Financing Cooperation. (a) Subject to Section 6.16(b), prior to Closing or termination of this Agreement, the Company shall, and shall cause its Subsidiaries and their respective Representatives to, use reasonable best efforts to reasonably cooperate with and reasonably assist Parent, at the Parent’s request, sole cost and expense, in connection with arranging, obtaining and syndicating any Financing and causing the conditions in the Financing Documents and any commitment letters entered into in connection with such Financing to be satisfied, including using reasonable best efforts in (i) assisting with, and furnishing information for the purposes of, the preparation of customary prospectuses (including any pro forma financial information and any information required under Article 18(2) of Commission Delegated Regulation (EU) 2019/980), offering documents, syndication documents and materials, including bank information memoranda and private placement memoranda, lender and investor presentations, rating agency materials and presentations and other customary marketing materials in connection with the Financing (all such documents and materials, collectively, the “Marketing Documents”) (it being understood and agreed that the Marketing Documents shall include (or otherwise be subject to) any customary exculpation language, as the case may be, with respect to the Company, its Affiliates and their respective Representatives), (ii) furnishing to the Parent as promptly as reasonably practicable financial statements and operational information (including consolidated financial statements for interim periods up until the Closing Date) that can be prepared without undue burden with respect to the Company and its Subsidiary as is reasonably requested by Parent (the “Required Information”), (iii) assisting in the preparation of schedules to collateral agreements by providing information of the Company Entities required to be made available on such schedules for purposes of the arrangement or consummation of the Financing, (iv) subject to any contractual agreement in effect, facilitating the pledging of collateral for the Financing, which shall not be required to be delivered or effective until at or promptly following the Effective Time, (v) subject to any contractual agreement in effect, obtaining the Payoff Letter, and the related lien releases, and instruments of termination or discharge, as applicable, required pursuant to Section 6.12, in each case which shall provide that, if sufficient funds are received by the financing sources under the Credit Agreement in order to pay off in full all obligations (other than the Excluded Obligations) in connection therewith or secured thereby, such release, termination and/or discharge shall be effective, and (vi) furnishing Parent as promptly as reasonably practical (and at least three (3) business days prior to the Closing Date) with all documentation and other information related to the Company and its Subsidiary required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, that has been reasonably requested in writing by Parent or its Financing Sources at least ten (10) business days prior to the Closing Date. The Company hereby consents to the use of its and its Subsidiary’s logos in connection with the Financing so long as such logos are used solely (i) in a manner that is not intended to or that is not reasonably likely to harm or disparage the Company or its Subsidiary or the reputation or goodwill of the Company or its Subsidiary and (ii) solely in connection with a description of the Company, its business and products or the Merger. (b) Notwithstanding the requirements of Section 6.16(a) or anything in this Agreement to the contrary, (i) neither the Company nor any of its Affiliates or their respective Representatives shall be required to enter into, approve or perform (or commit to enter into, approve or perform) any certificate, document, agreement, or instrument, in each case which will be effective prior to the Effective Time, (ii) nothing herein shall require cooperation contemplated thereby to the extent it would interfere unreasonably with the business or operations of the Company or any of its Affiliates or their respective Affiliates, (iii) none of the Company nor any of its Affiliates or their respective Representatives, will be required to (1) pay or commit to pay any commitment or other fee, (2) reimburse or incur any costs or expenses or incur any other liability (including any guarantee, indemnity or pledge) in connection with the Financing or the Marketing Documents prior to the Effective Time, (3) provide any financial data other than the Required Information, or (4) provide any legal opinion or reliance letters or any certificate (in the case of the Company or its Subsidiary that would be required to be delivered prior to the Effective Time), comfort letter or opinion of any of its Representatives, (iv) nothing herein will involve any binding commitment by the Company, any of its Affiliates or any of their respective Representatives which commitment is not conditioned on the Effective Time and does not terminate without liability to the Company, its Affiliates and their respective Representatives upon the termination of this Agreement, and (v) nothing herein will require the Company, any of its Affiliates or any of their respective Representatives to provide any information or take any action, the disclosure or taking of which would violate applicable Legal Requirements, any fiduciary duty, any Contract or obligation of confidentiality owing to a third party, or jeopardize the protection of the attorney-client privilege (or similar protections) held by the Company or any of its Affiliates; provided that, if the Company does not provide or cause its Representatives to provide such access or such information in reliance on the foregoing, then the Company shall (1) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1) any Representative of the Company or its Subsidiary to deliver any certificate or opinion or take any other action under this Section 6.16 that could reasonably be expected to result in personal liability to such Representative; (2) the Board of Directors (or any committee or subcommittee thereof) or the board of directors, managers, managing member or any similar controlling body of any Subsidiary of the Company to approve (or otherwise take any corporate or similar action with respect to) any financing (including the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) the Company and its Subsidiary to take any action that would conflict with or violate its organizational or governance documents or any applicable Legal Requirements, or result in the contravention of, or that could reasonably be expected to result in a violation of breach of, or default under, any agreement to which the Company or its Subsidiary is a party. (c) Subject to any applicable Legal Requirements, all non-public or other confidential information provided by the Company, its Subsidiary or any of their respective Representatives pursuant to this Agreement will be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Purchaser will be permitted to disclose such information to any Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties to the Financing and to any underwriters, initial purchasers or placement agents in connection with the Financing (and, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; or (ii) are subject to other confidentiality undertakings reasonably satisfactory to the Company and of which the Company is a beneficiary. (d) If the Closing does not occur, promptly upon request by the Company, Parent will reimburse the Company for any documented and reasonable out-of-pocket costs and expenses (including attorneys’ fees) incurred by the Company or its Subsidiary in connection with the cooperation of the Company and its Subsidiary contemplated by this Section 6.16 (it being understood and agreed that the reimbursement set forth in this Section 6.16(d) shall not apply to any fees, costs, and expenses incurred by, or on behalf of, the Company, its Subsidiary or any of its Representatives in connection with its ordinary course financial reporting requirements or in the provision of data that, in each case, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding this Section 6.16). (e) The Parent shall indemnify, defend and hold harmless the Company Entities and their respective Representatives from and against any and all losses, damages, claims, interest, awards, judgments, penalties, costs and expenses suffered or incurred by any of them in connection with the Financing (including any action taken in accordance with this Section 6.16) and costs and expenses incurred in defending against the foregoing, except to the extent such losses, damages, claims, costs or expenses arise from the willful breach of this Agreement by the Company, as finally determined by a court of competent jurisdiction, or from fraud on the part of the Company.
Appears in 2 contracts
Samples: Merger Agreement (Cti Biopharma Corp), Merger Agreement (Cti Biopharma Corp)
Financing Cooperation. (a) Subject to Section 6.16(b)6.11(a) and the remaining provisions of this Section 6.12, prior to Closing or termination of this Agreementthe Merger Closing, the Company shall, shall and shall cause its Subsidiaries and their respective Representatives to, use at Parent’s sole expense, reasonably cooperate with Parent in connection with Parent’s arrangement of the Debt Financing, which cooperation by the Company shall consist of, at the reasonable request of Parent, (i) furnishing Parent with the financial information regarding the Company and its Subsidiaries required by clause (ii) of paragraph (e) of Exhibit C to the Debt Commitment Letters (for the avoidance of doubt, giving effect to the last sentence of such paragraph (f)) (the “Required Financial Information”), provided, however, for the avoidance of doubt, that such information shall not include, and Parent shall be solely responsible for, 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, (ii) using reasonable best efforts to reasonably cooperate with and reasonably assist Parent, at the Parent’s request, sole cost and expense, in connection with arranging, obtaining and syndicating any Financing and causing the conditions in the Financing Documents and any commitment letters entered into in connection with such Financing cause its senior officers to be satisfiedavailable, including using during normal business hours and upon reasonable best efforts advance notice, to participate in (i) assisting witha reasonable number of meetings, and furnishing information for the purposes of, the preparation of customary prospectuses (including any pro forma financial information and any information required under Article 18(2) of Commission Delegated Regulation (EU) 2019/980), offering documents, syndication documents and materials, including bank information memoranda and private placement memoranda, lender and investor presentations, road shows, due diligence sessions and sessions with rating agency materials and presentations and other customary marketing materials agencies in connection with the Financing Debt Financing, (all such iii) using reasonable best efforts, upon Parent’s prior written request, to furnish Parent at least five (5) Business Days prior to the Merger Closing with reasonable documents and materials, collectively, or other information relating to the “Marketing Documents”) (it being understood and agreed that the Marketing Documents shall include (Company or otherwise be subject to) any customary exculpation language, as the case may be, its Subsidiaries required by bank regulatory authorities with respect to the Company, its Affiliates and their respective Representatives), (ii) furnishing to the Parent as promptly as reasonably practicable financial statements and operational information (including consolidated financial statements for interim periods up until the Closing Date) that can be prepared without undue burden with respect to the Company and its Subsidiary as is reasonably requested by Parent (the “Required Information”), (iii) assisting in the preparation of schedules to collateral agreements by providing information of the Company Entities required to be made available on such schedules for purposes of the arrangement or consummation of the Financing, (iv) subject to any contractual agreement in effect, facilitating the pledging of collateral for the Financing, which shall not be required to be delivered or effective until at or promptly following the Effective Time, (v) subject to any contractual agreement in effect, obtaining the Payoff Letter, and the related lien releases, and instruments of termination or discharge, as applicable, required pursuant to Section 6.12, in each case which shall provide that, if sufficient funds are received by the financing sources under the Credit Agreement in order to pay off in full all obligations (other than the Excluded Obligations) in connection therewith or secured thereby, such release, termination and/or discharge shall be effective, and (vi) furnishing Parent as promptly as reasonably practical (and at least three (3) business days prior to the Closing Date) with all documentation and other information related to the Company and its Subsidiary required by regulatory authorities Debt Financing under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT ActU.S.A. Patriot Act of 2011, that has been reasonably requested (iv) using commercially reasonable efforts to assist Parent in writing by Parent or its Financing Sources at least ten (10) business days prior to obtaining accountants’ comfort letters from the Closing Date. The Company hereby consents to Company’s independent accountants on customary terms and consistent with the use of its and its Subsidiary’s logos accountants’ customary practice in connection with the Financing so long as such logos are used solely Debt Financing, (iv) in a manner using reasonable best efforts to furnish Parent, quarterly financial and operating data relating to the Company and its Subsidiaries’ assets and operations that is not intended reasonably requested by Parent, (vi) using reasonable best efforts to or that is not obtain attorney audit response letters reasonably likely requested by Parent and customary for financings similar to harm or disparage the Debt Financing, (vii) providing requested authorization letters to the Financing Sources (including with respect to absence of material non-public information about the Company and its Subsidiaries and their securities in the public-side version of the documents distributed to prospective lenders), (viii) assisting with the preparation of appropriate and customary materials for rating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses and similar documents customarily required in connection with debt financings, (ix) using commercially reasonable efforts to provide any customary payoff or its Subsidiary or the reputation or goodwill similar letters in connection with any debt facilities of the Company or its Subsidiary and (ii) solely Subsidiaries or Affiliates being terminated in connection with a description the consummation of the transactions contemplated hereby and (x) agreeing to enter into such agreements and to use its commercially reasonable efforts to deliver such officer’s certificates, as are customary in financings of such type and otherwise grant liens on, the assets of the Company or any of its Subsidiaries pursuant to such agreements as may be reasonably requested; provided, however, that no obligation of the Company or any of its Subsidiaries under any such agreement, pledge or grant shall be effective until the Effective Time. Parent shall provide the Company and its counsel with a reasonable opportunity to review and comment upon any private placement memoranda or similar documents, or any materials for rating agencies, that include information about the Company or any of its Subsidiaries prepared in connection with the Debt Financing, and Parent shall include in such memoranda, documents and other materials, comments reasonably proposed by the Company. Following Parent’s request, its business the Company will update the Required Financial Information so that such Required Financial Information remains in compliance with GAAP (except in the case of the unaudited statements, as permitted by Form 10-Q or other rules or regulations of the SEC) and products does not contain any untrue statement of material fact or omit to state any material fact necessary in order to make the Merger.
(b) statements contained therein not misleading. Notwithstanding anything to the requirements of Section 6.16(a) or anything contrary contained in this Agreement to the contraryAgreement, (i) neither the Company nor any of its Affiliates or their respective Representatives Subsidiaries shall be required to enter into(A) pay any commitment or other similar fee, approve or perform (B) incur any liability of any kind (or commit cause their respective Representatives to enter into, approve or performincur any liability of any kind) any certificate, document, agreement, or instrument, in each case which will be effective prior to the Effective Time, (iiC) nothing herein shall require cooperation contemplated thereby to the extent it would interfere unreasonably with the business enter into any binding agreement or operations of the Company or any of its Affiliates or their respective Affiliates, (iii) none of the Company nor any of its Affiliates or their respective Representatives, will be required to (1) pay or commit to pay any commitment or other fee, (2) reimburse or incur any costs or expenses or incur any other liability (including any guarantee, indemnity or pledge) in connection with the Debt Financing or the Marketing Documents prior to the Effective Time, (3) provide any financial data other than the Required Information, or (4) provide any legal opinion or reliance letters or any certificate (in the case of the Company or its Subsidiary Alternative Financing) that would be required to be delivered prior to the Effective Time), comfort letter or opinion of any of its Representatives, (iv) nothing herein will involve any binding commitment by the Company, any of its Affiliates or any of their respective Representatives which commitment is not conditioned on the occurrence of the Effective Time and does not terminate without liability to the Company, Company or any of its Affiliates and their respective Representatives Subsidiaries upon the termination of this Agreement, and or (vD) nothing herein will require the Company, any of its Affiliates or any of their respective Representatives to provide any information or take any action, action that would (I) unreasonably interfere with the disclosure or taking of which would violate applicable Legal Requirements, any fiduciary duty, any Contract or obligation of confidentiality owing to a third party, or jeopardize the protection ongoing operations of the attorney-client privilege Company and its Subsidiaries, (II) cause any representation or similar protectionswarranty in this Agreement to be breached, (III) held by cause any director, officer or employee of the Company or any of its Affiliates; provided thatSubsidiaries to incur any personal liability, if (IV) conflict with the Company does not provide Charter, the Bylaws (or cause its Representatives to provide such access or such information in reliance on the foregoing, then the Company shall (1) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate (at the request similar organizational documents of Parent) to provide the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1) any Representative of the Company or its Subsidiary to deliver any certificate or opinion or take any other action under this Section 6.16 that could reasonably be expected to result in personal liability to such Representative; (2Subsidiaries of the Company) the Board of Directors (or any committee or subcommittee thereofLaws, (V) or the board of directors, managers, managing member or any similar controlling body of any Subsidiary of the Company to approve (or otherwise take any corporate or similar action with respect to) any financing (including the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) the Company and its Subsidiary to take any action that would conflict with or violate its organizational or governance documents or any applicable Legal Requirements, or result in the contravention of, or that could reasonably be expected to result in a violation of or breach of, or a default under, any agreement contract to which the Company or any of its Subsidiary Subsidiaries is a party, (VI) provide access to or disclose information that the Company determines would jeopardize any attorney-client privilege of the Company or any of its Subsidiaries, (VII) prepare separate financial statements for any Subsidiary of the Company or change any fiscal period, or (VIII) authorize any corporate action prior to the Effective Time.
(cb) Subject to Parent shall promptly reimburse the Company for any applicable Legal Requirements, all nonreasonable and documented out-public or other confidential information provided of-pocket expenses and costs (including reasonable attorneys’ fees) incurred by the Company, its Subsidiary Subsidiaries and their respective Representatives in connection with any cooperation contemplated by this Section 6.12. The Company, its Affiliates and their respective Representatives (collectively, the “6.12 Indemnitees”) shall be indemnified and held harmless by Parent for and against any and all liabilities, losses, damages, claims, costs, expenses (including advancing attorneys’ fees and expenses in advance of the final disposition of any claim, suit, proceeding or investigation), interest, awards, judgments and penalties suffered or incurred, directly or indirectly, by the 6.12 Indemnitees in connection with the arrangement of the Debt Financing (or any Alternative Financing), any refinancing of indebtedness contemplated by this Agreement and/or any information utilized in connection therewith or the Company’s cooperation with respect thereto. This Section 6.12(b) shall survive the consummation of the Merger and the Effective Time and any termination of this Agreement, and is intended to benefit, and may be enforced by, the 6.12 Indemnitees and their respective heirs, executors, estates, personal representatives, successors and assigns, and shall be binding on all successors and assigns of Parent. All nonpublic or other confidential information regarding the Company or any of its Subsidiaries obtained by Parent, Merger Sub or their respective Representatives pursuant to this Agreement will Section 6.12 shall be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Purchaser will be permitted to disclose such information to any Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties .
(c) The Company hereby consents to the Financing use of its and to any underwriters, initial purchasers or placement agents its Subsidiaries logos in connection with the Financing Debt Financing; provided, however, that, such logos are used solely in a manner that is reasonable and customary for such purposes that does not suggest that the Company or any of its Subsidiaries has any responsibility for the documents or materials in which such logos are used (and, in each case, or the contents thereof) and that is not intended to or reasonably likely to harm or disparage the Company or any of its Subsidiaries or the reputation or goodwill of the Company or any of its Subsidiaries or any of their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; products, services, offerings or (ii) are subject to other confidentiality undertakings reasonably satisfactory to the Company and of which the Company is a beneficiaryIntellectual Property Rights.
(d) If Notwithstanding anything to the Closing contrary contained in this Agreement, the condition set forth in Section 7.2(b), as it applies to the Company’s obligations under this Section 6.12, shall be deemed satisfied if (i) the Company’s breach(es), if any, of its obligations under this Section 6.12 did not cause the failure of the Debt Financing to be obtained or (ii) Parent does not occur, promptly upon request have the right to terminate this Agreement pursuant to Section 8.1(d)(i) as a result of any breaches of this Section 6.12 by the Company, Parent will reimburse the Company for any documented and reasonable out-of-pocket costs and expenses (including attorneys’ fees) incurred by the Company or its Subsidiary in connection with the cooperation of the Company and its Subsidiary contemplated by this Section 6.16 (it being understood and agreed that the reimbursement set forth in this Section 6.16(d) shall not apply to any fees, costs, and expenses incurred by, or on behalf of, the Company, its Subsidiary or any of its Representatives in connection with its ordinary course financial reporting requirements or in the provision of data that, in each case, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding this Section 6.16).
(e) The Parent shall indemnify, defend and hold harmless the Company Entities and their respective Representatives from and against any and all losses, damages, claims, interest, awards, judgments, penalties, costs and expenses suffered or incurred by any of them in connection with the Financing (including any action taken in accordance with this Section 6.16) and costs and expenses incurred in defending against the foregoing, except to the extent such losses, damages, claims, costs or expenses arise from the willful breach of this Agreement by the Company, as finally determined by a court of competent jurisdiction, or from fraud on the part of the Company.
Appears in 2 contracts
Samples: Merger Agreement (SHFL Entertainment Inc.), Merger Agreement (Bally Technologies, Inc.)
