold harmless the Group Companies and their respective Representatives from and against any and all losses, damages, awards, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecution, investigation, defense or settlement of any of the foregoing) and other amounts suffered or incurred by them in connection with (i) any action taken by them at the request of Buyer pursuant to this Section 8.11 or in connection with the arrangement of the Debt Financing or (ii) any information utilized in connection therewith, and the foregoing obligations shall survive termination of this Agreement and the occurrence of the Closing. In addition, no action, liability or obligation of the Company, any of the Company Subsidiaries or any of their respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to any Debt Financing (other than the execution of the authorization letters referred to in clause (c)(iiiv) of Section 8.11.1) will shall not be effective until the Closing Date. All materialNotwithstanding the foregoing to the contrary, non-public information regarding the Group Companies provided to Buyer or neither Seller nor any of its Representatives pursuant to this Section 8.11 Affiliates (other than the Acquired Entities) shall be kept confidential by them in accordance with the Confidentiality Agreement except for disclosure obligated or required to potential investors as required execute, deliver, or otherwise provide or agree to: (i) any agreements, pledge or security documents, or other certificates, legal opinions, instruments or documents of any kind or character, in connection with the Debt Financing subject to customary confidentiality protections. Notwithstanding anything to Credit Agreements, and whether effective prior to, at or after Closing (and whether or not contingent upon the contraryClosing), including, without limitation, any affidavits, indemnities or similar such instruments, in favor of any title company, lender or any other Person or (ii) any agreements, certificates, instruments or documents of any kind or character which expands or otherwise modifies either the Company shall be deemed to have complied with this Section 8.11 for all purposes of representations and warranties contained in this Agreement (including Article 6 and Article 7) unless the Debt Financing has not been obtained primarily as a result or any of the Company’s Willful Breach covenants or other obligations of Seller or its obligations under this Section 8.11. Notwithstanding anything herein Affiliates to the contrary, Xxxxx acknowledges and agrees that obtaining any Debt Financing is not a condition to the ClosingPurchaser hereunder.
Appears in 1 contract
Samples: Purchase and Sale Agreement (EQM Midstream Partners, LP)
Financing Cooperation. 8.11.1. Buyer may determine, The Financing to be incurred in its sole discretion, to obtain debt financing to fund any portion of connection with the Stock Purchase Price (and the “Debt Financing”); provided that other transactions contemplated hereby by the Buyer shallshall be subject to the Stockholders’ Representative’s prior consent, promptly after such Debt Financing is obtained (x) provide Seller and the Company with written notice that such Debt Financing has been obtained and (y) deliver (or cause consent not to be delivered) to Seller and the Company true, correct and complete copies of all arrangements pursuant to which any Financing Parties shall have committed to provide any portion of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further that, in no event shall the receipt of such Debt Financing be a condition to Closing and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform its obligations hereunderunreasonably withheld. Prior to the Closing, subject to Section 8.11.2, the Company shall use commercially reasonable best efforts toto provide, and shall use commercially reasonable best efforts to cause the Company each of its Subsidiaries to provide, and shall use commercially reasonable efforts to cause its and their respective Representatives toto provide, in each case at Buyer’s sole expenseon a timely basis, provide to Buyer such all reasonable cooperation reasonably requested by the Buyer and that is reasonably necessary customary in arranging, obtaining and syndicating connection with the Debt Financing, if any arrangement of the Financing (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the ongoing operations of the Group CompaniesCompany), including using commercially reasonable efforts to (i) facilitate the provision of a credit agreement, guarantees, pledges of collateral and other customary documents in connection with the Financing (in each case, effective as promptly as reasonably practicalof the Closing), (aii) furnishing Buyer with the Required Financial Information provide financial and other pertinent information regarding the Group Companies Company and its Subsidiaries as may be reasonably requested in writing by the Buyer in order to consummate the Financing, (iii) provide information with respect to the properties and assets of the Company and its Subsidiaries as may be reasonably requested by Buyer for the completion of the Debt FinancingBuyer, (biv) participating participate in telephonic a reasonable number of informational and other meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies in connection with the Debt Financing to and (v) assist the extent reasonable Buyer and customary for financings of such type, (c) reasonably assisting its financing sources in the preparation of all agreements (i) customary bank information memoranda, lender and investor presentationsincluding