Financing Cooperation. (a) Subject to Section 6.16(b), prior to Closing or termination of this Agreement, the The Company shall, and shall cause its Subsidiaries to, and their respective shall use its reasonable efforts to cause its Representatives to, use in each case at Parent’s sole expense and subject to the limitations set forth in Section 5.7(b), provide to Parent and Merger Sub with reasonable best efforts cooperation requested by Parent and Merger Sub that is reasonably necessary in connection with the potential financing pursuant to the Financing Commitment, including reasonably cooperate with and reasonably assist Parent, at the promptly following Parent’s request, sole cost furnishing Parent and expense, in connection its potential providers of financing with arranging, obtaining and syndicating any Financing and causing the conditions in the Financing Documents and any commitment letters entered into in connection with such Financing to be satisfied, including using reasonable best efforts in (i) assisting with, and furnishing information for the purposes of, the preparation of customary prospectuses (including any pro forma financial information and any information required under Article 18(2) of Commission Delegated Regulation (EU) 2019/980), offering documents, syndication documents and materials, including bank information memoranda and private placement memoranda, lender and investor presentations, rating agency materials and presentations and other customary marketing materials information reasonably required in connection with the Financing (all such documents and materials, collectively, the “Marketing Documents”) (it being understood and agreed that the Marketing Documents shall include (or otherwise be subject to) any customary exculpation language, as the case may be, with respect potential financing pursuant to the Company, its Affiliates and their respective Representatives), (ii) furnishing Financing Commitments that is available to the Parent as promptly as reasonably practicable financial statements and operational information (including consolidated financial statements for interim periods up until the Closing Date) that can be prepared without undue burden with respect to or readily obtainable by the Company and its Subsidiary as is reasonably requested by Parent (opening bank accounts in commercial banks that are providers of the “Required Information”)financing pursuant to the Financing Commitments and the deposit cash amounts therein; provided that nothing herein shall require the Company to execute any documents, (iii) assisting in certificates, mortgages or instruments pursuant to the preparation Finanicing Commitments that are not reasonable and customary to transactions similar to the transactions contemplated under this Agreement and/or that shall become effective prior to the Effective Time and provided further that the potential providers of schedules to collateral agreements by providing information such financing shall confirm that they shall have no claims against the directors and officers of the Company Entities required to be made available on such schedules for purposes of the arrangement or consummation of the Financing, (iv) subject to any contractual agreement in effect, facilitating the pledging of collateral for the Financing, which shall not be required to be delivered or effective until at or promptly following the Effective Time, (v) subject to any contractual agreement in effect, obtaining the Payoff Letter, and the related lien releases, and instruments of termination or discharge, as applicable, required pursuant to Section 6.12, in each case which shall provide that, if sufficient funds are received by the financing sources under the Credit Agreement in order to pay off in full all obligations (other than the Excluded Obligations) in connection therewith or secured thereby, such release, termination and/or discharge shall be effective, and (vi) furnishing Parent as promptly as reasonably practical (and at least three (3) business days office prior to the Closing Date) Effective Time in connection with all documentation and other information related to the Company and its Subsidiary required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, that has been reasonably requested in writing by Parent any acts or its Financing Sources at least ten (10) business days prior to the Closing Date. The Company hereby consents to the use of its and its Subsidiary’s logos omissions in connection with the provision of financing pursuant to the Financing so long as such logos are used solely (i) in a manner that is not intended to or that is not reasonably likely to harm or disparage the Company or its Subsidiary or the reputation or goodwill of the Company or its Subsidiary and (ii) solely in connection with a description of the Company, its business and products or the MergerCommitments.
(b) Notwithstanding the requirements of Section 6.16(a) or anything in this Agreement to the contrary5.7(a), (i) neither the Company nor any of its Affiliates or their respective Representatives shall be required to enter into, approve or perform (or commit to enter into, approve or perform) any certificate, document, agreement, or instrument, in each case which will be effective prior to the Effective Time, (ii) nothing herein shall require cooperation contemplated thereby to the extent it would interfere unreasonably with the business or operations of the Company or any of its Affiliates or their respective AffiliatesSubsidiaries, (iiiii) none of neither the Company nor any of its Affiliates or their respective Representatives, will Subsidiaries shall be required to (1) pay or commit to pay any commitment fee or other fee, (2) reimburse fee or any payment whatsoever or to incur any costs or expenses or incur any other liability (including any guarantee, indemnity or pledge) in connection whatsoever with respect to the Financing or the Marketing Documents financing prior to the Effective Time, and (3) provide any financial data other than the Required Information, or (4) provide any legal opinion or reliance letters or any certificate (in the case of the Company or its Subsidiary that would be required to be delivered prior to the Effective Time), comfort letter or opinion of any of its Representatives, (iviii) nothing herein will involve any binding commitment by the Companyshall require cooperation or assistance from a Company director, any of its Affiliates officer or any of their respective Representatives which commitment is not conditioned on the Effective Time and does not terminate without liability to the Company, its Affiliates and their respective Representatives upon the termination of this Agreement, and (v) nothing herein will require the Company, any of its Affiliates or any of their respective Representatives to provide any information or take any action, the disclosure or taking of which would violate applicable Legal Requirements, any fiduciary duty, any Contract or obligation of confidentiality owing to a third party, or jeopardize the protection of the attorney-client privilege (or similar protections) held by the Company or any of its Affiliates; provided that, if the Company does not provide or cause its Representatives to provide such access or such information in reliance on the foregoing, then the Company shall (1) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1) any Representative of the Company or its Subsidiary to deliver any certificate or opinion or take any other action under this Section 6.16 that could reasonably be expected to result in personal liability to such Representative; (2) the Board of Directors (or any committee or subcommittee thereof) or the board of directors, managers, managing member or any similar controlling body of any Subsidiary of the Company to approve (or otherwise take any corporate or similar action with respect to) any financing (including the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) the Company and its Subsidiary to take any action that would conflict with or violate its organizational or governance documents or any applicable Legal Requirements, or result in the contravention of, or that could reasonably be expected to result in a violation of breach of, or default under, any agreement to which the Company or its Subsidiary is a party.
(c) Subject to any applicable Legal Requirements, all non-public or other confidential information provided by the Company, its Subsidiary or any of their respective Representatives pursuant to this Agreement will be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Purchaser will be permitted to disclose such information to any Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties to the Financing and to any underwriters, initial purchasers or placement agents in connection with the Financing (and, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; or (ii) are subject to other confidentiality undertakings reasonably satisfactory to the Company and of which the Company is a beneficiary.
(d) If the Closing does not occur, promptly upon request by the Company, Parent will reimburse the Company for any documented and reasonable out-of-pocket costs and expenses (including attorneys’ fees) incurred by the Company or its Subsidiary in connection with the cooperation of the Company and its Subsidiary contemplated by this Section 6.16 (it being understood and agreed that the reimbursement set forth in this Section 6.16(d) shall not apply to any fees, costs, and expenses incurred by, or on behalf of, the Company, its Subsidiary or any of its Representatives in connection with its ordinary course financial reporting requirements or in the provision of data that, in each case, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding this Section 6.16).
(e) The Parent shall indemnify, defend and hold harmless the Company Entities and their respective Representatives from and against any and all losses, damages, claims, interest, awards, judgments, penalties, costs and expenses suffered or incurred by any of them in connection with the Financing (including any action taken in accordance with this Section 6.16) and costs and expenses incurred in defending against the foregoing, except employee to the extent such lossesCompany director, damages, claims, costs officer or expenses arise from the willful breach of this Agreement employee may incur any personal financial liability by providing such cooperation or assistance that will not be immediately repaid or reimbursed in full by the Company, as finally determined by a court of competent jurisdiction, or from fraud on the part of the CompanyParent.
Appears in 2 contracts
Samples: Merger Agreement (Lumenis LTD), Merger Agreement (Lumenis LTD)
Financing Cooperation. (a) Subject to Section 6.16(b), prior to Closing or termination of this Agreement, the The Company shall, shall (and shall cause its Subsidiaries to) provide to Parent, and their respective Representatives to, shall use commercially reasonable best efforts to reasonably cooperate with cause representatives of the Company and reasonably assist its Subsidiaries to provide to Parent, at the Parent’s requeston a timely basis, sole cost and expense, in connection with arranging, obtaining and syndicating any Financing and causing the conditions in the Financing Documents and any commitment letters entered into in connection with such Financing to be satisfied, including using reasonable best efforts in (i) assisting with, and furnishing information for the purposes of, the preparation of customary prospectuses (including any pro forma financial information and any information required under Article 18(2) of Commission Delegated Regulation (EU) 2019/980), offering documents, syndication documents and materials, including bank information memoranda and private placement memoranda, lender and investor presentations, rating agency materials and presentations and other customary marketing materials all cooperation reasonably requested by Parent in connection with the Financing arrangement by Parent or Merger Sub of any debt financing (all provided that such documents requested cooperation does not unreasonably interfere with the ongoing business or operations of the Company or create a risk of damage or destruction to any property or assets of the Company) prior to the Closing Date (including the marketing efforts in connection therewith) and materialsthe payments contemplated by Section 3.3(a) as may be reasonably requested by Parent, collectivelyincluding by (i) furnishing Parent and its financing sources as promptly as reasonably practicable with such financial and other pertinent information regarding the Company and its Subsidiaries as may be reasonably requested by Parent (provided, the “Marketing Documents”) (it being understood and agreed that the Marketing Documents Company shall include (not be required to prepare any financial statements or otherwise be subject to) deliver any customary exculpation language, as other financial information not prepared by the case may be, with respect to Company or its Subsidiaries in the Company, its Affiliates and their respective RepresentativesOrdinary Course of Business), (ii) furnishing to assisting with the Parent as promptly as reasonably practicable financial statements preparation of materials for rating agency presentations, offering documents, offering circulars documents, offering circulars or private placement memoranda, bank information memoranda, prospectuses and operational information (including consolidated financial statements for interim periods up until the Closing Date) that can be prepared without undue burden similar documents required in connection with respect to the Company and its Subsidiary as is reasonably requested any debt financing by Parent (the “Required Information”)Parent, (iii) assisting in subject to confidentiality agreements reasonably acceptable to the preparation Company, using commercially reasonable efforts to permit Parent’s financing sources to conduct customary due diligence and evaluate the Company’s current assets, equipment, cash management and accounting system, policies and procedures relating thereto for the purpose of schedules to establishing collateral agreements by providing information arrangements as of the Company Entities required Closing (including providing sufficient access to be made available on allow such schedules for purposes of the arrangement lenders (or consummation of the Financingtheir agents or representatives) to conduct field examinations and appraisals; provided, that Section 7.1 shall apply mutatis mutandis), (iv) subject to any contractual agreement in effect, facilitating the pledging of collateral for the Financing, which shall not be required to be delivered or effective until at or promptly following the Effective Time, (v) subject to any contractual agreement in effect, obtaining the Payoff Letter, furnishing Parent and the related lien releases, and instruments of termination or discharge, as applicable, required pursuant to Section 6.12, in each case which shall provide that, if sufficient funds are received by the Parent’s financing sources under the Credit Agreement in order to pay off in full all obligations (other than the Excluded Obligations) in connection therewith or secured thereby, such release, termination and/or discharge shall be effective, and (vi) furnishing Parent as promptly as reasonably practical (and at least three (3) business days prior to the Closing Date) with all documentation and other information related to the Company and its Subsidiary required by regulatory authorities any Governmental Body with respect to any debt financing under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, that has been reasonably and in any event at least three (3) days prior to the Closing to the extent requested in writing by Parent or its Financing Sources at least ten (10) business days prior to the Closing, (v) arranging for customary pay off, discharge and termination at the Closing Dateof 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, (vi) facilitating the execution and delivery at the Closing of definitive documents related to any debt financing, including the pledging of collateral and providing guarantees to Parent’s financing sources at the Closing and (vii) assisting Parent in the satisfaction of conditions precedent or satisfaction of other obligations set forth in any debt financing to the extent the satisfaction of such conditions or obligations requires the cooperation of or is within the control of the Company or its Subsidiaries. The Company hereby consents to the use of its the logos of the Company and its Subsidiary’s logos Subsidiaries in connection with the Financing so long as syndication or marketing of any debt financing, provided that such logos are not used solely (i) in a manner that is not intended to or that is not would reasonably likely be expected to harm or disparage the Company or its Subsidiary or the reputation or goodwill of the Company or its Subsidiary and (ii) solely in connection with a description of the Company, its business and products Subsidiaries or the Mergertheir marks.
(b) Notwithstanding anything to the requirements of Section 6.16(a) or anything contrary in this Agreement to the contrarySection 7.14, (i) neither the Company nor any of its Affiliates or their respective Representatives Subsidiaries shall be required to enter into, approve undertake any obligation or perform execute any agreement (or commit to enter into, approve or performother than authorization letters in connection with syndication efforts) any certificate, document, agreement, or instrument, in each case which will that would be effective prior to the Effective Time, (ii) nothing herein shall require cooperation contemplated thereby to the extent it would interfere unreasonably with the business board of directors (or operations similar governing body) of the Company or any of its Affiliates or their respective AffiliatesSubsidiaries shall not be required to approve any financing, (iii) none of neither the Company nor any of its Affiliates or their respective Representatives, will Subsidiaries shall be required to (1) pay or commit to pay any commitment or other fee, (2) reimburse or incur any costs or expenses or incur any other liability (including any guarantee, indemnity or pledge) in connection with the Financing or the Marketing Documents prior to the Effective Time, (3) provide any financial data other than the Required Information, or (4) provide any legal opinion or reliance letters or any certificate (in the case of the Company or its Subsidiary that would be required to be delivered prior to the Effective Time), comfort letter or opinion of any of its Representatives, (iv) nothing herein will involve any binding commitment by the Company, any of its Affiliates or any of their respective Representatives which commitment is not conditioned on the Effective Time and does not terminate without liability to the Company, its Affiliates and their respective Representatives upon the termination of this Agreement, and (v) nothing herein will require the Company, any of its Affiliates or any of their respective Representatives to provide any information or take any action, the disclosure or taking of which would violate applicable Legal Requirements, any fiduciary duty, any Contract or obligation of confidentiality owing to a third party, or jeopardize the protection of the attorney-client privilege (or similar protections) held by the Company or any of its Affiliates; provided that, if the Company does not provide or cause its Representatives to provide such access or such information in reliance on the foregoing, then the Company shall (1) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1) any Representative of the Company or its Subsidiary to deliver any certificate or opinion or take any other action under this Section 6.16 that could reasonably be expected to result in personal liability to such Representative; (2) the Board of Directors (or any committee or subcommittee thereof) or the board of directors, managers, managing member or any similar controlling body of any Subsidiary of the Company to approve (or otherwise take any corporate or similar action with respect to) any financing (including the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) the Company and its Subsidiary to take any action that would will conflict with or violate its organizational or governance documents or any applicable Legal Requirements, laws or result in the contravention of, or that could reasonably be expected to would result in a violation of or breach of, or default under, any agreement to which the Company or any of its Subsidiary Subsidiaries is a party.
, (civ) Subject neither the Company nor any of its Subsidiaries shall be required to provide any information the disclosure of which is prohibited or restricted under applicable Legal Requirements, all non-public law or other confidential information provided by is legally privileged and (v) no officer or representative of the Company, its Subsidiary Company or any of its Subsidiaries shall be required to deliver any certificate or take any other action that could reasonably be expected to result in personal liability to such officer or representative. Except to the extent contemplated hereunder, Parent acknowledges and agrees that the Company and its Affiliates and their respective Representatives pursuant representatives shall not have any responsibility for (or, with respect to this Agreement will be kept confidential the Company and its Subsidiaries, prior to the Closing), incur any liability to any person under or in accordance with connection with, the Confidentiality Agreement, except arrangement of any debt financing that Parent and Purchaser will be permitted to disclose such information to any Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties to the Financing and to any underwriters, initial purchasers or placement agents raise in connection with the Financing transactions contemplated by this Agreement. Parent shall (andx) promptly, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; or (ii) are subject to other confidentiality undertakings reasonably satisfactory to the Company and of which the Company is a beneficiary.
(d) If the Closing does not occur, promptly upon request by the Company, Parent will reimburse the Company for any documented and all reasonable out-of-pocket costs and expenses (including reasonable and documented attorneys’ fees) incurred by the Company or any of its Subsidiary Subsidiaries in connection with the cooperation of the Company and its Subsidiary Subsidiaries contemplated by this Section 6.16 7.14 and (it being understood y) indemnify and agreed that the reimbursement set forth in this Section 6.16(d) shall not apply to any fees, costs, and expenses incurred by, or on behalf of, hold harmless the Company, its Subsidiary or any of its Representatives in connection with its ordinary course financial reporting requirements or in the provision of data that, in each case, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding this Section 6.16).
(e) The Parent shall indemnify, defend and hold harmless the Company Entities Subsidiaries and their respective Representatives representatives from and against any and all damages, losses, damagescharges, liabilities, claims, interestdemands, awardsactions, suits, Proceedings, payments, judgments, penaltiessettlements, assessments, deficiencies, taxes, interest, penalties and costs and expenses suffered or incurred by any of them in connection with the Financing arrangement of any debt financing (including any action taken in accordance with this Section 6.16) and costs and expenses incurred in defending against the foregoing, except other than to the extent such lossesarising from willful misconduct, damagesfraud, claims, costs intentional misrepresentation or expenses arise from the willful breach of this Agreement information provided by the Company, as finally determined by Company or its Subsidiaries in connection with the debt financing). Parent acknowledges and agrees that obtaining any such debt financing (and any availability under Parent’s existing credit facilities) is not a court of competent jurisdiction, or from fraud on condition to the part of the CompanyClosing.
Appears in 2 contracts
Samples: Merger Agreement (BakerCorp International, Inc.), Merger Agreement (United Rentals North America Inc)
Financing Cooperation. (a) Subject to Section 6.16(b), prior to Closing or termination of this Agreement, the Company The Seller shall, and shall cause its Subsidiaries and their respective Representatives the Company to, provide and use reasonable best efforts to reasonably cooperate with cause its and reasonably assist Parentthe Company’s respective Representatives, including their legal and accounting advisors, to provide, at the sole expense of Parent’s request, sole cost and expense, all cooperation reasonably requested by Parent in connection with arranging, obtaining and syndicating any Financing and causing the conditions in the Financing Documents and any commitment letters entered into in connection with such Financing working capital (or equivalent) debt facilities to be satisfiedobtained, arranged or committed to on or prior to the Closing Date that is to be made available to the Company from and after the Closing Date, if any (any such debt facility, the “Debt Financing”), including using reasonable best efforts in respect of the following:
(i) assisting with, executing and furnishing information for delivering as of (but not before) the purposes of, the preparation of customary prospectuses (including Closing any pro forma financial information pledge and any information required under Article 18(2) of Commission Delegated Regulation (EU) 2019/980), offering security documents, syndication other definitive financing documents, or other certificates, customary legal opinions from local counsel or documents and materials, including bank information memoranda and private placement memoranda, lender and investor presentations, rating agency materials and presentations and other customary marketing materials in connection with the Financing (all such documents and materials, collectively, the “Marketing Documents”) (it being understood and agreed that the Marketing Documents shall include (or otherwise as may be subject to) any customary exculpation language, as the case may be, with respect to the Company, its Affiliates and their respective Representatives), (ii) furnishing to the Parent as promptly as reasonably practicable financial statements and operational information (including consolidated financial statements for interim periods up until the Closing Date) that can be prepared without undue burden with respect to the Company and its Subsidiary as is reasonably requested by Parent (including a certificate of the “Required Information”), (iii) assisting in the preparation of schedules to collateral agreements by providing information chief financial officer of the Company Entities required with respect to be made available on such schedules for purposes the solvency of the arrangement or consummation Company on a consolidated basis (without giving effect to the identity of the Financing, (ivParent and Buyer)) subject to any contractual agreement in effect, and otherwise facilitating the pledging of collateral collateral, if any;
(ii) assisting Parent to obtain waivers, consents, estoppels and approvals from other parties to material leases, encumbrances and contracts relating to the Company;
(iii) taking all reasonable actions necessary to (A) permit the Debt Financing sources to evaluate the Company’s current assets, cash management and accounting systems, policies and procedures relating thereto for the Financing, which shall not be required purposes of establishing collateral arrangements as of the Closing and to be delivered or effective until at or promptly following assist with other collateral audits and due diligence examinations and (B) establish bank and other accounts and blocked account agreements and lock box arrangements to the Effective Time, (v) subject to any contractual agreement in effect, obtaining the Payoff Letter, and the related lien releases, and instruments of termination or discharge, as applicable, required pursuant to Section 6.12, in each case which shall provide that, if sufficient funds are received by the financing sources under the Credit Agreement in order to pay off in full all obligations (other than the Excluded Obligations) extent necessary in connection therewith or secured thereby, such release, termination and/or discharge shall be effective, and with the Debt Financing; and
(viiv) furnishing Parent as promptly as reasonably practical (and at least three (3) business days prior to the Closing Date) with providing all documentation and other information related to the Company and its Subsidiary as is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, regulations including the USA PATRIOT Act, that has been Act to the extent reasonably requested in writing by Parent or its the Debt Financing Sources at least ten (10) business days prior to the Closing Date. The Company hereby consents to the use of its and its Subsidiary’s logos in connection with the Financing so long as such logos are used solely (i) in a manner that is not intended to or that is not reasonably likely to harm or disparage the Company or its Subsidiary or the reputation or goodwill of the Company or its Subsidiary and (ii) solely in connection with a description of the Companysources; provided, its business and products or the Merger.
(b) Notwithstanding the requirements of Section 6.16(a) or anything in this Agreement to the contrarythat, (i) neither none of the Seller or Company nor any of its Affiliates or their respective Representatives shall be required to enter into, approve (A) pay any commitment or perform (other similar fee or commit to enter into, approve or perform) make any certificate, document, agreement, or instrument, other payment in each case which will be effective connection with the Debt Financing prior to the Effective TimeClosing that is not simultaneously reimbursed by Parent or (B) take any action that will conflict with or violate the Company’s organizational documents, (ii) nothing herein shall require such cooperation contemplated thereby to the extent it would would, in the good faith determination of the Company, interfere unreasonably with the business or operations of the Company or any of its Affiliates or their respective AffiliatesCompany, (iii) none of the Company shall not be required to commit to take any action in connection with the Debt Financing that is not contingent upon the Closing (including the entry into any agreement) and (iv) neither the Company nor any of its Affiliates officers, directors or their respective Representatives, will managing members shall be required to (1) pay take any action or commit to pay provide any commitment or other fee, (2) reimburse or incur any costs or expenses or incur any other liability (including any guarantee, indemnity or pledge) approval in connection with respect of the Debt Financing or the Marketing Documents prior to the Effective Time, Closing (3) provide any financial data other than the Required Information, or (4) provide any legal opinion or reliance letters or any certificate (in the case of the Company or its Subsidiary that would be required those actions contemplated to be delivered taken prior to the Effective TimeClosing pursuant to this Section 4.11), comfort letter . Nothing contained in this Section 4.11 or opinion of any of its Representatives, (iv) nothing herein will involve any binding commitment by the Company, any of its Affiliates or any of their respective Representatives which commitment is not conditioned on the Effective Time and does not terminate without liability to the Company, its Affiliates and their respective Representatives upon the termination of this Agreement, and (v) nothing herein will otherwise shall require the Company, any of its Affiliates prior to the Closing, to be an issuer or any of their respective Representatives to provide any information or take any action, the disclosure or taking of which would violate applicable Legal Requirements, any fiduciary duty, any Contract or obligation of confidentiality owing to a third party, or jeopardize the protection of the attorney-client privilege (or similar protections) held by the Company or any of its Affiliates; provided that, if the Company does not provide or cause its Representatives to provide such access or such information in reliance on the foregoing, then the Company shall (1) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1) any Representative of the Company or its Subsidiary to deliver any certificate or opinion or take any other action under this Section 6.16 that could reasonably be expected to result in personal liability to such Representative; (2) the Board of Directors (or any committee or subcommittee thereof) or the board of directors, managers, managing member or any similar controlling body of any Subsidiary of the Company to approve (or otherwise take any corporate or similar action obligor with respect to) any financing (including the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) the Company and its Subsidiary to take any action that would conflict with or violate its organizational or governance documents or any applicable Legal Requirements, or result in the contravention of, or that could reasonably be expected to result in a violation of breach of, or default under, any agreement to which the Company or its Subsidiary is a party.
(c) Subject to any applicable Legal Requirements, all non-public or other confidential information provided by the Company, its Subsidiary or any of their respective Representatives pursuant to this Agreement will be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Purchaser will be permitted to disclose such information to any Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties to the Financing and to any underwriters, initial purchasers or placement agents in connection with the Financing (and, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; or (ii) are subject to other confidentiality undertakings reasonably satisfactory to the Company and of which the Company is a beneficiary.
(d) If the Closing does not occurDebt Financing. Parent shall, promptly upon request by the Company, Parent will reimburse the Company Seller for any documented and all reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred by the Seller or the Company or its Subsidiary their respective Representatives in connection with the cooperation of the Company and its Subsidiary contemplated by this Section 6.16 (it being understood 4.11 and agreed that the reimbursement set forth in this Section 6.16(d) shall not apply to any fees, costs, and expenses incurred by, or on behalf of, the Company, its Subsidiary or any of its Representatives in connection with its ordinary course financial reporting requirements or in the provision of data that, in each case, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding this Section 6.16).
(e) The Parent shall indemnify, defend indemnify and hold harmless the Seller and the Company Entities and their respective Representatives from and against any and all losses, liabilities, damages, claims, costs, expenses (including reasonable attorneys’ fees), interest, awards, judgments, penalties, costs judgments and expenses penalties suffered or incurred by any of them in connection with the Financing (including arrangement of the Debt Financing, any action taken in accordance with by them at the request of Parent pursuant to this Section 6.16) 4.11 and costs and expenses incurred any information utilized in defending against connection therewith (other than information provided in writing by the foregoingSeller or the Company in connection with the Debt Financing), in each case, except to the extent such lossessuffered or incurred as a result of the bad faith, damages, claims, costs gross negligence or expenses arise from the willful breach of this Agreement misconduct by the Company, as finally determined by a court of competent jurisdiction, Seller or from fraud on Company or their respective Representatives.
(b) The Seller hereby consents to the part reasonable use of the Company’s logos in connection with the Debt Financing; provided that such logos are used solely in a manner that does not violate any contractual obligation of the Company and is not intended or reasonably likely to harm, disparage or otherwise adversely affect the Company.
(c) Parent may reasonably request the cooperation of the Seller and the Company under this Section 4.11 at any time, and from time to time and on multiple occasions, between the date hereof and the Closing to effect the Debt Financing.
(d) Parent acknowledges and agrees that the obtaining of any Debt Financing is not a condition to Closing and reaffirms its obligation to consummate the transactions contemplated by this Agreement irrespective and independently of the availability of any Debt Financing, subject to the satisfaction or waiver of the conditions set forth in Article V.
(e) All non-public or otherwise confidential information regarding the Company obtained by Parent or its Representatives pursuant to this Section 4.11 shall be kept confidential in accordance with the Confidentiality Agreement.
Appears in 2 contracts
Samples: Membership Interest Purchase Agreement (Sun Country Airlines Holdings, Inc.), Membership Interest Purchase Agreement (Sun Country Airlines Holdings, Inc.)
Financing Cooperation. (a) Subject Prior to Section 6.16(b), prior to Closing or termination of this Agreementthe Effective Time, the Company Partnership Entities shall, and shall cause its their respective Subsidiaries and their respective Representatives to, use reasonable best efforts to reasonably cooperate with and reasonably assist Parent, at the Parent’s request, sole cost and expense, provide all cooperation that is reasonably necessary, proper or advisable in connection with arrangingany financing by Parent or any of its Subsidiaries in connection with the Transactions as may be reasonably requested by Parent or its Representatives. Without limiting the generality of the foregoing, obtaining the Partnership Entities shall, and syndicating any Financing shall cause their respective Subsidiaries and causing use commercially reasonable efforts to cause their respective Representatives to, (i) furnish, as promptly as practicable, the conditions report of the Partnership’s auditor on the most recently available audited consolidated financial statements of the Partnership and its Subsidiaries and use its commercially reasonable efforts to obtain the consent of such auditor to the use of such report in accordance with normal custom and practice, and use commercially reasonable efforts to cause such auditor to provide customary comfort letters (providing “negative assurance” comfort) and drafts thereof to the Financing Documents and any commitment letters entered into underwriters, administrative agent, lenders, initial purchasers or placement agents, as applicable, in connection with such Financing financing by Parent; (ii) use commercially reasonable efforts to furnish, as promptly as practicable, financial statements and other financial data of the Partnership as would be satisfied, including using required by Regulation S-X and Regulation S-K promulgated under the Securities Act for a registered public offering to consummate any offering(s) of securities contemplated by such financing; (iii) provide reasonable best efforts and customary assistance in (i) assisting with, and furnishing information for the purposes of, the preparation of customary prospectuses one or more confidential information memoranda, prospectuses, offering memoranda, private placement memoranda and other marketing and syndication materials (including any pro forma financial information the provision of authorization letters and any information required under Article 18(2a representation with respect to the presence or absence of material non-public information) of Commission Delegated Regulation (EU) 2019/980), offering documents, syndication documents and materialsreasonably requested by Parent, including bank information memoranda by making available, at reasonable times and private placement memorandaon reasonable advance notice, employees and advisors of the Partnership Entities; (iv) in a reasonable number of meetings, lender and investor presentations, rating agency materials due diligence sessions, drafting sessions and presentations road shows, in each case, upon reasonable advance notice and other customary marketing materials at mutually agreed times; (v) assisting Parent in connection with the Financing preparation and registration of (all such documents and materials, collectively, the “Marketing Documents”) (it being understood and agreed that the Marketing Documents shall include (or otherwise be subject tobut not executing) any customary exculpation languagepledge and security documents, currency or interest hedging arrangements, other definitive financing documents, or documents as the case may be, with respect to the Company, its Affiliates and their respective Representatives), (ii) furnishing to the Parent as promptly as reasonably practicable financial statements and operational information (including consolidated financial statements for interim periods up until the Closing Date) that can be prepared without undue burden with respect to the Company and its Subsidiary as is reasonably requested by Parent (or the “Required Information”), (iii) assisting in the preparation of schedules to collateral agreements by providing information of the Company Entities required to be made available on such schedules for purposes of the arrangement Financing Sources or consummation of the Financing, (iv) subject to any contractual agreement in effect, otherwise reasonably facilitating the pledging of collateral for in connection with the Financing, which shall financing of the Transactions (provided that such documents will not be required to be delivered or effective take effect until at or promptly following the Effective Time, (v) subject to any contractual agreement in effect, obtaining the Payoff Letter, and the related lien releases, and instruments of termination or discharge, as applicable, required pursuant to Section 6.12, in each case which shall provide that, if sufficient funds are received by the financing sources under the Credit Agreement in order to pay off in full all obligations (other than the Excluded Obligations) in connection therewith or secured thereby, such release, termination and/or discharge shall be effective, and ); (vi) furnishing Parent as promptly as reasonably practical using commercially reasonable efforts to ensure that any syndication efforts benefit from existing lending and investment banking relationships; and (and at least three (3vii) business days prior to the Closing Date) with providing all customary documentation and other information related to about the Company Partnership, the Partnership GP and its Subsidiary their respective Subsidiaries requested by Parent or the Financing Sources in connection with the financing of the Transactions and required by regulatory authorities under applicable “know your customer” sanctions and anti-money money-laundering rules and regulations, including the PATRIOT Act, ; provided that has been reasonably requested in writing by Parent or its Financing Sources at least ten (10x) business days prior to the Closing Date. The Company hereby consents to the use of its and its Subsidiary’s logos in connection with the Financing so long as such logos are used solely (i) in a manner that is not intended to or that is not reasonably likely to harm or disparage the Company or its Subsidiary or the reputation or goodwill none of the Company Partnership or its Subsidiary and (ii) solely in connection with a description of the Company, its business and products or the Merger.
(b) Notwithstanding the requirements of Section 6.16(a) or anything in this Agreement to the contrary, (i) neither the Company nor any of its Affiliates or their respective Representatives Subsidiaries shall be required to enter into, approve pay any commitment or perform (other fee or commit incur any other liability or obligation in connection with such financing or to enter into, approve take any action that would be prohibited by any applicable Law or perform) any certificate, document, agreementcause a default of, or instrumentbreach under, or otherwise violate any Partnership Material Agreement, in each case which will except for any payment, incurrence or action that is conditioned upon, and shall not take effect until, the Effective Time, (y) no obligations of the Partnership or any of its Subsidiaries under any certificate, opinion, contract, indenture or other document or instrument delivered pursuant to this Section 7.15 shall be effective until the Effective Time, and none of the Partnership or any of its Subsidiaries shall be required to take any action pursuant to this Section 7.15 under any certificate, opinion, contract, indenture or other document or instrument that is not contingent upon the Closing or that would be effective prior to the Effective Time, Time and (iiz) nothing herein none of the Partnership or its senior officers shall require cooperation contemplated thereby be required to the extent it engage in any action that would interfere unreasonably with the business or operations of the Company or any of its Affiliates or their respective Affiliates, (iii) none of the Company nor any of its Affiliates or their respective Representatives, will be required to (1) pay or commit to pay any commitment or other fee, (2) reimburse or incur any costs or expenses or incur any other liability (including any guarantee, indemnity or pledge) in connection with the Financing or the Marketing Documents prior to the Effective Time, (3) provide any financial data other than the Required Information, or (4) provide any legal opinion or reliance letters or any certificate (in the case of the Company or its Subsidiary that would be required to be delivered prior to the Effective Time), comfort letter or opinion of any of its Representatives, (iv) nothing herein will involve any binding commitment by the Company, any of its Affiliates or any of their respective Representatives which commitment is not conditioned on the Effective Time and does not terminate without liability to the Company, its Affiliates and their respective Representatives upon the termination of this Agreement, and (v) nothing herein will require the Company, any of its Affiliates or any of their respective Representatives to provide any information or take any action, the disclosure or taking of which would violate applicable Legal Requirements, any fiduciary duty, any Contract or obligation of confidentiality owing to a third party, or jeopardize the protection of the attorney-client privilege (or similar protections) held by the Company or any of its Affiliates; provided that, if the Company does not provide or cause its Representatives to provide such access or such information in reliance on the foregoing, then the Company shall (1) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1) any Representative of the Company or its Subsidiary to deliver any certificate or opinion or take any other action under this Section 6.16 that could reasonably be expected to result in personal liability to such Representative; (2) the Board of Directors (or any committee or subcommittee thereof) or the board of directors, managers, managing member or any similar controlling body of any Subsidiary of the Company to approve (or otherwise take any corporate or similar action with respect to) any financing (including the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) the Company Partnership and its Subsidiary to take any action that would conflict with or violate its organizational or governance documents or any applicable Legal Requirements, or result in the contravention of, or that could reasonably be expected to result in a violation of breach of, or default under, any agreement to which the Company or its Subsidiary is a party.
(c) Subject to any applicable Legal Requirements, all non-public or other confidential information provided by the Company, its Subsidiary or any of their respective Representatives pursuant to this Agreement will be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Purchaser will be permitted to disclose such information to any Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties to the Financing and to any underwriters, initial purchasers or placement agents in connection with the Financing (and, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; or (ii) are subject to other confidentiality undertakings reasonably satisfactory to the Company and of which the Company is a beneficiary.
(d) If the Closing does not occur, promptly upon request by the Company, Parent will reimburse the Company for any documented and reasonable out-of-pocket costs and expenses (including attorneys’ fees) incurred by the Company or its Subsidiary in connection with the cooperation of the Company and its Subsidiary contemplated by this Section 6.16 (it being understood and agreed that the reimbursement set forth in this Section 6.16(d) shall not apply to any fees, costs, and expenses incurred by, or on behalf of, the Company, its Subsidiary or any of its Representatives in connection with its ordinary course financial reporting requirements or in the provision of data that, in each case, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding this Section 6.16).
(e) The Subsidiaries. Parent shall indemnify, defend indemnify and hold harmless the Company Entities Partnership and its Subsidiaries, Partnership GP and their respective Representatives from and against any and all losses, damages, claims, interest, awards, judgments, penalties, costs and expenses losses or damages suffered or incurred by any of them in connection with the Financing arrangement of any financing by Parent or any of its Subsidiaries in connection with the Transactions and any information utilized in connection therewith except (including any action taken in accordance A) with this Section 6.16respect to information supplied by the Partnership, its Subsidiaries and Representatives specifically for inclusion or incorporation by reference therein and/or (B) and costs and expenses incurred in defending against the foregoing, except to the extent such losses, damages, claims, costs or expenses losses and damages arise from the willful breach of this Agreement by the Company, as finally determined by a court of competent jurisdiction, or from fraud on the part misconduct of the CompanyPartnership’s or any of its Subsidiaries’ Representatives.
Appears in 2 contracts
Samples: Purchase Agreement, Purchase Agreement (LRR Energy, L.P.)
Financing Cooperation. (a) Subject to Section 6.16(b), prior to Closing or termination of this Agreement, the The Company shall, shall and shall cause the Subsidiaries of the Company to, at Parent’s sole expense, use its Subsidiaries and their respective Representatives to, use reasonable best efforts to reasonably cooperate with and reasonably assist Parent, at the Parent’s request, sole cost and expense, provide such cooperation in connection with arranging, obtaining and syndicating the Financing as may be reasonably requested by Parent as is necessary and customary in connection with the arrangement of financings similar to the Financing; provided that such requested cooperation is consistent with Applicable Law and does not unreasonably interfere with the ongoing operations of the Company or any Subsidiary of the Company. Such cooperation by the Company and the Subsidiaries of the Company shall include, in each case at the reasonable request of Parent:
(i) preparing and furnishing Parent and the Financing and causing Sources, not later than a time reasonably sufficient to allow Parent to satisfy the conditions in the Financing Documents Debt Commitment Letters, all Required Information and any commitment letters entered into all other financial and other pertinent information and disclosures regarding the Company and the Subsidiaries as may be reasonably requested by Parent for use in connection with such the Financing,
(ii) causing the Company’s senior officers to participate in a reasonable number of lender meetings, rating agency presentations and due diligence meetings at reasonable times and upon reasonable advance notice,
(iii) assisting Parent and the Financing Sources in the preparation of Debt Marketing Documents (and any supplements thereto) solely with respect to be satisfiedinformation relating to the Company and the Subsidiaries,
(iv) reasonably cooperating with the marketing efforts of Parent and the Financing Sources in connection with the Financing, including using reasonable best efforts direct contact between such management of the Company and potential lenders in the Financing,
(iv) reasonably cooperating with Parent’s legal counsel in connection with customary legal opinions required in connection with the Financing,
(vi) reasonably assisting withParent in obtaining any corporate credit and family ratings from any ratings agencies contemplated by the Debt Commitment Letters, including assisting Parent and furnishing information for the purposes of, Financing Sources in the preparation of customary prospectuses (including any pro forma financial information and any information required under Article 18(2) of Commission Delegated Regulation (EU) 2019/980), offering documents, syndication documents and materials, including bank information memoranda and private placement memoranda, lender and investor presentations, materials for rating agency materials and presentations and other customary marketing materials in connection with the Financing (all such documents and materials, collectively, the “Marketing Documents”) (it being understood and agreed that the Marketing Documents shall include (or otherwise be subject to) any customary exculpation language, as the case may be, solely with respect to the Company, its Affiliates and their respective Representatives), (ii) furnishing to the Parent as promptly as reasonably practicable financial statements and operational information (including consolidated financial statements for interim periods up until the Closing Date) that can be prepared without undue burden with respect relating to the Company and its Subsidiary as is the Subsidiaries,
(vii) reasonably requested by Parent (the “Required Information”), (iii) assisting in the preparation of schedules to of, and executing and delivering, definitive Financing Agreements and other customary financing documents, including guarantee and collateral agreements documents and other certificates and documents as may be reasonably requested by providing information of the Company Entities required to be made available on such schedules for purposes of the arrangement or consummation of the Financing, Parent,
(ivviii) subject to any contractual agreement in effect, facilitating the pledging of collateral for the FinancingFinancing (including delivery of original stock certificates and original stock powers of the Subsidiaries to the extent required on the Closing Date in connection with the Financing and to the extent available to the Company),
(ix) using reasonable best efforts to assist the Financing Sources in benefiting from the existing lending relationships of the Company,
(x) taking all ministerial company actions, which shall not be required subject to be delivered or and only effective until at or promptly following upon the occurrence of the Effective Time, reasonably requested by Parent to permit the consummation of the Financing,
(vxi) subject to any contractual agreement in effect, obtaining the Payoff Letter, and the related lien releases, and instruments of termination or discharge, as applicable, required pursuant to Section 6.12, in each case which shall provide that, if sufficient funds are received by the financing sources under the Credit Agreement in order to pay off in full all obligations (other than the Excluded Obligations) in connection therewith or secured thereby, such release, termination and/or discharge shall be effective, and (vi) furnishing Parent as promptly as reasonably practical (and at least three (3) business days Business Days prior to the Closing Date) with , providing all documentation and other information related to about the Company and its Subsidiary required the Subsidiaries as is reasonably requested in writing by regulatory authorities under Parent at least ten Business Days prior to the Closing in connection with the Financing that relates to applicable “know your customer” and anti-money laundering rules and regulations, regulations including without limitation the USA PATRIOT Act, that has been reasonably requested in writing by Parent or its Financing Sources at least ten and
(10xii) business days prior using reasonable best efforts to obtain customary payoff letters and lien terminations, if applicable, to the Closing Date. The Company hereby consents extent necessary to allow for the use payoff, discharge and termination of its and its Subsidiary’s logos in connection with the Financing so long as such logos are used solely (i) in a manner that is not intended to or that is not reasonably likely to harm or disparage the Credit Agreement, dated as of February 24, 2014, between the Company or its Subsidiary or and the reputation or goodwill of the Company or its Subsidiary financial institutions listed therein as lenders, JPMorgan Chase Bank, N.A. as administrative agent and collateral agent and X.X. Xxxxxx Securities LLC as lead arranger and sole bookrunner, as amended to date and (ii) solely in connection with a description the Credit Agreement, dated as of February 24, 2014, between the CompanyCompany and JPMorgan Chase Bank, its business and products or the Merger.