review of schedules for completeness), offering documents, an offering or private placement memoranda memorandum and other similar marketing documents and due diligence efforts materials for the Debt Financing Financing, it being understood and (ii) customary authorization agreed that information and representation letters, each as required documents provided by the Company may be delivered to agents and lenders under documents in connection with the Debt Financing, authorizing the distribution of information Financing and their Representatives (subject to prospective lenders and containing a representation customary arrangements for confidentiality that the public side of such documents, if any, do not include any information about any Group Company or any securities of any Group Company that would constitute material non-public information within the meaning of the United States federal and state securities laws if any Group Company were a public reporting company, (d) using reasonable best efforts are acceptable to cause the Company’s independent registered accounting firm to provide customary assistance), including (i) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) in connection with any capital markets transaction comprising a part of the Debt Financing, (ii) providing customary consents to the inclusion of their audit report in respect of any financial statements of the Company and the Company Subsidiaries in any offering documents relating to the Debt Financing and (iii) reasonable assistance and cooperation to Buyer with respect to any auditor due diligence, (e) subject to and conditioned on the occurrence of the Closing, the taking of customary corporate actions reasonably necessary to permit the consummation of and funding of the Debt Financing, (f) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth in any definitive document relating to the Debt Financing to the extent satisfaction of such condition requires the cooperation of, or is within the control of, the Group Companies, (g) delivering to Buyer at least three (3) Business Days prior to the Closing all such documentation and information as is reasonably requested in writing by Buyer at least ten (10) Business Days prior to the Closing to the extent required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act and the requirements of 31 C.F.R. §1010.230, (h) facilitating and assisting in the preparation and delivery of any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents relating to the Debt Financing relating to the Group Companies, and their respective businesses to be included in the definitive documents relating to the Debt Financing, and assist with the execution and delivery of the same, in each case, solely to the extent reasonable and customary for financings of such type, (i) cooperating with internal and external counsel of Buyer 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 Debt Financing, in each case, solely to the extent reasonable and customary for financings of such type, and (j) obtaining and providing documents to Buyer (including draft payoff letters) relating to the repayment of the Indebtedness and the release of related guarantees and Liens in accordance with the terms of this Agreement. The Company hereby consents, on behalf of itself and the Group Companies, consenting to the use of the Company’s and its Subsidiaries’ logos of the Group Companies in connection with the Debt Financing; (provided that such logos are used solely in a manner that is not intended to, nor is to or reasonably likely to, to harm or disparage the Company’s Company or any of its Affiliates’ Subsidiaries or the reputation or goodwill.
8.11.2. Notwithstanding anything in this Agreement to the contrary, (a) no Group Company nor any of their respective Representatives shall be required, under the provisions of this Section 8.11 or otherwise in connection with the Debt Financing, to pay any commitment or other similar fee or enter into any binding agreement (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) or commitment or incur any other actual or potential liability or obligation in connection with the Debt Financing prior to the Closing that is not advanced by Buyer, (b) no Group Company or any of their respective Representatives, managers, officers or employees shall be required to execute or enter into, perform or authorize any agreement with respect to the Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) that is not contingent upon the Closing or that would be effective prior to the Closing Date, (c) no Representative, manager, officer or employee of any Group Company shall be required to deliver any certificate or take any other action pursuant to this Section 8.11 to the extent any such action would reasonably be expected to result in personal liability to such Representative, manager, officer or employee, (d) no Group Company or their respective Representatives shall be required to take any action that would reasonably be expected, in the reasonable judgment of the Company, to conflict with, or result in any violation or breach of, any applicable Laws, any organizational documents of any Group Company, any contract or obligations of confidentiality (not created in contemplation hereof) binding on any Group Company, (e) no Group Company or any of their respective Representatives shall be required to take any action that would cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement, (f) no Group Company or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, the Company has, in its good faith, determined is not