(b) N.A. as lender, as amended to date. Notwithstanding the requirements of Section 6.16(a) or anything in this Agreement to the contrary, (iA) neither the Company nor any Subsidiary of its Affiliates or their respective Representatives the Company shall be required to enter into, approve or perform (or commit to enter into, approve or perform) any certificate, document, agreement, or instrument, in each case which will be effective prior to the Effective Time, (ii) nothing herein shall require cooperation contemplated thereby to the extent it would interfere unreasonably with the business or operations of the Company or any of its Affiliates or their respective Affiliates, (iii) none of the Company nor any of its Affiliates or their respective Representatives, will be required to (1) pay or commit to pay any commitment or other fee, (2) reimburse similar fee or incur enter into any costs binding agreement or expenses commitment or incur any other actual or potential liability (including any guarantee, indemnity or pledge) obligation in connection with the Financing (or the Marketing Documents prior any alternative financing) that is not subject to the Effective Timeoccurrence of the Closing, (3B) provide any financial data other than the Required Informationno director, manager, officer or (4) provide any legal opinion or reliance letters or any certificate (in the case employee of the Company or its any Subsidiary that would be required to be delivered prior to the Effective Time), comfort letter or opinion of any of its Representatives, (iv) nothing herein will involve any binding commitment by the Company, any of its Affiliates or any of their respective Representatives which commitment is not conditioned on the Effective Time and does not terminate without liability to the Company, its Affiliates and their respective Representatives upon the termination of this Agreement, and (v) nothing herein will require the Company, any of its Affiliates or any of their respective Representatives to provide any information or take any action, the disclosure or taking of which would violate applicable Legal Requirements, any fiduciary duty, any Contract or obligation of confidentiality owing to a third party, or jeopardize the protection of the attorney-client privilege (or similar protections) held by the Company or any of its Affiliates; provided that, if the Company does not provide or cause its Representatives to provide such access or such information in reliance on the foregoing, then the Company shall (1) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1) any Representative of the Company or its Subsidiary be required to deliver any certificate or opinion or take any other action under pursuant to this Section 6.16 that could 6.15(a) to the extent any such action would reasonably be expected to result in personal liability to such Representative; director, manager, officer or employee, (2C) none of the Board Company, any of Directors the Subsidiaries of the Company or any of their respective directors or officers shall be obligated to adopt resolutions or execute consents to approve or authorize the execution of the Financing (or any committee alternative financing), provided that this clause (C) shall not prohibit the adoption or subcommittee thereof) execution of any resolutions or consents effective no earlier than the board Closing Date by any persons that shall remain or will become officers or directors of directors, managers, managing member the Company or any similar controlling body of the Subsidiaries of the Company as of the Effective Time, and (D) neither the Company nor any Subsidiary of the Company to approve (or otherwise take any corporate or similar action with respect to) any financing (including the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) the Company and its Subsidiary shall be required to take any action that would reasonably be expected, in the reasonable judgment of the Company, to conflict with or violate its organizational or governance documents or any applicable Legal Requirementswith, or result in the contravention of, any violation or that could reasonably be expected to result in a violation of breach of, or default underany Applicable Law, any agreement to which contract or obligations of confidentiality (not created in contemplation hereof) binding on the Company or its Subsidiary is a party.
(c) Subject to any applicable Legal Requirements, all non-public or other confidential information provided by the Subsidiaries of the Company, its Subsidiary or any of their respective Representatives pursuant to this Agreement will be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Purchaser will be permitted to disclose such information to any Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties . The Company hereby consents to the Financing use of the Company’s and to any underwriters, initial purchasers or placement agents the Subsidiaries’ logos in connection with the Financing (andin an form and manner mutually agreed in advance with the Company; provided, however, that such logos are used solely in each casean manner that is not intended, or reasonably likely, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; harm, disparage or (ii) are subject to other confidentiality undertakings reasonably satisfactory to otherwise adversely affect the Company and or the reputation or goodwill of which the Company is a beneficiaryCompany.
(db) If the Closing does not occurParent shall, promptly upon request by the Company, Parent will reimburse the Company for any all documented and reasonable out-of-pocket costs and expenses (including attorneys’ fees) incurred by the Company or its Subsidiary in connection with Company, the cooperation Subsidiaries of the Company and its Subsidiary contemplated by this Section 6.16 (it being understood and agreed that the reimbursement set forth in this Section 6.16(d) shall not apply to any fees, costs, and expenses incurred by, or on behalf of, the Company, its Subsidiary or any of its their respective Representatives in connection with its ordinary course financial reporting requirements or in the provision of data that, in each case, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding this their respective obligations pursuant to Section 6.166.15(a).
(e) The . Parent shall indemnify, defend indemnify and hold harmless the Company, the Subsidiaries of the Company Entities and their respective Representatives Representatives, from and against any and all claims, losses, liabilities, damages, claims, interest, awards, judgments, penaltiesinquiries, fines and reasonable fees, costs and expenses expenses, including attorneys’ fees and disbursements suffered or incurred by any of them in connection with the Financing or any Alternative Financing and any information supplied or provided in connection therewith (including any action taken in accordance with this Section 6.16) and costs and expenses incurred in defending against the foregoing, except to the extent such lossessuffered or incurred as a result of (i) the gross negligence, damages, claims, costs willful misconduct or expenses arise from the willful material breach of this Agreement by the Company, any Subsidiary or any Representative thereof, in each case as finally determined by a court of competent jurisdiction, or from fraud on (ii) any inaccuracy (other than any immaterial inaccuracy) in the part historical financial information provided to Parent by the Company pursuant to clause (a) in the definition of the Company“Required Information”).
Appears in 2 contracts
Samples: Merger Agreement (IntraLinks Holdings, Inc.), Merger Agreement (Synchronoss Technologies Inc)
Financing Cooperation. (a) Subject The Company shall provide to Section 6.16(b), prior to Closing or termination of this Agreement, the Company shallParent, and shall cause the respective officers and employees of the Company, and use its Subsidiaries and their respective Representatives to, use commercially reasonable best efforts to reasonably cooperate with and reasonably assist cause the Representatives of the Company to provide to Parent, at the Parent’s request, sole cost and expense, in connection with arranging, obtaining and syndicating any Financing and causing the conditions in the Financing Documents and any commitment letters entered into in connection with such Financing to be satisfied, including using reasonable best efforts in (i) assisting with, and furnishing information for the purposes of, the preparation of customary prospectuses (including any pro forma financial information and any information required under Article 18(2) of Commission Delegated Regulation (EU) 2019/980), offering documents, syndication documents and materials, including bank information memoranda and private placement memoranda, lender and investor presentations, rating agency materials and presentations and other customary marketing materials in connection with the Financing (all such documents and materials, collectively, the “Marketing Documents”) (it being understood and agreed that the Marketing Documents shall include (or otherwise be subject to) any customary exculpation language, as the case may be, with respect to the Company, its Affiliates and their respective Representatives), (ii) furnishing to the Parent as promptly as reasonably practicable financial statements and operational information (including consolidated financial statements for interim periods up until the Closing Date) that can be prepared without undue burden with respect to the Company and its Subsidiary as is cooperation reasonably requested by Parent (the “Required Information”), (iii) assisting in the preparation of schedules to collateral agreements by providing information of the Company Entities that is necessary or reasonably required to be made available on such schedules for purposes of the arrangement or consummation of the Financing, (iv) subject to any contractual agreement in effect, facilitating the pledging of collateral for the Financing, which shall not be required to be delivered or effective until at or promptly following the Effective Time, (v) subject to any contractual agreement in effect, obtaining the Payoff Letter, and the related lien releases, and instruments of termination or discharge, as applicable, required pursuant to Section 6.12, in each case which shall provide that, if sufficient funds are received by the financing sources under the Credit Agreement in order to pay off in full all obligations (other than the Excluded Obligations) in connection therewith with any third party debt financing transaction or secured therebyunderwritten public offering of Parent Common Stock for cash that Parent may pursue prior to the Closing Date, such release, termination and/or discharge shall be effective, and including the following: (via) furnishing Parent as promptly as reasonably practical (and at least three (3) business days prior to the Closing Date) practicable upon request by Parent with all documentation financial statements, financial data and other information related to regarding the Company and its Subsidiary Subsidiaries of the type that would be required by regulatory authorities Regulation S-X and Regulation S-K promulgated under applicable the Securities Act for a public offering of securities of Parent (including for use in Parent’s preparation of pro forma financial statements); and (b) requesting the Company’s independent accountants to prepare and deliver “know your customercomfort letters,” and anti-money laundering rules and regulations, including dated the PATRIOT Act, that has been reasonably requested in writing by Parent or its Financing Sources at least ten (10) business days prior to the Closing Date. The Company hereby consents to the use date of its and its Subsidiary’s logos each final offering document used in connection with any securities offering by Parent (with appropriate bring-down comfort letters delivered on the Financing so long as closing date of any such logos are used solely (i) in a manner that is not intended to or that is not reasonably likely to harm or disparage the Company or its Subsidiary or the reputation or goodwill of the Company or its Subsidiary and (ii) solely in connection with a description of the Company, its business and products or the Merger.
(b) Notwithstanding the requirements of Section 6.16(a) or anything in this Agreement to the contrary, (i) neither the Company nor any of its Affiliates or their respective Representatives shall be required to enter into, approve or perform (or commit to enter into, approve or perform) any certificate, document, agreement, or instrumentoffering), in each compliance with professional standards (including providing “negative assurance” comfort and Statement on Auditing Standards No. 100 review of interim financial statements) and otherwise on terms reasonably acceptable to Parent, as the case which will be effective prior to the Effective Timemay be; provided, (ii) nothing herein shall require cooperation contemplated thereby to the extent it would interfere unreasonably with the business or operations however, that none of the Company or any of its Affiliates or their respective Affiliates, (iii) none of the Company nor any of its Affiliates or their respective Representatives, will Subsidiaries shall be required to (1) pay or commit to pay any commitment or other fee, (2) reimburse fee or incur any costs or expenses or incur any other liability (including any guarantee, indemnity or pledge) in connection with the Financing any such financing, and no personal liability shall be imposed on any officers, directors or the Marketing Documents prior to the Effective Time, (3) provide any financial data other than the Required Information, or (4) provide any legal opinion or reliance letters or any certificate (in the case Representatives of the Company or its Subsidiary that would be required to be delivered prior to the Effective Time)Company. Parent shall promptly, comfort letter or opinion of any of its Representatives, (iv) nothing herein will involve any binding commitment by the Company, any of its Affiliates or any of their respective Representatives which commitment is not conditioned on the Effective Time and does not terminate without liability to the Company, its Affiliates and their respective Representatives upon the termination of this Agreement, and (v) nothing herein will require the Company, any of its Affiliates or any of their respective Representatives to provide any information or take any action, the disclosure or taking of which would violate applicable Legal Requirements, any fiduciary duty, any Contract or obligation of confidentiality owing to a third party, or jeopardize the protection of the attorney-client privilege (or similar protections) held by the Company or any of its Affiliates; provided that, if the Company does not provide or cause its Representatives to provide such access or such information in reliance on the foregoing, then the Company shall (1) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1) any Representative of the Company or its Subsidiary to deliver any certificate or opinion or take any other action under this Section 6.16 that could reasonably be expected to result in personal liability to such Representative; (2) the Board of Directors (or any committee or subcommittee thereof) or the board of directors, managers, managing member or any similar controlling body of any Subsidiary of the Company to approve (or otherwise take any corporate or similar action with respect to) any financing (including the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) the Company and its Subsidiary to take any action that would conflict with or violate its organizational or governance documents or any applicable Legal Requirements, or result in the contravention of, or that could reasonably be expected to result in a violation of breach of, or default under, any agreement to which the Company or its Subsidiary is a party.
(c) Subject to any applicable Legal Requirements, all non-public or other confidential information provided by the Company, its Subsidiary or any of their respective Representatives pursuant to this Agreement will be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Purchaser will be permitted to disclose such information to any Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties to the Financing and to any underwriters, initial purchasers or placement agents in connection with the Financing (and, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; or (ii) are subject to other confidentiality undertakings reasonably satisfactory to the Company and of which the Company is a beneficiary.
(d) If the Closing does not occur, promptly upon request by the Company, Parent will reimburse the Company for any all reasonable and documented and reasonable out-of-pocket costs and expenses paid to third parties (including attorneys’ feesadvisor’s fees and expenses) incurred by the Company or its Subsidiary in connection with the cooperation of provided in connection with the Company foregoing and its Subsidiary contemplated by this Section 6.16 (it being understood ii) indemnify and agreed that the reimbursement set forth in this Section 6.16(d) shall not apply to any fees, costs, and expenses incurred by, or on behalf of, hold harmless the Company, its Subsidiary or any of its Representatives in connection with its ordinary course financial reporting requirements or in the provision of data that, in each case, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding this Section 6.16).
(e) The Parent shall indemnify, defend and hold harmless the Company Entities Subsidiaries and their respective officers, directors and other Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgmentsjudgments and penalties (collectively, penalties, costs and expenses “Losses”) suffered or incurred by any of them in connection with any such financing transaction or public offering, and any information utilized in connection therewith; provided, however, that the Financing (including foregoing indemnity shall not apply with respect to any action taken Losses resulting from a willful or intentional breach of any representation, warranty, covenant or agreement of the Company or any Company Subsidiaries under this Agreement. All non-public or otherwise confidential information regarding the Company and Company Subsidiaries obtained by Parent, its Affiliates or their Representatives pursuant to this Section 6.14 shall be kept confidential in accordance with this Section 6.16) and costs and expenses incurred in defending against the foregoing, except to the extent such losses, damages, claims, costs or expenses arise from the willful breach of this Agreement by the Company, as finally determined by a court of competent jurisdiction, or from fraud on the part terms of the CompanyParent Confidentiality Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Parkway Properties Inc), Merger Agreement (Thomas Properties Group Inc)
Financing Cooperation. (a) Subject Prior to Section 6.16(b), prior to Closing or termination of this Agreementthe Effective Time, the Company shall, and shall cause its Subsidiaries and their respective Representatives to, provide such reasonable cooperation in connection with any financing by Parent or any of its Subsidiaries in connection with the Transactions as may be reasonably requested by Parent, Merger Sub or their Representatives. Without limiting the generality of the foregoing, the Company shall, and shall cause its Subsidiaries and their respective Representatives to, upon request (i) furnish the report of the Company’s auditor on the most recently available audited consolidated financial statements of the Company and its Subsidiaries and use its reasonable best efforts to obtain the consent of such auditor to the use of such report in accordance with normal custom and practice and use reasonable best efforts to reasonably cooperate with and reasonably assist Parentcause such auditor to provide customary comfort letters to the underwriters, at the Parent’s requestinitial purchasers or placement agents, sole cost and expenseas applicable, in connection with arrangingany such financing; (ii) furnish any additional financial statements, obtaining schedules or other financial data relating to the Company and syndicating its Subsidiaries reasonably requested by Parent as may be reasonably necessary to consummate any Financing and causing the conditions in the Financing Documents and any commitment letters entered into in connection with such Financing to be satisfiedfinancing, including using reasonable best efforts in (i) assisting with, and furnishing information for the purposes of, the preparation of customary prospectuses (including any pro forma financial information and any information statements required under Article 18(2) of Commission Delegated Regulation (EU) 2019/980), offering documents, syndication documents and materials, including bank information memoranda and private placement memoranda, lender and investor presentations, rating agency materials and presentations and other customary marketing materials pursuant to the Securities Act in connection with any such financing; (iii) provide direct contact between (x) senior management and advisors, including auditors, of the Financing Company and (all such y) the proposed lenders, underwriters, initial purchasers or placement agents, as applicable, and/or Parent’s auditors in connection with, the financing, at reasonable times and upon reasonable advance notice; (iv) make available the employees and advisors of the Company and its Subsidiaries to provide reasonable assistance with Parent’s preparation of business projections, financing documents and offer materials, collectively, ; (v) obtain the “Marketing Documents”) (it being understood cooperation and agreed that the Marketing Documents shall include (or otherwise be subject to) any customary exculpation language, as the case may be, with respect to the Company, its Affiliates and their respective Representatives), (ii) furnishing to the Parent as promptly as reasonably practicable financial statements and operational information (including consolidated financial statements for interim periods up until the Closing Date) that can be prepared without undue burden with respect assistance of counsel to the Company and its Subsidiary as is reasonably requested by Subsidiaries in providing customary legal opinions and other services; (vi) provide information, documents, authorization letters, opinions and certificates, enter into agreements (including supplemental indentures) and take other actions that are or may be customary in connection with the financing or necessary or desirable to permit Parent to fulfill conditions or obligations under the financing documents, provided that such agreements entered into shall be conditioned upon, and shall not take effect until, the Effective Time; (the “Required Information”), (iiivii) assisting assist in the preparation of schedules one or more confidential information memoranda, prospectuses, offering memoranda and other marketing and syndication materials reasonably requested by Parent; (viii) use commercially reasonably efforts to collateral agreements by providing information ensure that the syndication efforts benefit materially from the existing banking relationships of the Company Entities required to be made available on such schedules for purposes and its Subsidiaries, (ix) permit Parent’s reasonable use of the arrangement or consummation Company’s and its Subsidiaries’ logos for syndication and underwriting, as applicable, of financing (subject to advance review of and consultation with respect to such use), (x) participate in meetings and presentations with prospective lenders and investors, as applicable (including the participation in such meetings of the FinancingCompany’s senior management), (ivxi) subject use commercially reasonable efforts to assist in procuring any contractual agreement in effectnecessary rating agency ratings or approvals, facilitating and (xii) not commence or effect any offering, placement or arrangement of any debt securities or bank financing competing with the pledging proposed Parent financing (and not permit any such offering, placement or arrangements to occur on its behalf).
(b) The Company shall use all reasonable best efforts to (i) obtain customary payoff letters from third-party lenders and trustees with respect to the indebtedness of collateral for the Financing, which shall not be required Company and its Subsidiaries specified by Parent to the Company no later than ten Business Days prior to the Effective Time and (ii) deliver or cause to be delivered or effective until such payoff letters to Parent at or promptly following the Effective Time. At the Effective Time, (v) subject to any contractual agreement in effectParent making available necessary funds to do so, obtaining the Payoff LetterCompany shall use all reasonable best efforts to, and to cause its Subsidiaries to, permanently (x) terminate the related lien releases, and instruments of termination or discharge, as applicable, required pursuant credit facilities requested by Parent to Section 6.12, in each case which shall provide thatbe so terminated, if sufficient funds and to the extent such facilities are received specified by Parent to the financing sources under the Credit Agreement in order to pay off in full all obligations (other Company no later than the Excluded Obligations) in connection therewith or secured thereby, such release, termination and/or discharge shall be effective, and (vi) furnishing Parent as promptly as reasonably practical (and at least three (3) business days ten Business Days prior to the Closing DateEffective Time, and all related contracts to which the Company or any of its Subsidiaries is a party and (y) with all documentation and other information related cause to be released any Encumbrances on its assets relating to such terminated credit facilities.
(c) Notwithstanding anything in this Section 6.11 to the Company and contrary, in fulfilling its Subsidiary required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulationsobligations pursuant to this Section 6.11, including the PATRIOT Act, that has been reasonably requested in writing by Parent or its Financing Sources at least ten (10) business days prior to the Closing Date. The Company hereby consents to the use of its and its Subsidiary’s logos in connection with the Financing so long as such logos are used solely (i) in a manner that is not intended to or that is not reasonably likely to harm or disparage the Company or its Subsidiary or the reputation or goodwill of the Company or its Subsidiary and (ii) solely in connection with a description none of the Company, its business and products Subsidiaries or the Merger.