true, (g) no Group Companies or their respective Representatives shall be required to provide, and the Buyer will be solely responsible for the preparation of: (1) pro forma financial information; (2) any description of all or any component of the Debt Financing; or (3) projections, risk factors or other forward-looking statements relating to all or any component of the Debt Financing; and (h) no Group Company shall be required to provide access to or disclose information that the Company determines would jeopardize any attorney–client privilege or other similar privilege goodwill of the Company or any of its Subsidiaries. Promptly upon request by the Company, Xxxxx will reimburse the Company for any reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Company, the Company Subsidiaries or any of their Representatives in connection with the cooperation of the Company, the Company Subsidiaries and their Representatives contemplated by this Section 8.11. Except in the case of fraud or a breach of this Agreement, Buyer shall indemnify, defend, and hold harmless the Group Companies and their respective Representatives from and against any and all losses, damages, awards, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecution, investigation, defense or settlement of any of the foregoing) and other amounts suffered or incurred by them in connection with (i) any action taken by them at the request of Buyer pursuant to this Section 8.11 or in connection with the arrangement of the Debt Financing or (ii) any information utilized in connection therewith, and the foregoing obligations shall survive termination of this Agreement and the occurrence of the Closing. In addition, no action, liability or obligation of the Company, any of the Company Subsidiaries or any of their respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to any Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) will be effective until the Closing Date. All material, non-public information regarding the Group Companies provided to Buyer or any of its Representatives pursuant to this Section 8.11 shall be kept confidential by them in accordance with the Confidentiality Agreement except for disclosure to potential investors as required in connection with the Debt Financing subject to customary confidentiality protections. Notwithstanding anything to the contrary, the Company shall be deemed to have complied with this Section 8.11 for all purposes of this Agreement (including Article 6 and Article 7) unless the Debt Financing has not been obtained primarily as a result of the Company’s Willful Breach of its obligations under this Section 8.11. Notwithstanding anything herein to the contrary, Xxxxx acknowledges and agrees that obtaining any Debt Financing is not a condition to the Closing).
Appears in 1 contract
Samples: Stock Purchase Agreement (Global Defense & National Security Systems, Inc.)
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (xa) provide Seller and the Company with written notice that such Debt Financing has been obtained and (y) deliver (or cause to be delivered) to Seller and the Company true, correct and complete copies of all arrangements pursuant to which any Financing Parties shall have committed to provide any portion of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further that, in no event shall the receipt of such Debt Financing be a condition to Closing and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. Prior to the Closing, subject to Section 8.11.2the Seller, the Company shall use reasonable best efforts toand the Relevant Entities shall, and shall use reasonable best efforts to cause the appropriate officers and employees of the Company Subsidiaries and its and their respective Representatives tothe Relevant Entities to provide reasonable cooperation as is reasonably requested by Buyer, in each case at Buyer’s sole cost and expense, provide to Buyer such cooperation reasonably requested by Buyer that is reasonably necessary upon reasonable prior notice in arranging, obtaining and syndicating connection with the Debt Financing, if any including (provided that such requested cooperation is consistent with applicable Laws without limitation): (i) participating in a reasonable number of meetings (including customary one-on-one meetings between the Lenders and/or rating agencies and does not unreasonably interfere with the operations appropriate senior management of the Group CompaniesCompany or the Relevant Entities), including presentations, due diligence sessions, and other marketing efforts, so long as promptly as reasonably practicalany such meetings, presentations or sessions may be attended virtually, (aii) furnishing reasonably assisting Buyer in the preparation and execution (subject, other than with respect to customary authorization letters, to the Required Financial Information occurrence of the Closing) of management representation letters and other pertinent materials reasonably and customarily requested and delivering any possessory collateral within its possession to the Lenders (subject to the occurrence of the Closing); (ii) providing reasonably promptly to Buyer and its financing sources such financial and other information regarding the Group Companies Company or any Relevant Entity as may be is reasonably requested by Buyer for the completion of in connection with the Debt Financing, (b) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate materials for rating agency presentations and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies in connection with the Debt Financing to the extent reasonable and