(b) Notwithstanding the requirements of Section 6.16(a) or anything in this Agreement to the contrary, (i) neither the Company nor any of its Affiliates or their respective Representatives shall be required to enter intopay any commitment or other fee, approve provide any security or perform (or commit to enter into, approve or perform) incur any certificate, document, agreement, or instrument, other liability in each case which will be effective connection with any financing prior to the Effective Time, (ii) nothing herein any requested cooperation shall require cooperation contemplated thereby to the extent it would not unreasonably interfere unreasonably with the business or ongoing operations of the Company or any of and its Affiliates or their respective AffiliatesSubsidiaries, and (iii) none of the Company nor any of its Affiliates or their respective Representatives, will be required to (1) pay or commit to pay any commitment or other fee, (2) reimburse or incur any costs or expenses or incur any other liability (including any guarantee, indemnity or pledge) in connection with the Financing or the Marketing Documents prior to the Effective Time, (3) provide any financial data other than the Required Information, or (4) provide any legal opinion or reliance letters or any certificate (in the case of the Company or its Subsidiary that would be required to be delivered prior to the Effective Time), comfort letter or opinion of any of its Representatives, (iv) nothing herein will involve any binding commitment by the Company, any of its Affiliates or any of their respective Representatives which commitment is not conditioned on the Effective Time and does not terminate without liability to the Company, its Affiliates and their respective Representatives upon the termination of this Agreement, and (v) nothing herein will require the Company, any of its Affiliates or any of their respective Representatives to provide any information or take any action, the disclosure or taking of which would violate applicable Legal Requirements, any fiduciary duty, any Contract or obligation of confidentiality owing to a third party, or jeopardize the protection of the attorney-client privilege (or similar protections) held by the Company or any of its Affiliates; provided that, if the Company does not provide or cause its Representatives to provide such access or such information in reliance on the foregoing, then the Company shall (1) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1) any Representative of the Company or its Subsidiary to deliver any certificate or opinion or take any other action under this Section 6.16 that could reasonably be expected to result in personal liability to such Representative; (2) the Board of Directors (or any committee or subcommittee thereof) or the board of directors, managers, managing member or any similar controlling body of any Subsidiary of the Company to approve (or otherwise take any corporate or similar action with respect to) any financing (including the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) the Company and its Subsidiary to take any action that would conflict with or violate its organizational or governance documents or any applicable Legal Requirements, or result in the contravention of, or that could reasonably be expected to result in a violation of breach of, or default under, any agreement to which the Company or its Subsidiary is a party.
(c) Subject to any applicable Legal Requirements, all non-public or other confidential information provided by the Company, its Subsidiary or any of their respective Representatives pursuant to this Agreement will be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Purchaser will be permitted to disclose such information to any Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties to the Financing and to any underwriters, initial purchasers or placement agents in connection with the Financing (and, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; or (ii) are subject to other confidentiality undertakings reasonably satisfactory to the Company and of which the Company is a beneficiary.
(d) If the Closing does not occurshall, promptly upon request by the Company, Parent will reimburse the Company for any all reasonable and documented and reasonable out-of-pocket costs and expenses (including attorneys’ fees) incurred by the Company or its Subsidiary any of the Company Subsidiaries in connection with the cooperation of the Company and its Subsidiary contemplated by this Section 6.16 (it being understood and agreed that the reimbursement set forth in this Section 6.16(d) shall not apply to any fees, costs, and expenses incurred by, or on behalf of, the Company, its Subsidiary or any of its Representatives in connection with its ordinary course financial reporting requirements or in the provision of data that, in each case, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding this Section 6.16).
(e) The such cooperation. Parent shall indemnify, defend indemnify and hold harmless the Company Entities and their respective Representatives the Company Subsidiaries from and against any and all losses, damages, claims, interest, awards, judgments, penalties, costs and expenses losses or damages actually suffered or incurred by any of them directly in connection with the Financing arrangement of any such financing (including any action taken in accordance with this Section 6.16) and costs and expenses incurred in defending against the foregoing, except other than to the extent such losses, damages, claims, costs or expenses arise from the willful breach of this Agreement related to information provided by the Company, its Subsidiaries or their respective Representatives). All non-public or otherwise confidential information regarding the Company obtained by Parent or the Parent Representatives pursuant to this Section 6.11 shall be “Information” as finally determined defined in and delivered under the Confidentiality Agreement; provided that the parties acknowledge and agree that a “Representative” for purposes of this Section 6.11 and the Confidentiality Agreement shall mean any director, officer, employee, agent, lender or other debt financing source, any underwriter, initial purchaser or placement agent in respect of debt or equity securities offerings by a court of competent jurisdictionParent or its Subsidiaries, or from fraud on the part other representative, including any accountant, attorney, financial advisor or consultant, as well as Representatives of any of the Companyforegoing.
Appears in 2 contracts
Samples: Merger Agreement (United Technologies Corp /De/), Merger Agreement (Goodrich Corp)
Financing Cooperation. (ai) Subject to Section 6.16(b), prior to Closing or termination During the period from the date of this AgreementAgreement to the Effective Time, the Company shall, and shall cause its Subsidiaries subsidiaries and its and their respective officers, directors, employees and Representatives to, cooperate in good faith to implement any necessary, appropriate or desirable arrangements in connection with the Company’s and its subsidiaries credit facilities, indentures or other documents governing or relating to indebtedness with respect to any financing matters related to the Transactions, including, without limitation, the repayment of indebtedness under, and termination of, the Company’s credit facilities upon Closing and any Debt Offers, or similar transactions in connection with the Company’s debt securities, in each case, so long as the effectiveness of such arrangements is conditioned upon the consummation of the Merger.
(ii) In furtherance of the foregoing, Parent (or a subsidiary of Parent) will be permitted, in consultation with the Company, to commence and conduct offers to purchase or exchange, and conduct consent solicitations with respect to, any or all of the outstanding series of senior notes of the Company (the “Company Notes”), the consummation or completion of which shall be conditioned upon the Closing and which offers to purchase or exchange or consent solicitations shall have such other terms and conditions, including pricing terms and amendments to the terms and provisions of the applicable indenture, as are specified, from time to time, by Parent in consultation with the Company (each, a “Debt Offer” and collectively, the “Debt Offers”) and which are permitted by the terms of such Company Notes, the applicable indentures and applicable Law, including the rules and regulations of the SEC. Parent (or a subsidiary of Parent) shall not be permitted to commence any Debt Offer unless Parent shall have provided the Company with the necessary offer to purchase, consent solicitation statement, letter of transmittal or press release, if any, in connection with the Debt Offer (collectively, the “Debt Offer Documents”) a reasonable period of time in advance of commencing the applicable Debt Offer to allow the Company and its counsel to review and comment on such Debt Offer Documents (which comments shall be considered in good faith by Parent). Subject to the receipt of the requisite holder consents, in connection with any or all of the consent solicitations, the Company shall execute a supplemental indenture to the Company’s indentures in accordance with the terms thereof amending the terms and provisions thereof as described in the applicable Debt Offer documents in a form as reasonably requested by Parent; provided that the amendments effected by such supplemental indentures shall be conditioned upon, and shall not become operative until, the Closing. In connection with any such Debt Offers, the Company shall use reasonable best efforts to reasonably cooperate (i) deliver and to cause counsel for the Company to deliver, customary legal opinions, to the extent such opinions would not conflict with Applicable Law and reasonably assist Parent, would be accurate in light of the facts and circumstances at the Parenttime delivered and (ii) cause the Company’s request, sole cost and expense, independent accountants to provide customary consents for use of their reports to the extent required in connection with arrangingany Debt Offers. The dealer manager, obtaining and syndicating any Financing and causing the conditions in the Financing Documents and any commitment letters entered into solicitation agent, information agent, depositary or other agent retained in connection with the Debt Offers will be selected by Parent after consultation with the Company and their fees and out-of-pocket expenses will be paid directly by Parent.
(iii) The Company acknowledges and agrees that it may be necessary for Parent and its subsidiaries to enter into financing transactions (including, without limitation, the raising of new financing, the refinancing of existing indebtedness, the retirement, prepayment or redemption of existing indebtedness, producing amendments, amendment and restatements, modifications, waivers or consents in relating to existing indebtedness and/or launch and consummating the Debt Offers) (any such transaction, a “Financing to be satisfiedTransaction”). In connection with any Financing Transaction, including using the Company shall, and shall cause its subsidiaries and their respective officers, directors, employees and Representatives to, cooperate and use its and their reasonable best efforts to provide such information and documentation as may be necessary or reasonably desirable in connection with the structuring, marketing and execution of any Financing Transaction, including (iA) participating in meetings and due diligence sessions and rating agency presentations in connection with the Financing Transaction and preparing materials in connection therewith, (B) assisting with, and furnishing information for the purposes of, with the preparation of customary prospectuses any portion of the disclosure in relation to the Financing Transaction that relates to the Merger or the Transactions (including any historical and pro forma financial information and any information required under Article 18(2) of Commission Delegated Regulation (EU) 2019/980operational data), offering (C) executing and delivering any pledge and security document, guarantees, indentures, other definitive financing documents, syndication and other certificates or documents and materialslegal opinions as may be reasonably requested (provided such documents will not take effect until the Effective Time) and (D) delivering, including bank information memoranda and private placement memorandaor procuring the delivery of, lender and investor presentationssuch information, rating agency materials and presentations certificates, authorization letters, comfort letters, representation letters and other customary marketing materials documents as may be necessary or desirable (including, without limitation, any investment or commercial banks appointed in connection with the Financing (all such documents and materials, collectively, the “Marketing Documents”) (it being understood and agreed that the Marketing Documents shall include (or otherwise be subject to) any customary exculpation language, as the case may be, capacity with respect to the Company, its Affiliates and their respective Representatives), (ii) furnishing to the Parent as promptly as reasonably practicable financial statements and operational information (including consolidated financial statements for interim periods up until the Closing Date) that can be prepared without undue burden with respect to the Company and its Subsidiary as is reasonably requested by Parent (the “Required Information”), (iii) assisting in the preparation of schedules to collateral agreements by providing information of the Company Entities required to be made available on such schedules for purposes of the arrangement or consummation of the Financing, (iv) subject to any contractual agreement in effect, facilitating the pledging of collateral for the Financing, which shall not be required to be delivered or effective until at or promptly following the Effective Time, (v) subject to any contractual agreement in effect, obtaining the Payoff Letter, and the related lien releases, and instruments of termination or discharge, as applicable, required pursuant to Section 6.12, in each case which shall provide that, if sufficient funds are received by the financing sources under the Credit Agreement in order to pay off in full all obligations (other than the Excluded Obligations) in connection therewith or secured thereby, such release, termination and/or discharge shall be effective, and (vi) furnishing Parent as promptly as reasonably practical (and at least three (3) business days prior to the Closing Date) with all documentation and other information related to the Company and its Subsidiary required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, that has been reasonably requested in writing by Parent or its Financing Sources at least ten (10) business days prior to the Closing Date. The Company hereby consents to the use of its and its Subsidiary’s logos in connection with the Financing so long as such logos are used solely (i) in a manner that is not intended to or that is not reasonably likely to harm or disparage the Company or its Subsidiary or the reputation or goodwill of the Company or its Subsidiary and (ii) solely in connection with a description of the Company, its business and products or the Merger.
(b) Notwithstanding the requirements of Section 6.16(a) or anything in this Agreement to the contrary, (i) neither the Company nor any of its Affiliates or their respective Representatives shall be required to enter into, approve or perform (or commit to enter into, approve or perform) any certificate, document, agreement, or instrument, in each case which will be effective prior to the Effective Time, (ii) nothing herein shall require cooperation contemplated thereby to the extent it would interfere unreasonably with the business or operations of the Company or any of its Affiliates or their respective Affiliates, (iii) none of the Company nor any of its Affiliates or their respective Representatives, will be required to (1) pay or commit to pay any commitment or other fee, (2) reimburse or incur any costs or expenses or incur any other liability (including any guarantee, indemnity or pledge) in connection with the Financing or the Marketing Documents prior to the Effective Time, (3) provide any financial data other than the Required Information, or (4) provide any legal opinion or reliance letters or any certificate (in the case of the Company or its Subsidiary that would be required to be delivered prior to the Effective Time), comfort letter or opinion of any of its Representatives, (iv) nothing herein will involve any binding commitment by the Company, any of its Affiliates or any of their respective Representatives which commitment is not conditioned on the Effective Time and does not terminate without liability to the Company, its Affiliates and their respective Representatives upon the termination of this Agreement, and (v) nothing herein will require the Company, any of its Affiliates or any of their respective Representatives to provide any information or take any action, the disclosure or taking of which would violate applicable Legal Requirements, any fiduciary duty, any Contract or obligation of confidentiality owing to a third party, or jeopardize the protection of the attorney-client privilege (or similar protections) held by the Company or any of its Affiliates; provided that, if the Company does not provide or cause its Representatives to provide such access or such information in reliance on the foregoing, then the Company shall (1) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1) any Representative of the Company or its Subsidiary to deliver any certificate or opinion or take any other action under this Section 6.16 that could reasonably be expected to result in personal liability to such Representative; (2) the Board of Directors (or any committee or subcommittee thereof) or the board of directors, managers, managing member or any similar controlling body of any Subsidiary of the Company to approve (or otherwise take any corporate or similar action with respect to) any financing (including the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) the Company and its Subsidiary to take any action that would conflict with or violate its organizational or governance documents or any applicable Legal Requirements, or result in the contravention of, or that could reasonably be expected to result in a violation of breach of, or default under, any agreement to which the Company or its Subsidiary is a party.
(c) Subject to any applicable Legal Requirements, all non-public or other confidential information provided by the Company, its Subsidiary or any of their respective Representatives pursuant to this Agreement will be kept confidential in accordance with the Confidentiality Agreement, except that Transaction). Parent and Purchaser will be permitted to disclose such information to any Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties to the Financing and to any underwriters, initial purchasers or placement agents in connection with the Financing (and, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; or (ii) are subject to other confidentiality undertakings reasonably satisfactory to the Company and of which the Company is a beneficiary.
(d) If the Closing does not occurshall, promptly upon request by the Company, Parent will reimburse the Company for any documented and all reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees, but excluding the costs of the Company’s preparation of its annual and quarterly financial statements and any amount in respect of such costs and expenses for which the Company (or, if relevant, any member of a group for VAT purposes of which it is a member) is entitled to credit as input tax) incurred by the Company or its Subsidiary subsidiaries or their respective representatives in connection with this Section 5.1(d) (including such Financing Transaction).
(iv) Notwithstanding anything to the cooperation contrary in this Section 5.1(d), the Company shall not be required to (x) enter into any Financing Transaction prior to the Effective Time that is not conditioned upon the consummation of the Merger or (y) disclose any information pursuant to this Section 5.1(d) to the extent that (A) in the reasonable good faith judgment of the Company, any Applicable Law requires the Company or its subsidiaries to restrict or prohibit access to any such information, (B) in the reasonable good faith judgment of the Company, the information is subject to confidentiality obligations to a third party or (C) disclosure of any such information or document would result in the loss of attorney-client privilege; provided, further, that with respect to clauses (A) through (C) of this Section 5.1(d)(iv), the Company shall use its commercially reasonable efforts to (1) obtain the required consent of any third party necessary to provide such disclosure, (2) develop an alternative to providing such information so as to address such matters that is reasonably acceptable to the Company and its Subsidiary contemplated by this Section 6.16 Parent and (it being understood 3) utilize the procedures of a joint defense agreement or implement such other techniques if the parties determine that doing so would reasonably permit the disclosure of such information without violating Applicable Law or jeopardizing such privilege.
(v) Parent shall indemnify and agreed that the reimbursement set forth in this Section 6.16(d) shall not apply to any fees, costs, and expenses incurred by, or on behalf of, hold harmless the Company, its Subsidiary or any of its Representatives in connection with its ordinary course financial reporting requirements or in the provision of data that, in each case, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding this Section 6.16).
(e) The Parent shall indemnify, defend and hold harmless the Company Entities subsidiaries and their respective officers, directors, employees and Representatives from and against any and all losses, damages, claims, interest, awards, judgments, penalties, costs and or expenses suffered or incurred by any of them of any type (other than to the extent resulting from information provided to Parent in writing by the Company or its subsidiaries) in connection with the Financing (including any action taken in accordance with Company’s obligations under this Section 6.16) and costs and expenses incurred in defending against the foregoing5.1(d), except to in the extent event that such lossesloss, damagesdamage, claimsclaim, costs cost or expenses arise expense arises out of or results from the gross negligence, willful breach of this Agreement misconduct or bad faith by the Company, as finally determined by a court of competent jurisdiction, Company or from fraud on the part of the Companyits subsidiaries in fulfilling their obligations pursuant to this Section 5.1(d).
Appears in 2 contracts
Samples: Merger Agreement (IHS Markit Ltd.), Merger Agreement (S&P Global Inc.)
Financing Cooperation. (a) Subject to Section 6.16(b), prior to Closing or termination of this Agreement, the The Company shall, and shall cause its Subsidiaries subsidiaries, and shall use its reasonable efforts to cause its and their respective Representatives to, use its and their respective reasonable best efforts to provide such customary cooperation as may be reasonably cooperate with and reasonably assist Parent, at the Parent’s request, sole cost and expense, requested by Parent or Merger Sub or their respective Affiliates in connection with arranging, obtaining and syndicating any Financing and causing the conditions in the Financing Documents made, or to be made, by Parent or any of its subsidiaries and any commitment letters entered into in connection with such SEC filing related to the Financing to be satisfiedmade by Parent, including using reasonable best efforts in by: (i) assisting withusing reasonable efforts to, and furnishing information for the purposes ofupon reasonable advance written notice, the preparation of customary prospectuses (including any pro forma financial information and any information required under Article 18(2) of Commission Delegated Regulation (EU) 2019/980), offering documents, syndication documents and materialsprovide reasonable contact, including bank information memoranda with respect to customary due diligence, among the Company’s and private placement memorandaits subsidiaries’ senior management and appropriate senior management, lender representatives, advisors and investor presentations, rating agency materials and presentations the Financing Sources; (ii) providing such customary historical financial and other customary marketing materials in connection with the Financing (all such documents and materials, collectively, the “Marketing Documents”) (it being understood and agreed that the Marketing Documents shall include (or otherwise be subject to) any customary exculpation language, as the case may be, with respect to the Company, its Affiliates and their respective Representatives), (ii) furnishing to the Parent as promptly as reasonably practicable financial statements and operational pertinent information (including consolidated financial statements for interim periods up until the Closing Date) that can be prepared without undue burden with respect to the Company and its Subsidiary subsidiaries (including, in any event, the Required Financial Information) as is may be reasonably requested or reasonably required by Parent (for use in connection with the “Required Information”)Financing and designating, (iii) assisting in the preparation of schedules to collateral agreements by providing upon request, whether any such information of the Company Entities required is suitable to be made available on to lenders and other investors who do not wish to receive material non-public information with respect to the Company and its subsidiaries or their respective securities; (iii) providing information regarding the Company and its subsidiaries reasonably necessary or customarily required to assist Parent in preparing pro forma financial statements if Parent reasonably determines such schedules for purposes of pro forma financial statements are necessary, required or customary in connection with the arrangement Financing or consummation of any other SEC filing related to the FinancingFinancing to be made by Parent (it being understood that the Company need only reasonably assist in the preparation thereof, (iv) subject to any contractual agreement in effect, facilitating the pledging of collateral for the Financing, which but shall not be required to independently prepare any separate pro forma financial statements and shall not be delivered required to change its fiscal year); (iv) using commercially reasonable efforts to cause Ernst & Young LLP to provide reasonable and customary assistance to Parent, including by participating in accounting due diligence sessions, obtaining the consent of, and facilitating the delivery of, customary comfort letters (including as to negative assurance) from, Ernst & Young LLP (including by providing customary management letters and requesting legal letters to obtain such consent) if necessary, desirable or effective until at customary for Parent’s use of the financial statements of the Company and its subsidiaries in any marketing or promptly following offering materials to be used in connection with the Financing; (v) taking all organizational actions and executing and delivering any definitive financing agreements, any customary certificates or other customary documents or instruments relating to guarantees or other matters related to the Financing, subject to the occurrence of the Effective Time, (v) subject reasonably requested by Parent to any contractual agreement in effect, obtaining permit the Payoff Letter, Financing and the related lien releases, and instruments repayment or refinancing of termination or discharge, as applicable, required pursuant to Section 6.12, in each case which shall provide that, if sufficient funds are received by the financing sources under the Credit Agreement in order to pay off in full all obligations (other than the Excluded Obligations) indebtedness in connection therewith or secured thereby, such release, termination and/or discharge shall be effective, and with the Merger; (vi) furnishing Parent as reasonably promptly as reasonably practical (and in any event at least three (3) business days Business Days prior to the Closing Date) with all documentation and other information related reasonably requested in writing at least ten (10) Business Days prior to the Company and its Subsidiary Closing Date required by regulatory authorities any Governmental Entity in connection with the Financing under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT ActU.S. Patriot Act and the Beneficial Ownership Regulation (to the extent applicable); (vii) obtaining customary payoff letters, lien releases and instruments of discharge in respect of the Company Credit Agreement; (viii) reasonably cooperating with legal counsel to Parent and Merger Sub in connection with any legal opinions that has been such counsel may be required to deliver in connection with any Financing; and (x) delivering conditional notices of prepayment within the time period required by the Company Credit Agreement (or such shorter period as may be acceptable to the agent or the lenders thereunder) and issuing conditional notices of redemption with respect to the Company Notes, as reasonably requested in writing by Parent or its Financing Sources at least ten (10) business days prior to the Closing DateParent. The Company hereby consents to the use of its the trademarks, service marks and logos of the Company and its Subsidiary’s logos subsidiaries in connection with the arrangement of the Financing so long as such trademarks, service marks and logos are used solely (i) in a manner that is not intended to harm or that is not reasonably likely to harm or disparage the Company or any of its Subsidiary subsidiaries or the reputation or goodwill of the Company or any its Subsidiary and (ii) solely in connection with a description of the Company, its business and products or the Merger.