customary for financings of such type, (c) reasonably assisting in the preparation of (i) customary bank information memoranda, lender and investor presentations, offering documents, offering or private placement memoranda and other similar marketing documents and due diligence efforts for the Debt Financing and (ii) customary authorization and representation letters, each as required in connection with the Debt Financing, authorizing the distribution of information to prospective lenders and containing a representation that the public side of such documents, if any, do not include any information about any Group Company or any securities of any Group Company that would constitute material non-public information within the meaning of the United States federal and state securities laws if any Group Company were a public reporting company, (d) using reasonable best efforts to cause the Company’s independent registered accounting firm to provide customary assistance, including (i) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) in connection with any capital markets transaction comprising a part of the Debt Financing, (ii) providing customary consents to the inclusion of their audit report in respect of any financial statements of the Company and the Company Subsidiaries in any offering documents relating to the Debt Financing and ; (iii) reasonable assistance and cooperation to Buyer with respect to any auditor due diligence, (e) subject to and conditioned on the occurrence of the Closing, the taking of customary corporate actions reasonably necessary to permit the consummation of and funding of the Debt Financing, (f) reasonably assisting cooperating in Buyer’s efforts to satisfy satisfying the conditions precedent set forth in any definitive document documentation relating the Debt Financing;(iv) taking all reasonably requested formal corporate actions, subject to the Debt Financing to occurrence of the extent satisfaction of such condition requires the cooperation of, or is within the control of, the Group Companies, Closing; and (gv) delivering to Buyer at least three (3) Business Days prior to the Closing Date all such documentation and information as is reasonably requested in writing by Buyer the Lenders at least ten five (105) Business Days prior to the Closing to Date about the extent Company or any Relevant Entity required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act Act; and (vii) (1) delivering to Buyer and the requirements of 31 C.F.R. §1010.230, (h) facilitating and assisting Lenders the historical financial statements regarding the Acquired Companies identified in the Debt Commitment Letters and (2) reasonably assisting Buyer in its preparation and delivery of any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents relating the pro forma financial statements.
(b) Notwithstanding anything to the Debt Financing relating to contrary in this Agreement, none of the Group Companies, and Seller or its Affiliates or any Acquired Company or any of their respective businesses officers, directors or employees shall be required to be included in the definitive documents relating to the Debt Financing, and assist with the execution and delivery of the same, in each case, solely to the extent reasonable and customary for financings of such type, (i) cooperating with internal and external counsel pay any commitment or other similar fee prior to the Closing, (ii) approve any document or other matter related to the financing or incur any liability of Buyer in connection with providing customary back-up certificates and factual information regarding any legal opinion that such counsel may be required kind (or cause their Representatives to deliver incur any liability of any kind) prior to the Closing, (iii) enter into any agreement or commitment in connection with the Debt Financing (or any Alternative Financing) which would be effective prior to the Closing or provide any certification or opinion of any Acquired Company which would be effective prior to the Closing, in each case(iv) provide any resolution, solely certificate, consent, comfort letter or opinion, other than customary authorization letters, (v) provide access to or disclose any information to Buyer or its Representatives to the extent reasonable and customary for financings such disclosure would jeopardize the attorney-client privilege or attorney work product protections or violate any applicable Law or Material Contract, or (vi) take any action that could (A) unreasonably interfere with the day-to-day operations of such typePerson, and (jB) obtaining and providing documents cause any representation, warranty, covenant or agreement in this Agreement or any Transaction Document to Buyer be breached, (including draft payoff lettersC) relating cause any director, manager, officer or employee of Seller, its Affiliates or any Acquired Company to incur any personal liability, (D) conflict with the Organizational Documents of the Company or any Relevant Entity or any Law, (E) result in the contravention of, or that could reasonably be expected to result in a violation or breach of, or a default under, any material Contract, (F) change any fiscal period, or (G) authorize any corporate action prior to the repayment Closing (it being agreed that directors and officers of the Indebtedness and Acquired Companies may sign resolutions or consents that do not become effective until the release of related guarantees and Liens in accordance with Closing to the terms of this Agreement. extent that they shall remain directors and/or officers after giving effect to the Closing).
(c) The Company hereby consentsSeller, on behalf of itself the Company and the Group CompaniesRelevant Entities, hereby consents to the use of the Relevant Entities’ logos of the Group Companies in connection with the Debt Financing; provided provided, that such logos are used solely in a manner that is not intended to, to nor is reasonably likely to, to harm or disparage the Company’s or any of its Affiliates’ reputation or goodwill.
8.11.2. Notwithstanding anything in this Agreement to the contrary, (a) no Group Company nor any of their respective Representatives shall be required, under the provisions of this Section 8.11 or otherwise in connection with the Debt Financing, to pay any commitment or other similar fee or enter into any binding agreement (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) or commitment or incur any other actual or potential liability or obligation in connection with the Debt Financing prior to the Closing that is not advanced by Buyer, (b) no Group Company or any of their respective Representatives, managers, officers Relevant Entity or employees shall be required to execute the Reputation or enter into, perform or authorize any agreement with respect to the Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) that is not contingent upon the Closing or that would be effective prior to the Closing Date, (c) no Representative, manager, officer or employee of any Group Company shall be required to deliver any certificate or take any other action pursuant to this Section 8.11 to the extent any such action would reasonably be expected to result in personal liability to such Representative, manager, officer or employee, (d) no Group Company or their respective Representatives shall be required to take any action that would reasonably be expected, in the reasonable judgment of the Company, to conflict with, or result in any violation or breach of, any applicable Laws, any organizational documents of any Group Company, any contract or obligations of confidentiality (not created in contemplation hereof) binding on any Group Company, (e) no Group Company or any of their respective Representatives shall be required to take any action that would cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement, (f) no Group Company or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, the Company has, in its good faith, determined is not true, (g) no Group Companies or their respective Representatives shall be required to provide, and the Buyer will be solely responsible for the preparation of: (1) pro forma financial information; (2) any description of all or any component of the Debt Financing; or (3) projections, risk factors or other forward-looking statements relating to all or any component of the Debt Financing; and (h) no Group Company shall be required to provide access to or disclose information that the Company determines would jeopardize any attorney–client privilege or other similar privilege goodwill of the Company or any Relevant Entity and their marks.
(d) The Seller and the Seller’s Representative, on behalf of itself and its Subsidiaries. Promptly upon request by the Companyrespective equity holders, Xxxxx will reimburse the Company for Affiliates, directors, managers, officers, employees, agents and representatives, each hereby (x) waives any reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Company, the Company Subsidiaries rights or claims against any of their Representatives Lender in connection with the cooperation of the Company, the Company Subsidiaries and their Representatives contemplated by this Section 8.11. Except in the case of fraud or a breach of this Agreement, Buyer shall indemnify, defend, and hold harmless the Group Companies and their respective Representatives from and against any and all losses, damages, awards, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecution, investigation, defense or settlement of any of the foregoing) and other amounts suffered or incurred by them in connection with (i) any action taken by them at the request of Buyer pursuant to this Section 8.11 or in connection with the arrangement of the Debt Financing or (ii) any information utilized in connection therewith, and the foregoing obligations shall survive termination of this Agreement and the occurrence of the Closing. In addition, no action, liability or obligation of the Company, any of the Company Subsidiaries or any of their respective Representatives pursuant agreements to which any certificate, agreement, arrangement, document Lender has loaned or instrument relating committed to loan any Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) will be effective until the Closing Date. All material, non-public information regarding the Group Companies provided money or extended any financing to Buyer or any of its Representatives pursuant Affiliates (collectively, the “Loan Documents”) or any of the transactions contemplated hereby or thereby, whether at law or in equity, in contract or in tort or otherwise, and agree not to this Section 8.11 shall be kept confidential by them in accordance with the Confidentiality Agreement except for disclosure to potential investors as required commence any claim, action, suit or other legal proceeding against any Lender in connection with this Agreement, the Debt Financing subject Loan Documents or the transactions contemplated hereby or thereby, and (y) agrees not to customary confidentiality protectionscommence (and if commenced, agrees to dismiss or otherwise terminate) any claim, action, suit or other legal proceeding against any Lender in connection with this Agreement, the Loan Documents or the transactions contemplated hereby or thereby. Notwithstanding anything In furtherance and not