(b) subsidiaries. Notwithstanding the requirements of Section 6.16(a) or anything in this Agreement to the contraryforegoing, (i) neither the Company nor any of its Affiliates or their respective Representatives shall be required to enter into, approve or perform (or commit to enter into, approve or perform) any certificate, document, agreement, or instrument, in each case which will be effective prior to the Effective Time, (ii) nothing herein shall require such cooperation contemplated thereby to the extent it would interfere (i) unreasonably with disrupt the ordinary conduct of the business or operations of the Company or any of its Affiliates or their respective Affiliatessubsidiaries, (iiiii) none require the Company or its subsidiaries to agree to pay any fees, reimburse any expenses or otherwise incur any actual liability or give any indemnities in each case prior to the Effective Time unless Parent reimburses or is required to reimburse or indemnify the Company or its subsidiaries pursuant to this Agreement; provided, however, that, with respect to any series of Company Notes or the Company Credit Agreement, neither the Company nor any of its Affiliates or their respective Representatives, will subsidiaries shall be required to make any payments of outstanding principal, accrued and unpaid interest and/or applicable premiums or consent payments (1other than with respect to scheduled payments of principal and interest) pay unless Parent has irrevocably deposited funds sufficient to cover such amounts with the applicable trustee or commit to pay any commitment or other feeagent, (2iii) reimburse require the Company or incur its subsidiaries to take any costs action that would reasonably be expected, in the reasonable judgment of the Company, to conflict with, or expenses result in any violation or incur breach of, any applicable Laws or obligations of confidentiality (not created in contemplation hereof) binding on the Company or its subsidiaries, (iv) require the Company or its subsidiaries to (A) subject to the requirements of Section 6.15, pass resolutions or consents, approve or authorize the execution of, or execute any document, agreement, certificate or instrument or take any other liability corporate action with respect to the Financing that is not contingent on the Closing or that would be effective prior to the Effective Time or (including B) provide or cause its legal counsel to provide any guarantee, indemnity or pledge) legal opinions that are not required in connection with the Financing transactions contemplated by Section 6.15, (v) require the Company to prepare separate financial statements or any new compensation information or (vi) require the Marketing Documents Company or any subsidiary thereof to incur additional indebtedness prior to the Effective TimeClosing. Notwithstanding anything to the contrary contained in this Agreement (including this Section 6.14), nothing in this Agreement shall require the Company to cause the delivery of (A) any reliance letter, any certificate as to solvency or any other certificate necessary for the Financing other than as contemplated by clause (iii) of the first sentence in this Section 6.14(a), (3B) provide any financial data other than information in a form not customarily prepared by the Required Information, Company with respect to any period or (4C) provide any legal opinion financial information with respect to a month of fiscal period that has not yet ended or reliance letters or any certificate has ended less than forty-five (in the case of the Company or its Subsidiary that would be required to be delivered 45) days prior to the Effective Time), comfort letter date of such request. Parent acknowledges and agrees that any access or opinion of any of its Representatives, (iv) nothing herein will involve any binding commitment by the Company, any of its Affiliates or any of their respective Representatives which commitment is not conditioned on the Effective Time and does not terminate without liability information contemplated to the Company, its Affiliates and their respective Representatives upon the termination of this Agreement, and (v) nothing herein will require the Company, any of its Affiliates or any of their respective Representatives to provide any information or take any action, the disclosure or taking of which would violate applicable Legal Requirements, any fiduciary duty, any Contract or obligation of confidentiality owing to a third party, or jeopardize the protection of the attorney-client privilege (or similar protections) held be provided by the Company or any of its Affiliates; provided thatsubsidiaries pursuant to this Section 6.14 shall, if to the Company does not provide or cause its Representatives to provide such access or extent such information in reliance on the foregoing, then the Company shall (1) provide a written notice to Parent stating that it is withholding such access or such constitutes material non-public information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1) any Representative of the Company or its Subsidiary Company, only be provided to deliver any certificate or opinion or take any other action under this Section 6.16 that could reasonably be expected to result in personal liability to such Representative; (2) the Board of Directors (or any committee or subcommittee thereof) or the board of directorsPersons, managers, managing member or any similar controlling body of any Subsidiary of the Company to approve (or otherwise take any corporate or similar action with respect to) any financing (including the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) Sources, if such other Person affirmatively agrees to maintain the Company confidentiality of such information pursuant to a customary confidentiality agreement and its Subsidiary to take any action comply with all federal and state securities laws and regulations applicable to such information, except with respect to such information that would conflict with or violate its organizational or governance documents or any applicable Legal Requirements, or result be required to be disclosed in the contravention of, or that could reasonably be expected to result in a violation respect of breach of, or default under, any agreement to which the Company or its Subsidiary is a party.
(c) Subject to any applicable Legal Requirements, all non-public or other confidential information provided by the Company, its Subsidiary or any an offering of their respective Representatives pursuant to this Agreement will be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Purchaser will be permitted to disclose such information to any Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties to the Financing and to any underwriters, initial purchasers or placement agents securities in connection with the Financing (andto ensure that the offering materials in respect of such securities 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 each casethe light of the circumstances under which they were made, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; or (ii) are subject to other confidentiality undertakings reasonably satisfactory to the Company and of which the Company is a beneficiarynot misleading.
(db) If the Closing does not occurParent shall, promptly upon written request by the Company, Parent will reimburse the Company for any all reasonable and documented and reasonable out-of-pocket costs costs, fees and expenses (including attorneys’ feesfees and expenses) incurred by to the Company or its Subsidiary in connection with the cooperation of the Company and its Subsidiary contemplated by this Section 6.16 (it being understood and agreed that the reimbursement set forth in this Section 6.16(d) shall not apply to any fees, extent such costs, fees and expenses are incurred by, or on behalf of, the Company, its Subsidiary or any of its Representatives in connection with its ordinary course financial reporting requirements or in the provision of data that, in each case, was already prepared or was being prepared by the Company, its Subsidiary subsidiaries or its their respective Representatives in connection with any such party complying with the ordinary course of business notwithstanding obligations under this Section 6.16).
(e) The 6.14, and Parent shall indemnify, defend indemnify and hold harmless the Company Entities Company, its subsidiaries and their respective Representatives from and against any and all losses, damages, claims, interest, awards, judgments, penalties, costs and or expenses suffered or incurred by any of them in connection with the Financing (including any action taken in accordance with this Section 6.16) and costs and expenses incurred in defending against the foregoing, except to the extent such losses, damages, claims, interest, awards, judgments, penalties, costs or expenses arise from arose out of the willful breach of this Agreement actions taken by the Company, as finally its subsidiaries or their respective Representatives pursuant to this Section 6.14 (other than information provided by the Company, its subsidiaries or Representatives in writing for express use therein), except in the event such losses, damages, claims, interest, awards, judgments, penalties, costs or expenses are determined by a final non-appealable judgment of a court of competent jurisdictionjurisdiction to have arisen out of or resulted from the gross negligence, bad faith or from fraud on the part willful misconduct of the Company, any of its subsidiaries or any of their respective Representatives.
(c) Notwithstanding anything to the contrary herein, it is understood and agreed that the Company shall be deemed to have satisfied its obligations under this Section 6.14 unless the Company’s failure to reasonably satisfy its obligations under this Section 6.14 was the primary cause of, or primarily resulted in, any Financing not being obtained.
Appears in 2 contracts
Samples: Merger Agreement (Waste Management Inc), Merger Agreement (Advanced Disposal Services, Inc.)
Financing Cooperation. (a) Subject to Section 6.16(b), prior to Closing or termination of this Agreement, the The Company shallshall use its reasonable best efforts, and shall cause each of its Subsidiaries to use its reasonable best efforts, and each of them shall use their respective Representatives to, use reasonable best efforts to cause their respective Representatives to use their reasonable best efforts, to provide customary, reasonable and timely cooperation to the Parent and Merger Sub and their respective Representatives, to the extent reasonably cooperate with and reasonably assist requested by Parent, at the Parent’s request, sole cost and expense, in connection with arrangingthe offering, obtaining and syndicating arrangement, syndication, marketing, consummation, issuance or sale of any Debt Financing and causing (including, for greater certainty, any potential Alternative Financing ) (provided, that such requested cooperation does not unreasonably interfere with the conditions in ongoing operations of the Financing Documents and Company or any commitment letters entered into in connection with such Financing of its Affiliates), including, to be satisfiedthe extent so requested, including using reasonable best efforts in to:
(i) assisting withas promptly as reasonably practical, furnish Parent, Merger Sub and the Financing Parties (and their respective Representatives, as applicable) with the Required Financing Information and such further information as may be reasonably necessary for the Required Financing Information to remain Compliant and such other customary financial and other information regarding the Company and its Subsidiaries as may reasonably be requested by, and furnishing information for is necessary for, Parent or Merger Sub to fulfill the purposes ofconditions and obligations applicable to it under the Debt Commitment Letters;
(ii) provide reasonable and customary assistance to Parent, Merger Sub and the Financing Parties (and their respective Representatives, agents and advisors, as applicable) in their preparation of customary prospectuses (including any pro forma financial information and any information required under Article 18(2A) of Commission Delegated Regulation (EU) 2019/980)offering documents, offering documentsmemoranda, offering circulars, private placement memoranda, registration statements, prospectuses, syndication documents and other syndication materials, including bank information memoranda and private placement memoranda, lender and investor presentations, bank books and other marketing documents, and similar documents to be used in connection with any portion of the Debt Financing and (B) materials for rating agency materials presentations, including (but subject to Section 5.21(b)), by providing any financial information and other data required to prepare any pro forma financial statements that are required under applicable securities Laws to be included in, or as may otherwise be reasonably required for and are customarily included in the foregoing financing materials;
(iii) make senior management of the Company available, at reasonable times and locations and upon reasonable prior notice, to participate in meetings (including one-on-one conference or virtual calls with Financing Parties and potential Financing Parties, including prospective investors in any Debt Financing involving the issuance of securities), drafting sessions, presentations, road shows, rating agency presentations and due diligence sessions and other customary marketing syndication activities, provided, at the Company’s option in consultation with Parent, any such meeting or communication may be conducted virtually by videoconference or other media;
(iv) cause the Company’s independent registered accounting firm to provide customary assistance, including by using reasonable best efforts to cause the Company’s independent registered accounting firm (A) to provide customary comfort letters (including “negative assurance” comfort) in connection with any capital markets transaction comprising a part of the Debt Financing to the applicable Financing Parties, (B) to provide any necessary consent to the inclusion of its audit report in respect of any financial statements of the Company included or incorporated in any of the applicable financing materials referred to in Section 5.21(a)(ii), and (C) to participate in a reasonable number of due diligence sessions at reasonable times and locations and upon reasonable prior notice; provided, at the Company’s option, any such session may be conducted virtually by videoconference or other media, and including by using reasonable best efforts to provide customary representation letters to the extent required by such independent registered accounting firm in connection with the foregoing;
(v) provide customary authorization letters authorizing the distribution of Company information to prospective lenders in connection with a syndicated bank financing;
(vi) assist Parent, Merger Sub and the Financing Parties in obtaining or updating corporate, facility and issue credit ratings;
(vii) assist in the negotiation, preparation and (contingent upon the Closing) execution and delivery of any credit agreement, indenture, note, debenture or other debt security, purchase, underwriting or agency agreement, guarantees, security documents, including any required information schedules or disclosures thereto, cash management agreements, hedging agreements, other supporting documents and customary closing certificates, and any other definitive and ancillary documentation for the Debt Financing as may be reasonably requested by Parent, in each case as contemplated in connection with the Debt Financing;
(viii) make introductions of Parent to the Company’s existing lenders and facilitate relevant coordination between Parent and such lenders;
(ix) cooperate with the due diligence of Financing Parties and their Representatives in connection with the Debt Financing, to the extent customary and reasonable, including the provision of all such documents and materials, collectively, the “Marketing Documents”) (it being understood and agreed that the Marketing Documents shall include (or otherwise be subject to) any customary exculpation language, as the case may be, information requested with respect to the Company, its Affiliates property and their respective Representatives), (ii) furnishing to the Parent as promptly as reasonably practicable financial statements and operational information (including consolidated financial statements for interim periods up until the Closing Date) that can be prepared without undue burden with respect to assets of the Company and its Subsidiary as is reasonably requested by Parent (the “Required Information”), (iii) assisting in the preparation of schedules to collateral agreements Subsidiaries and by providing to internal and external counsel of Parent, Merger Sub and the Financing Parties, as applicable, customary back-up certificates and factual information of to support any legal opinion that such counsel may be required to deliver in connection with the Debt Financing; provided, that, the Company Entities required to be made available on such schedules for purposes of the arrangement or consummation of the Financing, (iv) subject to any contractual agreement in effect, facilitating the pledging of collateral for the Financing, which and its Affiliates shall not be required to be delivered deliver or effective until at or promptly following cause the Effective Timedelivery of any legal opinions related to the Debt Financing;
(x) deliver, (v) subject to any contractual agreement in effect, obtaining the Payoff Letter, and the related lien releases, and instruments of termination or discharge, as applicable, required pursuant to Section 6.12, in each case which shall provide that, if sufficient funds are received by the financing sources under the Credit Agreement in order to pay off in full all obligations (other than the Excluded Obligations) in connection therewith or secured thereby, such release, termination and/or discharge shall be effective, and (vi) furnishing Parent as promptly as reasonably practical (and at least three seven (37) business days Business Days prior to Closing, to the Closing Dateextent reasonably requested in writing at least ten (10) with Business Days prior to Closing, all documentation and other information related to regarding the Company and its Subsidiary Subsidiaries that any Financing Party reasonably determines is required by domestic and foreign regulatory authorities under applicable “know your customer” and domestic and foreign anti-money laundering rules and regulations, including the PATRIOT ActUSA Patriot Act of 2001, and, to the extent required by any Financing Party, a beneficial ownership certificate (substantially similar in form and substance to the form of Certification Regarding Beneficial Owners of Legal Entity Customers published jointly, in May 2018, by the Loan Syndications and Trading Association and Securities Industry and Financial Markets Association) in respect of any of the Company or any of its Subsidiaries that has been reasonably requested qualifies as a “legal entity customer” under the Beneficial Ownership Regulation (31 C.F.R. § 1010.230);
(xi) cooperate with and use reasonable best efforts to provide all reasonable assistance to Parent in connection with any steps Parent may determine are necessary or desirable to take to prepay some or all amounts outstanding under the Company’s existing Credit Facility, including (A) preparing and submitting customary notices in respect of any such prepayment; provided that such prepayment shall be contingent upon the occurrence of the Closing unless otherwise agreed in writing by Parent or its Financing Sources at least ten the Company, (10B) business days prior obtaining from the agent a customary payoff letter in respect of the Company’s existing Credit Facility and (C) cooperate in the discharge and release of Liens securing indebtedness referenced in this clause (xi), including obtaining customary lien termination and other instruments of discharge, in each case in a form reasonably acceptable to Parent;
(xii) to the Closing Date. The extent requested by Parent, provide guarantees and facilitate the pledging of collateral and granting of security interests in connection with the Debt Financing (which discharges, releases, guarantees and security interests, for the avoidance of doubt, shall not be required to take effect before the Closing):
(xiii) as soon as reasonably practical following the receipt of a written request of Parent, as determined by Parent in its sole discretion, (A) commence one or more consent solicitations to the holders of the Company’s Senior Notes, to waive, amend or remove any applicable change of control provisions, defaults or other covenants that would apply in connection with, or otherwise restrict the ability of the parties to consummate, the Merger or the Debt Financing as contemplated in this Agreement or the Debt Commitment Letters, as applicable (the “Consent Solicitations”), (B) commence one or more offers to purchase the Company’s Senior Notes (the “Debt Offers”), (C) issue a notice of optional redemption to redeem the Company’ Senior Notes pursuant to the terms thereof (the “Debt Redemptions”) or (D) take such other actions as may be permitted or required by the terms of the Company’s Senior Notes to satisfy and discharge, or defease any or all obligations under, the Company’s Senior Notes (the “Debt Discharge” and together with the Consent Solicitations, Debt Offers, and Debt Redemptions, the “Debt Transactions”), in each case on the terms and conditions specified by Parent (and, for greater certainty, Parent may request any combination of Debt Transactions pursuant to this clause (xiii)); provided that the Company hereby consents shall not be required to commence any Debt Transaction until Parent shall have provided the Company with the necessary consent solicitation statement, offer to purchase, related letter of transmittal, supplemental indenture, redemption notice and other related documents in connection therewith; provided, further, that Parent shall consult with the Company regarding the timing of any Debt Transaction in light of the regular financial reporting schedule of the Company and the requirements of applicable Law; and
(xiv) consent to the use of its and its Subsidiary’s Subsidiaries’ trademarks, trade names and logos in connection with the Financing so long as Debt Financing; provided that such trademarks, trade names and logos are used solely (i) in a manner that is not intended to or that is not to, nor reasonably likely to to, harm or disparage the Company or its Subsidiary Subsidiaries or the Company’s or its Subsidiaries’ reputation or goodwill of the Company or its Subsidiary and (ii) solely in connection with a description of the Company, its business and products or the Mergergoodwill.
(b) Notwithstanding the requirements foregoing, none of Section 6.16(a) or anything in this Agreement to the contrary, (i) neither the Company nor any of its Affiliates or their respective Representatives shall be required to take or permit the taking of any action pursuant to Section 5.21 that would: (i) require the Company or its Subsidiaries or any of their respective Affiliates or any persons who are officers or directors of such entities to pass resolutions or consents to approve or authorize the execution of the Debt Financing or enter into, approve execute or perform (or commit to enter into, approve or perform) deliver any certificate, document, agreementinstrument or agreement or agree to any change or modification of any existing certificate, document, instrument or instrument, agreement (except for the authorization letters contemplated by Section 5.21(a)(v)) in each case case, which will be effective prior to the Effective Timeare not contingent on Closing, (ii) nothing herein shall cause any representation, warranty or other provision in this Agreement to be breached by the Company or any of its Affiliates, (iii) require cooperation contemplated thereby the Company or any of its Affiliates to (x) pay any commitment or other similar fee or (y) incur any other expense, liability or obligation which expense, liability or obligation is not reimbursed or indemnified hereunder in connection with the Debt Financing prior to the extent it would interfere unreasonably Closing, or (z) have any obligation of the Company or any of its Affiliates under any agreement, certificate, document or instrument be effective until the Closing, (iv) cause any director, officer, employee or stockholder of the Company or any of its Affiliates to incur any personal liability, (v) conflict with the business or operations Organizational Documents of the Company or any of its Affiliates or their respective Affiliatesany Laws, (iiivi) none reasonably be expected to result in a material violation or material breach of, or a default (with or without notice, lapse of time, or both) under, any Contract to which the Company nor or any of its Affiliates is a party, (vii) provide access to or their respective Representatives, will be required disclose information to (1) pay the extent that the Company or commit to pay any commitment of its Affiliates determines in good faith would jeopardize any attorney-client privilege or other feesimilar privilege or protection of the Company or any of its Affiliates in respect of such information, or (2viii) reimburse or incur any costs or expenses or incur any other liability (including any guarantee, indemnity or pledge) in connection with require the Financing or the Marketing Documents prior Company to the Effective Time, (3) provide prepare any financial data statements or information (other than the Required Financing Information, or (4) provide any legal opinion or reliance letters or any certificate (that are not available to it and prepared in the case Ordinary Course of the Company or Business consistent with its Subsidiary historic financial reporting practice, with it being further understood that would be required to be delivered prior to the Effective Time), comfort letter or opinion of any of its Representatives, Parent (iv) nothing herein will involve any binding commitment by the Company, any of its Affiliates or any of their respective Representatives which commitment is and not conditioned on the Effective Time and does not terminate without liability to the Company, its Affiliates and their respective Representatives upon the termination of this Agreement, and (v) nothing herein will require the Company, any of its Affiliates or any of their respective Representatives to provide any information or take any action, the disclosure or taking of which would violate applicable Legal Requirements, any fiduciary duty, any Contract or obligation of confidentiality owing to a third party, or jeopardize the protection of the attorney-client privilege (or similar protections) held by the Company or any of its Affiliates; provided that) shall be responsible for the preparation of any pro forma financial statements for the Debt Financing (including, if for the Company does not provide avoidance of doubt, any Alternative Financing), including the preparation of any pro forma calculations, any post-Closing or cause its Representatives to provide such access other pro forma cost savings synergies, capitalization, ownership or such information in reliance on the foregoing, then the Company shall (1) provide a written notice to Parent stating other pro forma adjustments that it is withholding such access or such information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilegemay be included therein. Nothing contained in this Section 6.16 will 5.21 or otherwise shall require (1) any Representative of the Company or any of its Subsidiary Affiliates, prior to deliver any certificate the Closing, to be an issuer or opinion or take any other action under this Section 6.16 that could reasonably be expected to result in personal liability to such Representative; (2) the Board of Directors (or any committee or subcommittee thereof) or the board of directors, managers, managing member or any similar controlling body of any Subsidiary of the Company to approve (or otherwise take any corporate or similar action obligor with respect to) any financing (including the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) the Company and its Subsidiary to take any action that would conflict with or violate its organizational or governance documents or any applicable Legal Requirements, or result in the contravention of, or that could reasonably be expected to result in a violation of breach of, or default under, any agreement to which the Company or its Subsidiary is a party.