in limitation of the foregoing waiver, the Parties hereby agree that no Lender shall have any liability for any claims, losses, settlements, damages, costs, expenses, fines, penalties or interest to the contrarySeller and the Seller’s Representative (or any of their respective equity holders, Affiliates, directors, managers, officers, employees, agents or representatives) in connection with this Agreement, the Company shall be deemed to have complied with this Section 8.11 for all purposes of this Agreement (including Article 6 and Article 7) unless the Debt Financing has not been obtained primarily as a result of the Company’s Willful Breach of its obligations under this Section 8.11. Notwithstanding anything herein to the contrary, Xxxxx acknowledges and agrees that obtaining Loan Documents or any Debt Financing is not a condition to the Closingtransaction contemplated hereby or thereby.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (GPB Holdings II, LP)
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (x) provide Seller and the Company with written notice that such Debt Financing has been obtained and (y) deliver (or cause to be delivered) to Seller and the Company true, correct and complete copies of all arrangements pursuant to which any Financing Parties shall have committed to provide any portion of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further that, in no event shall the receipt of such Debt Financing be a condition to Closing and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. Prior to the Closing, subject to Section 8.11.2, the Company shall use reasonable best efforts to, and shall use reasonable best efforts to cause the Company Subsidiaries and its and their respective Representatives to, in each case at Buyer’s sole expense, provide to Buyer such cooperation reasonably requested by Buyer that is reasonably necessary in arranging, obtaining and syndicating the Debt Financing, if any (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the operations of the Group Companies), including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies as may be reasonably requested by Buyer for the completion of the Debt Financing, (b) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies in connection with the Debt Financing to the extent reasonable and customary for financings of such type, (c) reasonably assisting in the preparation of (i) customary bank information memoranda, lender and investor presentations, offering documents, offering or private placement memoranda and other similar marketing documents and due diligence efforts for the Debt Financing and (ii) customary authorization and representation letters, each as required in connection with the Debt Financing, authorizing the distribution of information to prospective lenders and containing a representation that the public side of such documents, if any, do not include any information about any Group Company or any securities of any Group Company that would constitute material non-public information within the meaning of the United States federal and state securities laws if any Group Company were a public reporting company, (d) using reasonable best efforts to cause the Company’s independent registered accounting firm to provide customary assistance, including (i) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) in connection with any capital markets transaction comprising a part of the Debt Financing, (ii) providing customary consents to the inclusion of their audit report in respect of any financial statements of the Company and the Company Subsidiaries in any offering documents relating to the Debt Financing and (iii) reasonable assistance and cooperation to Buyer with respect to any auditor due diligence, (e) subject to and conditioned on the occurrence of the Closing, the taking of customary corporate actions reasonably necessary to permit the consummation of and funding of the Debt Financing, (f) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth in any definitive document relating to the Debt Financing to the extent satisfaction of such condition requires the cooperation of, or is within the control of, the Group Companies, (g) delivering to Buyer at least three (3) Business Days prior to the Closing all such documentation and information as is reasonably requested in writing by Buyer at least ten (10) Business Days prior to the Closing to the extent required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act and the requirements of 31 C.F.R. §1010.230, (h) facilitating and assisting in the preparation and delivery of any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents relating to the Debt Financing relating to the Group Companies, and their respective businesses to be included in the definitive documents relating to the Debt Financing, and assist with the execution and delivery of the same, in each case, solely to the extent reasonable and customary for financings of such type, (i) cooperating with internal and external counsel of Buyer 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 Debt Financing, in each case, solely to the extent reasonable and customary for financings of such type, and (j) obtaining and providing documents to Buyer (including draft payoff letters) relating to the repayment of the Indebtedness and the release of related guarantees and Liens in accordance with the terms of this Agreement. The Company hereby consents, on behalf of itself and the Group Companies, to the use of the logos of the Group Companies in connection with the Debt Financing; provided that such logos are used solely in a manner that is not intended to, nor is reasonably likely to, harm or disparage the Company’s or any of its Affiliates’ reputation or goodwill.