(c) Subject to any applicable Legal Requirements, all non-public or other confidential information provided by the Company, its Subsidiary or any of their respective Representatives pursuant to this Agreement will be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Purchaser will be permitted to disclose such information to any Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties to the Financing and to any underwriters, initial purchasers or placement agents in connection with the Financing (and, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; or (ii) are subject to other confidentiality undertakings reasonably satisfactory to the Company and of which the Company is a beneficiary.
(d) If the Closing does not occurDebt Financing. Parent shall, promptly upon on request by the Company, Parent will reimburse the Company and its Affiliates for any all reasonable and documented and reasonable out-of-pocket costs and expenses (including attorneys’ fees) incurred by the Company them or its Subsidiary in connection with the cooperation of the Company and its Subsidiary contemplated by this Section 6.16 (it being understood and agreed that the reimbursement set forth in this Section 6.16(d) shall not apply to any fees, costs, and expenses incurred by, or on behalf of, the Company, its Subsidiary or any of its their Representatives in connection with its ordinary course financial reporting requirements or in the provision of data that, in each case, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding this Section 6.16).
(e) The Parent such cooperation and shall indemnify, defend indemnify and hold harmless the Company Entities and its Affiliates and their respective Representatives from and against any and all losses, damages, claims, interest, awards, judgments, penalties, costs and expenses losses suffered or incurred by any of them in connection with the Financing (including arrangement of the Debt Financing, any action taken by them at the request of Parent or its Representatives pursuant to this Section 5.21 and any information used in connection therewith (other than information provided by or on behalf of the Company expressly for use in connection therewith).
(c) The Parties hereto acknowledge and agree that the provisions contained in this Section 5.21 represent the sole obligation of the Company and its Subsidiaries with respect to cooperation in connection with the arrangement of any financing (including the Debt Financing) to be obtained by Parent with respect to the transactions contemplated by this Agreement, and no other provision of this Agreement shall be deemed to expand or modify such obligations. In no event shall the receipt or availability of any funds or financing (including the Debt Financing) by Parent any of its Affiliates or any other financing or other transactions be a condition to any of Parent’s obligations under this Agreement. Notwithstanding anything to the contrary in this Agreement, the Company’s breach of any of the covenants required to be performed by it under this Section 5.21 shall not be considered in determining the satisfaction of the condition set forth in Section 6.3(b), unless such breach is the primary cause of Parent being unable to consummate, and obtain the proceeds of, the Debt Financing at or prior to Closing.
(d) All non-public or otherwise confidential information regarding the Company or any of its Affiliates obtained by Parent or its Representatives pursuant to this Section 5.21 shall be kept confidential in accordance with this Section 6.16the Confidentiality Agreement; provided, that Parent shall be permitted to disclose such information to (i) the Financing Parties subject to their confidentiality obligations under the Debt Commitment Letters and costs the definitive documentation evidencing the Debt Financing and expenses incurred in defending against the foregoing, except (ii) otherwise to the extent such losses, damages, claims, costs or expenses arise from necessary and consistent with customary practices in connection with the willful breach of this Agreement by the Company, as finally determined by a court of competent jurisdiction, or from fraud on the part of Debt Financing subject to customary confidentiality arrangements reasonably satisfactory to the Company.
Appears in 2 contracts
Samples: Merger Agreement (Enerflex Ltd.), Merger Agreement (Exterran Corp)
Financing Cooperation. (a) Subject to Section 6.16(b), prior to Closing or termination of this Agreement, the The Company shallshall use its reasonable best efforts to, and shall cause its Subsidiaries and their respective Representatives to, to use their reasonable best efforts to reasonably cooperate with and reasonably assist Parentto, at the Parent’s request, sole cost and expense, provide all cooperation in connection with arranging, obtaining and syndicating any the arrangement of the Debt Financing and causing the conditions in the Financing Documents and any commitment letters entered into that is customary in connection with the arrangement of the Debt Financing as may be reasonably requested by Parent (provided that such Financing to be satisfiedrequested cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries), including using reasonable best efforts in (i) participation in meetings, due diligence sessions, “road shows” and sessions with rating agencies, in each case, at times and locations to be mutually agreed upon, (ii) assisting with, and furnishing information for the purposes of, Parent with the preparation of customary prospectuses (including any pro forma financial information and any information required under Article 18(2) of Commission Delegated Regulation (EU) 2019/980)materials for rating agency presentations, offering documents, syndication documents and materials, including bank information memoranda and private placement memoranda, lender bank information memoranda, prospectuses and investor presentations, rating agency materials and presentations and other similar customary marketing materials documents required in connection with the Financing Debt Financing, (all such documents and materials, collectively, the “Marketing Documents”iii) (it being understood and agreed that the Marketing Documents shall include (or otherwise be subject to) any customary exculpation language, as the case may be, with respect to the Companyextent not otherwise publically available, furnishing Parent and its Affiliates Debt Financing Sources with financial and their respective Representatives), (ii) furnishing to the Parent as promptly as reasonably practicable financial statements and operational other pertinent information (including consolidated financial statements for interim periods up until the Closing Date) that can be prepared without undue burden with respect to regarding the Company and its Subsidiary as is reasonably requested by Parent Subsidiaries (the “Required Information”), (iii) assisting in the preparation of schedules to collateral agreements by providing including financial statements, pro forma financial information, financial data, audit reports and other information of the Company Entities type required to be made available by Regulation S-X or Regulation S-K under the 1933 Act and of type and form customarily included in a registration statement on such schedules for purposes of Form S-1 (or any applicable successor form) under the arrangement or consummation of the Financing1933 Act, (iv) subject to any contractual agreement in effect, facilitating the pledging of collateral for the Financing, which shall not be required to be delivered or effective until at or promptly following the Effective Time, obtaining accountants’ comfort letters and legal opinions and (v) subject to executing and delivering any contractual agreement in effectcommitment letters, obtaining the Payoff Letterunderwriting or placement agreements, registration statements, pledge and the related lien releasessecurity documents, and instruments of termination other definitive financing documents or dischargeother requested certificates or documents, as applicable, required pursuant to Section 6.12, in each case which shall provide that, if sufficient funds are received including a customary solvency certificate by the financing sources under chief financial officer of the Credit Agreement in order to pay off in full all obligations Company (other than provided that (A) none of the Excluded Obligations) in connection therewith or secured therebyletters, such releaseagreements, termination and/or discharge documents and certificates shall be effective, executed and (vi) furnishing Parent as promptly as reasonably practical (and at least three (3) business days delivered prior to the Closing Date, (B) with all documentation and other information related to the Company and its Subsidiary required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulationseffectiveness thereof shall be conditioned upon, including or become operative after, the PATRIOT Act, that has been reasonably requested in writing by Parent or its Financing Sources at least ten (10) business days prior to occurrence of the Closing Date. The Company hereby consents to the use of its and its Subsidiary’s logos in connection with the Financing so long as such logos are used solely (i) in a manner that is not intended to or that is not reasonably likely to harm or disparage the Company or its Subsidiary or the reputation or goodwill of the Company or its Subsidiary and (iiC) solely in connection with a description of no personal or other liability shall be imposed on the Companyofficers, its business and products directors, management or the Mergeremployees involved).
(b) Notwithstanding the requirements of Section 6.16(a) or anything in If this Agreement to the contrary, (i) neither the Company nor any of its Affiliates or their respective Representatives shall be required to enter into, approve or perform (or commit to enter into, approve or perform) any certificate, document, agreement, or instrument, in each case which will be effective prior to the Effective Time, (ii) nothing herein shall require cooperation contemplated thereby to the extent it would interfere unreasonably with the business or operations of the Company or any of its Affiliates or their respective Affiliates, (iii) none of the Company nor any of its Affiliates or their respective Representatives, will be required to (1) pay or commit to pay any commitment or other fee, (2) reimburse or incur any costs or expenses or incur any other liability (including any guarantee, indemnity or pledge) in connection with the Financing or the Marketing Documents prior to the Effective Time, (3) provide any financial data other than the Required Information, or (4) provide any legal opinion or reliance letters or any certificate (in the case of the Company or its Subsidiary that would be required to be delivered prior to the Effective Time), comfort letter or opinion of any of its Representatives, (iv) nothing herein will involve any binding commitment by the Company, any of its Affiliates or any of their respective Representatives which commitment is not conditioned on the Effective Time and does not terminate without liability to the Company, its Affiliates and their respective Representatives upon the termination of this Agreement, and (v) nothing herein will require the Company, any of its Affiliates or any of their respective Representatives to provide any information or take any action, the disclosure or taking of which would violate applicable Legal Requirements, any fiduciary duty, any Contract or obligation of confidentiality owing to a third party, or jeopardize the protection of the attorney-client privilege (or similar protections) held by the Company or any of its Affiliates; provided that, if the Company does not provide or cause its Representatives to provide such access or such information in reliance on the foregoing, then the Company shall (1) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1) any Representative of the Company or its Subsidiary to deliver any certificate or opinion or take any other action under this Section 6.16 that could reasonably be expected to result in personal liability to such Representative; (2) the Board of Directors (or any committee or subcommittee thereof) or the board of directors, managers, managing member or any similar controlling body of any Subsidiary of the Company to approve (or otherwise take any corporate or similar action with respect to) any financing (including the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) the Company and its Subsidiary to take any action that would conflict with or violate its organizational or governance documents or any applicable Legal Requirements, or result in the contravention of, or that could reasonably be expected to result in a violation of breach of, or default under, any agreement to which the Company or its Subsidiary is a party.
(c) Subject to any applicable Legal Requirements, all non-public or other confidential information provided by the Company, its Subsidiary or any of their respective Representatives terminated pursuant to this Agreement will be kept confidential in accordance with the Confidentiality AgreementArticle X Parent shall promptly, except that Parent and Purchaser will be permitted to disclose such information to any Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties to the Financing and to any underwriters, initial purchasers or placement agents in connection with the Financing (and, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; or (ii) are subject to other confidentiality undertakings reasonably satisfactory to the Company and of which the Company is a beneficiary.
(d) If the Closing does not occur, promptly upon request by the Company, Parent will reimburse the Company for any documented and reasonable all out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred and documented by the Company or any of its Subsidiary Subsidiaries in connection with the cooperation of the Company and its Subsidiary Subsidiaries contemplated by this Section 6.16 (it being understood and agreed that the reimbursement set forth in this Section 6.16(d) shall not apply to any fees, costs, and expenses incurred by, or on behalf of, the Company, its Subsidiary or any of its Representatives in connection with its ordinary course financial reporting requirements or in the provision of data that, in each case, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding this Section 6.16).
(e) 6.06. The Parent shall indemnify, defend and hold harmless the Company Entities Company, its Subsidiaries and their respective Representatives from and against any and all losses, claims, damages, claimsliabilities, interestfees, awardsexpenses, judgments, penalties, costs judgments and expenses suffered fines arising in whole or incurred by any in part out of them in connection with the Financing (including any action taken in accordance with actions or omissions undertaken pursuant to this Section 6.16) and costs and expenses incurred 6.06 other than arising from fraud. Nothing in defending against this Section 6.06 shall require the foregoingcooperation of the Company, except its Subsidiaries or their respective Representatives to the extent such losses, damages, claims, costs it would (i) cause any condition to Closing to fail to be satisfied or expenses arise from the willful otherwise cause a breach of this Agreement (unless waived by the CompanyCompany or Parent) or (ii) violate organizational documents, as finally determined by a court of competent jurisdictionlaw applicable to it, or from fraud on the part result in a material violation or breach under, any of the Companyits Material Contracts.
Appears in 2 contracts
Samples: Merger Agreement (ChyronHego Corp), Merger Agreement (ChyronHego Corp)
Financing Cooperation. (a) Subject to Section 6.16(b), prior to Closing or termination of this Agreement, the The Company shallshall use its commercially reasonable efforts to, and shall use commercially reasonable efforts to cause each of its Subsidiaries and its and their respective directors, officers, managers, employees, members and Representatives to, use reasonable best efforts provide to reasonably cooperate with and reasonably assist Parent, at the Parent’s request, sole cost and expense, such customary cooperation as may be reasonably requested by Parent to assist Parent in connection with arranging, obtaining and syndicating any Financing and causing the conditions in the Definitive Debt Financing Documents Agreements to be satisfied and any commitment letters entered into such customary cooperation as is otherwise reasonably requested by Parent solely in connection with obtaining the Debt Financing (provided that nothing herein shall require such Financing cooperation to be satisfiedthe extent that it would unreasonably interfere with the business or operations of the Company), including using reasonable best efforts in which includes but is not limited to:
(i) assisting withsenior management of the Company participating, on advance notice, in a customary and furnishing information for reasonable number of meetings, presentations, road shows, due diligence sessions, drafting sessions and sessions with rating agencies, including direct contact between senior management and Representatives of the purposes of, Company and its Subsidiaries and the Debt Financing Sources;
(ii) reasonably cooperating with the preparation of customary prospectuses (including any pro forma financial information and any information required under Article 18(2) of Commission Delegated Regulation (EU) 2019/980)materials for rating agency presentations, offering documents, syndication documents and materials, including bank information memoranda and private placement memoranda, lender bank information memoranda, prospectuses and investor presentations, rating agency materials and presentations and other customary marketing materials similar documents reasonably required in connection with the Debt Financing, and providing reasonable and customary authorization letters to the Debt Financing (all Sources authorizing the distribution of information to prospective lenders and other financing sources and containing customary information; provided, that any such documents prospective lenders and materials, collectively, the “Marketing Documents”) (it being understood and financing sources shall have agreed that the Marketing Documents shall include (or otherwise be subject to) any to keep such information confidential pursuant to customary exculpation language, as the case may be, confidentiality undertakings with respect to the Company, its Affiliates and their respective Representatives), (ii) furnishing to the Parent as promptly as reasonably practicable financial statements and operational such information (including consolidated financial statements for interim periods up until the Closing Date) that can be prepared without undue burden with respect and as to which the Company and its Subsidiary as is reasonably requested by Parent (the “Required Information”shall be an express beneficiary), ;
(iii) assisting in the preparation negotiation, execution and delivery of schedules officer’s certificates (including relating to collateral agreements by providing information solvency matters of the Company Entities required both before and after giving effect to be made available on such schedules for purposes the incurrence of the arrangement or Debt Financing and the consummation of the transactions contemplated by this Agreement and such Debt Financing), it being understood that such solvency certificate shall not require the applicable officer to address (ivA) subject to the solvency of any contractual agreement in effectentity other than Parent, any Subsidiary of Parent and/or the Company or (B) transactions other than the transactions contemplated by this Agreement and the Definitive Debt Financing Agreements, credit agreements, indentures, purchase agreements, pledge and security documents, collateral documents and documents facilitating the pledging pledge of collateral for the FinancingDebt Financing (including reasonable cooperation in connection with any pay-down or pay-off of the Indebtedness of the Company, which shall not be required to be delivered or effective until at or promptly following including the Effective Time, (v) subject to any contractual agreement in effect, obtaining payment of the Payoff LetterCredit Party Closing Payment Amount, and the release of related lien releases, and instruments of termination or dischargeLiens, as applicable); provided, required pursuant to Section 6.12that such documents shall not take effect until, in each case which shall provide that, if sufficient funds are received by the financing sources under the Credit Agreement in order to pay off in full all obligations (other than the Excluded Obligations) in connection therewith or secured thereby, such release, termination and/or discharge and shall be effectiveconditioned upon the occurrence of, and the Closing;
(viiv) furnishing Parent and the Debt Financing Sources as promptly as reasonably practical practicable following written request from the Parent with all consolidated financial statements and other pertinent information related solely to the Company and its Subsidiaries and required or otherwise reasonably requested by the Debt Financing Sources, including the financial statements required by paragraph 4 of Exhibit B of the Debt Commitment Letter; provided, that the Company shall not be responsible for, the preparation of projections, risk factors and forward-looking statements relating to all or any component of the Debt Financing and 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;
(v) permitting the prospective lenders or investors involved in the Debt Financing or their representatives to evaluate, examine or audit the Company and its Subsidiaries, including their respective assets, borrowing base, cash management and accounting systems, policies and procedures relating thereto for the purpose of establishing collateral arrangements; and
(vi) using commercially reasonable efforts to cooperate in satisfying the conditions precedent set forth in any commitment letters related to the Debt Financing.
(b) Notwithstanding anything to the contrary contained in this Agreement (i) nothing in this Agreement (including this Section 6.17) shall require any cooperation to the extent that it would (A) require the Company or any of its Subsidiaries to pay any commitment or other fees or reimburse any expenses that are not contingent upon and due on or after the Closing, or incur any liability or give any indemnities that are not contingent upon and due on or after the Closing, (B) unreasonably interfere with the ongoing business or operations of the Company or any of its Subsidiaries, (C) require the Company or any of its Subsidiaries to take any action that would conflict with or violate 38031572.13 the Company’s or any of its Subsidiaries’ Charter Documents or other organizational documents or any Laws, or (D) result in any officer or director of the Company or any of its Subsidiaries incurring personal liability with respect to any matters relating to the Debt Financing; and (ii) any action, liability or obligation (including any obligation to pay any commitment or other fees or reimburse any expenses) of the Company or any of its Subsidiaries or any of their respective representatives under any certificate, agreement, arrangement, document or instrument relating to the Debt Financing shall not be effective until following the Closing.
(c) The Company shall and shall cause each of its Subsidiaries to deliver to Parent promptly (to the extent requested at least three five (35) business days prior to the Closing Date) ), with all documentation and other information related to the Company and its Subsidiary reasonably required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, that has been reasonably requested in writing by Parent or its Financing Sources at least ten .
(10d) business days prior to the Closing Date. The Company hereby consents to the use of its and its Subsidiary’s logos in connection with the Debt Financing so long as in a manner consistent with debt financings similar to the Debt Financing, provided, that such logos are used solely (i) in a manner that is not intended to or that is not reasonably likely to harm or disparage the Company or its Subsidiary or the reputation or goodwill of the Company or its Subsidiary and (ii) solely in connection with a description of the Company, its business and products or the Merger.