8.11.2. Notwithstanding anything in this Agreement to the contrary, (a) no Group Company nor any of their respective Representatives shall be required, under the provisions of this Section 8.11 or otherwise in connection with the Debt Financing, to pay any commitment or other similar fee or enter into any binding agreement (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) or commitment or incur any other actual or potential liability or obligation in connection with the Debt Financing prior to the Closing that is not advanced by Buyer, (b) no Group Company or any of their respective Representatives, managers, officers or employees shall be required to execute or enter into, perform or authorize any agreement with respect to the Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) that is not contingent upon the Closing or that would be effective prior to the Closing Date, (c) no Representative, manager, officer or employee of any Group Company shall be required to deliver any certificate or take any other action pursuant to this Section 8.11 to the extent any such action would reasonably be expected to result in personal liability to such Representative, manager, officer or employee, (d) no Group Company or their respective Representatives shall be required to take any action that would reasonably be expected, in the reasonable judgment of the Company, to conflict with, or result in any violation or breach of, any applicable Laws, any organizational documents of any Group Company, any contract or obligations of confidentiality (not created in contemplation hereof) binding on any Group Company, (e) no Group Company or any of their respective Representatives shall be required to take any action that would cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement, (f) no Group Company or any of their respective Representatives shall be required to make any representation, warranties or certifications as to which, the Company has, in its good faith, determined is not true, (g) no Group Companies or their respective Representatives shall be required to provide, and the Buyer will be solely responsible for the preparation of: (1) pro forma financial information; (2) any description of all or any component of the Debt Financing; or (3) projections, risk factors or other forward-looking statements relating to all or any component of the Debt Financing; and (h) no Group Company shall be required to provide access to or disclose information that the Company determines would jeopardize any attorney–client privilege or other similar privilege of the Company or any of its Subsidiaries. Promptly upon request by the Company, Xxxxx Buyer will reimburse the Company for any reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Company, the Company Subsidiaries or any of their Representatives in connection with the cooperation of the Company, the Company Subsidiaries and their Representatives contemplated by this Section 8.11. Except in the case of fraud or a breach of this Agreement, Buyer shall indemnify, defend, and hold harmless the Group Companies and their respective Representatives from and against any and all losses, damages, awards, fines, penalties, expenses, fees, costs, actions, demands, judgment, Taxes, fines, fees, expenses (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecution, investigation, defense or settlement of any of the foregoing) and other amounts suffered or incurred by them in connection with (i) any action taken by them at the request of Buyer pursuant to this Section 8.11 or in connection with the arrangement of the Debt Financing or (ii) any information utilized in connection therewith, and the foregoing obligations shall survive termination of this Agreement and the occurrence of the Closing. In addition, no action, liability or obligation of the Company, any of the Company Subsidiaries or any of their respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to any Debt Financing (other than the execution of the authorization letters referred to in clause (c)(ii) of Section 8.11.1) will be effective until the Closing Date. All material, non-public information regarding the Group Companies provided to Buyer or any of its Representatives pursuant to this Section 8.11 shall be kept confidential by them in accordance with the Confidentiality Agreement except for disclosure to potential investors as required in connection with the Debt Financing subject to customary confidentiality protections. Notwithstanding anything to the contrary, the Company shall be deemed to have complied with this Section 8.11 for all purposes of this Agreement (including Article 6 and Article 7) unless the Debt Financing has not been obtained primarily as a result of the Company’s Willful Breach of its obligations under this Section 8.11. Notwithstanding anything herein to the contrary, Xxxxx Buyer acknowledges and agrees that obtaining any Debt Financing is not a condition to the Closing.
Appears in 1 contract