(b) Notwithstanding the requirements of Section 6.16(a) or anything in this Agreement to the contrary, (i) neither the Company nor any of its Affiliates or their respective Representatives shall be required to enter into, approve or perform (or commit to enter into, approve or perform) any certificate, document, agreement, or instrument, in each case which will be effective prior to the Effective Time, (ii) nothing herein shall require cooperation contemplated thereby to the extent it would interfere unreasonably with the business or operations of the Company or any of its Affiliates or their respective Affiliates, (iii) none of the Company nor any of its Affiliates or their respective Representatives, will be required to (1) pay or commit to pay any commitment or other fee, (2) reimburse or incur any costs or expenses or incur any other liability (including any guarantee, indemnity or pledge) in connection with the Financing or the Marketing Documents prior to the Effective Time, (3) provide any financial data other than the Required Information, or (4) provide any legal opinion or reliance letters or any certificate (in the case of the Company or its Subsidiary that would be required to be delivered prior to the Effective Time), comfort letter or opinion of any of its Representatives, (iv) nothing herein will involve any binding commitment by the Company, any of its Affiliates or any of their respective Representatives which commitment is not conditioned on the Effective Time and does not terminate without liability to the Company, its Affiliates and their respective Representatives upon the termination of this Agreement, and (v) nothing herein will require the Company, any of its Affiliates or any of their respective Representatives to provide any information or take any action, the disclosure or taking of which would violate applicable Legal Requirements, any fiduciary duty, any Contract or obligation of confidentiality owing to a third partySubsidiaries, or jeopardize the protection of the attorney-client privilege (or similar protections) held by the Company or any of its Affiliates; provided that, if the Company does not provide or cause its Representatives to provide such access or such information in reliance on the foregoing, then the Company shall (1) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1) any Representative of the Company or its Subsidiary to deliver any certificate or opinion or take any other action under this Section 6.16 that could reasonably be expected to result in personal liability to such Representative; (2) the Board of Directors (or any committee or subcommittee thereof) or the board of directors, managers, managing member or any similar controlling body of any Subsidiary of the Company to approve (or otherwise take any corporate or similar action with respect to) any financing (including the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) the Company and its Subsidiary to take any action that would conflict with or violate its organizational or governance documents or any applicable Legal Requirements, or result in the contravention of, or that could reasonably be expected to result in a violation of breach of, or default under, any agreement to which the Company or its Subsidiary is a partytheir Intellectual Property.
(ce) Subject to any applicable Legal Requirements, all non-public or other confidential information provided by the Company, its Subsidiary or any of their respective Representatives pursuant to this Agreement will be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Purchaser will be permitted to disclose such information to any Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties to the Financing and to any underwriters, initial purchasers or placement agents in connection with the Financing (and, in each case, to their respective counsel and auditors) so long as such Persons Merger Sub shall (i) agree to be bound by the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; or (ii) are subject to other confidentiality undertakings reasonably satisfactory to the Company and of which the Company is a beneficiary.
(d) If the Closing does not occurpromptly, promptly upon request by the Company, Parent will reimburse the Company for any documented and reasonable all out-of-pocket costs and expenses (including attorneys’ fees and accountants’ fees) incurred by the Company or any of its Subsidiary Affiliates, officers or representatives in connection with the cooperation of the Company actions and its Subsidiary undertakings contemplated by this Section 6.16 (it being understood and agreed that the reimbursement set forth in this Section 6.16(d) shall not apply to any fees, costs6.17, and expenses incurred by, or on behalf of, the Company, its Subsidiary or any of its Representatives in connection with its ordinary course financial reporting requirements or in the provision of data that, in each case, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding this Section 6.16).
(eii) The Parent shall indemnify, defend indemnify and hold harmless Company, the Company Entities and their respective Representatives Affiliates, officers and representatives from and against any and all losses, damages, claims, interest, awards, judgments, penalties, costs and expenses liabilities suffered or incurred by any of them in connection with the arrangement of any Debt Financing (including any action taken or Alternative Financing. All information provided by or on behalf of Company and its Affiliates, officers and representatives pursuant to this Section 6.17 shall be kept confidential by Parent and its Affiliates in accordance with the terms of this Section 6.16) and costs and expenses incurred in defending against the foregoingAgreement, except that Parent and Merger Sub shall be permitted to disclose such information to the extent Debt Source Parties, subject to the Debt Source Parties entering into customary confidentiality undertakings with respect to such losses, damages, claims, costs information. This Section 6.17(e) shall survive the consummation of the Transactions or expenses arise from the willful breach any earlier termination of this Agreement by and is intended to benefit, and may be enforced by, the Company, as finally determined by a court of competent jurisdiction, or from fraud on the part of the CompanyPersons indemnified pursuant to this Section 6.17(e).
Appears in 2 contracts
Samples: Merger Agreement (Apex Global Brands Inc.), Merger Agreement (Apex Global Brands Inc.)
Financing Cooperation. (a) Subject Prior to Section 6.16(b), prior to Closing or termination of this Agreementthe Closing, the Company shall, and shall cause its Subsidiaries and their respective Representatives to, use reasonable best efforts to reasonably cooperate with provide to Parent and reasonably assist ParentMerger Sub, and shall cause each of its subsidiaries to use its reasonable best efforts to provide, and shall use its reasonable best efforts to cause its Representatives, including legal and accounting advisors, to provide, in each case at the Parent’s request, sole cost and expense, all cooperation reasonably requested by Parent and Merger Sub that is reasonably necessary in connection with arranging, obtaining and syndicating any the Debt Financing and causing the conditions in the Debt Financing Documents and any commitment letters entered into in connection with such Financing Commitments to be satisfied, including using reasonable best efforts in which cooperation may include:
(i) assisting with, and furnishing information for the purposes of, with the preparation of customary prospectuses (including any pro forma financial information and any information required under Article 18(2) of Commission Delegated Regulation (EU) 2019/980)Offering Documents, offering documentsregistration statements, syndication documents and materials, including bank confidential information memoranda and private placement memoranda, lender and investor presentations, rating agency materials and presentations and other customary marketing materials similar documents required in connection with the Financing (all such documents and materials, collectively, the “Marketing Documents”) (it being understood and agreed that the Marketing Documents shall include (or otherwise be subject to) any customary exculpation language, as the case may be, with respect to the Company, its Affiliates and their respective Representatives), Debt Financing,
(ii) preparing and furnishing to Parent and the Parent Debt Financing Parties as promptly as reasonably practicable financial statements all Required Information and operational all other pertinent information (including consolidated financial statements for interim periods up until the Closing Date) that can be prepared without undue burden with respect and disclosures relating to the Company and its Subsidiary subsidiaries (including their businesses, operations, financial projections and prospects) as is may be reasonably requested by Parent, customary to assist in preparation of the Offering Documents and reasonably necessary to consummate the Debt Financing and identifying any portion of such information that constitutes material non-public information,
(iii) having the Company designate members of senior management of the Company to execute customary authorization letters with respect to Offering Documents and participate in a reasonable number of presentations, road shows, due diligence sessions, drafting sessions and sessions with ratings agencies in connection with the Debt Financing, including direct contact between such senior management of the Company and its subsidiaries and the Debt Financing Parties and other potential lenders in the Debt Financing,
(iv) assisting Parent in obtaining any corporate credit and family ratings from any ratings agencies contemplated by the Debt Financing Commitments, including assisting with the preparation of rating agency presentations,
(v) requesting and using reasonable best efforts to obtain customary accountant’s comfort letters (including “negative assurance”) and consents from the “Company’s independent auditors with respect to the Required Information”), ,
(iiivi) assisting in the preparation of schedules to of, and executing and delivering, definitive financing documents, including guarantee and collateral agreements documents and providing customary closing certificates as may be required in connection with the Debt Financing and other customary documents as may be reasonably requested by providing information of the Company Entities Parent,
(vii) facilitating actions reasonably required to be made available on such schedules for purposes of the arrangement or consummation of the Financing, (iv) subject to any contractual agreement in effect, facilitating the pledging of collateral for the Debt Financing,
(viii) assisting the Debt Financing Parties in benefiting from the existing lending relationships of the Company and its subsidiaries,
(ix) requesting and using reasonable best efforts to obtain from the Company’s existing lenders such customary documents in connection with refinancings as reasonably requested by Parent in connection with the Debt Financing and collateral arrangements, which shall not be required to be delivered or effective until at or promptly following the Effective Timeincluding customary payoff letters, (v) subject to any contractual agreement in effect, obtaining the Payoff Letter, and the related lien releases, releases and instruments of termination or discharge, as applicable, required pursuant to Section 6.12, in each case which shall provide that, if sufficient funds are received by the financing sources under the Credit Agreement in order to pay off in full all obligations ,
(other than the Excluded Obligations) in connection therewith or secured thereby, such release, termination and/or discharge shall be effective, and (vix) furnishing Parent as promptly as reasonably practical (and at least three (3) business days prior to the Closing Date) Debt Financing Parties with all documentation and other information related reasonably determined by the Debt Financing Parties to be required by Governmental Authorities with respect to the Company and its Subsidiary required by regulatory authorities Debt Financing under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT ActUniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, that has been as amended,
(xi) cooperating with Parent, and taking all corporate actions, subject to the occurrence of the Closing, reasonably requested in writing by Parent to permit the consummation of the Debt Financing,
(xii) cooperating with Parent to obtain such legal opinions, surveys and title insurance as reasonably requested by Parent or its any of the Debt Financing Sources at least ten (10) business days prior to the Closing Date. The Company hereby consents to the use of its and its Subsidiary’s logos Parties in connection with the Financing so long as Debt Financing, and
(xiii) providing monthly financial statements (to the extent the Company customarily prepares such logos are used solely (ifinancial statements) in a manner that is not intended to or that is not reasonably likely to harm or disparage the Company or its Subsidiary or form and within the reputation or goodwill of the Company or its Subsidiary and (ii) solely in connection with a description of time such statements are customarily prepared by the Company; provided, its business and products or the Merger.
however, that (bA) Notwithstanding the requirements of Section 6.16(a) or anything nothing in this Agreement to the contrary, (iSection 4.05(b) neither the Company nor any of its Affiliates or their respective Representatives shall be required to enter into, approve or perform (or commit to enter into, approve or perform) any certificate, document, agreement, or instrument, in each case which will be effective prior to the Effective Time, (ii) nothing herein shall require such cooperation contemplated thereby to the extent it would interfere unreasonably with the business or operations of the Company or any of its Affiliates or their respective Affiliatessubsidiaries, (iiiB) none of neither the Company nor any of its Affiliates or their respective Representatives, will subsidiaries shall be required to (1) pay incur any liability (including any liability for Taxes, whether by withholding or commit otherwise) that is not contingent upon the Closing or, without limitation of the foregoing, execute any definitive financing documents (except the authorization letter delivered pursuant to pay the foregoing clause (iii)) prior to the Closing or any commitment other agreement, certificate, document or other feeinstrument that would be effective prior to the Closing, (2) waive or amend any terms of this Agreement or agree to pay any fees or reimburse or incur any costs or expenses or incur any other liability (including any guarantee, indemnity or pledge) in connection with the Financing or the Marketing Documents prior to the Effective TimeClosing for which it has not received prior reimbursement or is not otherwise indemnified by or on behalf of Parent, (3) provide give any financial data other than indemnities that are effective prior to the Required InformationClosing, or (4) provide any legal opinion or reliance letters or any certificate (in the case of the Company or its Subsidiary that would be required to be delivered prior to the Effective Time), comfort letter or opinion of any of its Representatives, (iv) nothing herein will involve any binding commitment by the Company, any of its Affiliates or any of their respective Representatives which commitment is not conditioned on the Effective Time and does not terminate without liability to the Company, its Affiliates and their respective Representatives upon the termination of this Agreement, and (v) nothing herein will require the Company, any of its Affiliates or any of their respective Representatives to provide any information or take any action, the disclosure or taking of which would violate is prohibited under applicable Legal Requirements, any fiduciary duty, any Contract law or obligation of confidentiality owing to a third partyis legally privileged, or jeopardize the protection of the attorney-client privilege (or similar protections5) held by the Company or any of its Affiliates; provided that, if the Company does not provide or cause its Representatives to provide such access or such information in reliance on the foregoing, then the Company shall (1) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1) any Representative of the Company or its Subsidiary to deliver any certificate or opinion or take any other action under this Section 6.16 that could reasonably be expected to result in personal liability to such Representative; (2) the Board of Directors (or any committee or subcommittee thereof) or the board of directors, managers, managing member or any similar controlling body of any Subsidiary of the Company to approve (or otherwise take any corporate or similar action with respect to) any financing (including the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) the Company and its Subsidiary to take any action that would will conflict with or violate its organizational or governance documents or any applicable Legal Requirements, laws or result in the contravention of, or that could reasonably be expected to would result in a violation of or breach of, or default under, any agreement to which the Company or any of its Subsidiary subsidiaries is a party.
, (cC) Subject the requirement to any applicable Legal Requirementsprovide the assistance described in clauses (vi), all non-public (vii), (ix) and (xi) above shall be conditioned on the actual occurrence of the Closing. In addition, no action, liability or other confidential information provided by obligation of the Company, any of its Subsidiary subsidiaries or any of their respective Representatives pursuant to this Agreement any certificate, agreement, arrangement, document or instrument relating to the Debt Financing will be kept confidential in accordance with effective until the Confidentiality AgreementClosing, except that Parent and Purchaser will be permitted to disclose such (D) the only financial information to any Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties to the Financing and to any underwriters, initial purchasers or placement agents in connection with the Financing (and, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; or (ii) are subject to other confidentiality undertakings reasonably satisfactory to the Company and of which the Company is a beneficiary.
(d) If the Closing does not occur, promptly upon request by the Company, Parent will reimburse the Company for any documented and reasonable out-of-pocket costs and expenses (including attorneys’ fees) incurred by the Company or its Subsidiary subsidiaries shall be required to deliver shall be the Required Information. Nothing in connection with the cooperation this Agreement will require (y) any officer or Representative of the Company and its Subsidiary contemplated by this Section 6.16 (it being understood and agreed that the reimbursement set forth in this Section 6.16(d) shall not apply to any fees, costs, and expenses incurred by, or on behalf of, the Company, its Subsidiary or any of its Representatives subsidiaries to deliver any certificate or opinion or take any other action that would reasonably be expected to result in connection with its ordinary course financial reporting requirements personal liability to such officer or in the provision of data that, in each case, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding this Section 6.16).
(e) The Parent shall indemnify, defend and hold harmless the Company Entities and their respective Representatives from and against any and all losses, damages, claims, interest, awards, judgments, penalties, costs and expenses suffered or incurred by any of them in connection with the Financing (including any action taken in accordance with this Section 6.16) and costs and expenses incurred in defending against the foregoing, except to the extent such losses, damages, claims, costs or expenses arise from the willful breach of this Agreement by the Company, as finally determined by a court of competent jurisdictionRepresentative, or from fraud on (z) the part members of the Company’s Board of Directors as of the date hereof to approve any financing or definitive agreements related thereto prior to the Closing.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Vivint Solar, Inc.), Agreement and Plan of Merger (Sunedison, Inc.)
Financing Cooperation. Upon the request of Parent, the Company shall use its commercially reasonable efforts to provide reasonable cooperation in connection with Parent’s efforts to arrange and consummate any amendment to, or replacement or supplement of, Parent’s credit facilities (“Debt Financing”); provided that such cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries. Such commercially reasonable efforts shall include, to the extent reasonably requested by Parent, commercially reasonable efforts to: (a) Subject make available to Section 6.16(bprospective lenders, on a customary and reasonable basis and upon reasonable notice, appropriate personnel of the Company and its Subsidiaries, (b) provide, as promptly as reasonably practicable, information relating to the Company and its Subsidiaries to any financing institutions contemplated to arrange and/or provide all or any portion of the Debt Financing (the “Financing Sources”) (including information to be used in the preparation of a customary information package regarding the business, operations, financial condition, projections and prospects of the Company and its Subsidiaries customary for financings similar to the Debt Financing) to the extent reasonably requested by Parent and/or the Financing Sources to assist in preparation of customary offering or information documents to be used for the completion of the Debt Financing, (c) assist in the obtaining of customary payoff letters and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of the Existing Credit Facilities and releasing Liens and the pledges of collateral securing such Existing Credit Facilities, in each case to take effect at the Effective Time (it being understood that the Company shall have no obligation to pay or discharge any such indebtedness prior to the Effective Time), prior to Closing or termination of this Agreement, the Company shall, and shall cause its Subsidiaries and their respective Representatives to, use reasonable best efforts to reasonably (d) cooperate with and reasonably assist Parent, respect to matters relating to pledges of collateral to take effect at the Parent’s request, sole cost and expense, in connection with arranging, obtaining and syndicating any Financing and causing the conditions in the Financing Documents and any commitment letters entered into Effective Time in connection with such Financing financing, (e) assist Parent in obtaining customary legal opinions to be satisfied, including using reasonable best efforts in (i) assisting with, and furnishing information for the purposes of, the preparation of customary prospectuses (including any pro forma financial information and any information required under Article 18(2) of Commission Delegated Regulation (EU) 2019/980), offering documents, syndication documents and materials, including bank information memoranda and private placement memoranda, lender and investor presentations, rating agency materials and presentations and other customary marketing materials delivered in connection with such financing and (f) assist Parent in obtaining customary comfort letters and consents of the Financing (all such documents independent accountants of the Company and materialsits Subsidiaries, collectivelyincluding with respect to the auditor consents in connection with any filings with the SEC. Anything in this Section 5.13 to the contrary notwithstanding, until the “Marketing Documents”) (it being understood and agreed that Effective Time occurs, neither the Marketing Documents shall include (Company nor any of its Subsidiaries, nor any of their respective officers or otherwise be subject to) any customary exculpation languagedirectors, as the case may be, with respect shall (i) be required to the Company, its Affiliates and their respective Representatives)pay any commitment or other similar fee, (ii) furnishing to the Parent as promptly as reasonably practicable financial statements and operational information (including consolidated financial statements for interim periods up until the Closing Date) that can be prepared without undue burden with respect to the Company and its Subsidiary as is reasonably requested by Parent (the “Required Information”), (iii) assisting in the preparation of schedules to collateral agreements by providing information of the Company Entities required to be made available on such schedules for purposes of the arrangement enter into any definitive agreement or consummation of the Financing, (iv) subject to have any contractual agreement in effect, facilitating the pledging of collateral for the Financing, which shall not be required to be delivered liability or effective until at or promptly following the Effective Time, (v) subject to any contractual agreement in effect, obtaining the Payoff Letter, and the related lien releases, and instruments of termination or discharge, as applicable, required pursuant to Section 6.12, in each case which shall provide that, if sufficient funds are received by the financing sources obligation under the Credit Agreement in order to pay off in full all obligations (other than the Excluded Obligations) in connection therewith or secured thereby, such release, termination and/or discharge shall be effective, and (vi) furnishing Parent as promptly as reasonably practical (and at least three (3) business days prior to the Closing Date) with all documentation and other information related to the Company and its Subsidiary required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, that has been reasonably requested in writing by Parent or its Financing Sources at least ten (10) business days prior to the Closing Date. The Company hereby consents to the use of its and its Subsidiary’s logos in connection with the Financing so long as such logos are used solely (i) in a manner that is not intended to or that is not reasonably likely to harm or disparage the Company or its Subsidiary or the reputation or goodwill of the Company or its Subsidiary and (ii) solely in connection with a description of the Company, its business and products or the Merger.
(b) Notwithstanding the requirements of Section 6.16(a) or anything in this Agreement to the contrary, (i) neither the Company nor any of its Affiliates or their respective Representatives shall be required to enter into, approve or perform (or commit to enter into, approve or perform) any certificate, document, agreement, or instrument, in each case which will be effective prior credit agreement or any related document or any other agreement or document related to the Effective TimeDebt Financing, (iiiii) nothing herein shall require cooperation contemplated thereby unless promptly reimbursed by Parent, be required to the extent it would interfere unreasonably incur any other expenses in connection with the business Debt Financing or operations (iv) be required to take any action in his/her capacity as a director of the Company or any of its Affiliates or their respective Affiliates, (iii) none of the Company nor any of its Affiliates or their respective Representatives, will be required to (1) pay or commit to pay any commitment or other fee, (2) reimburse or incur any costs or expenses or incur any other liability (including any guarantee, indemnity or pledge) in connection Subsidiaries with the Financing or the Marketing Documents prior respect to the Effective TimeDebt Financing. Parent shall promptly, (3) provide any financial data other than the Required Information, or (4) provide any legal opinion or reliance letters or any certificate (in the case of the Company or its Subsidiary that would be required to be delivered prior to the Effective Time), comfort letter or opinion of any of its Representatives, (iv) nothing herein will involve any binding commitment by the Company, any of its Affiliates or any of their respective Representatives which commitment is not conditioned on the Effective Time and does not terminate without liability to the Company, its Affiliates and their respective Representatives upon the termination of this Agreement, and (v) nothing herein will require the Company, any of its Affiliates or any of their respective Representatives to provide any information or take any action, the disclosure or taking of which would violate applicable Legal Requirements, any fiduciary duty, any Contract or obligation of confidentiality owing to a third party, or jeopardize the protection of the attorney-client privilege (or similar protections) held by the Company or any of its Affiliates; provided that, if the Company does not provide or cause its Representatives to provide such access or such information in reliance on the foregoing, then the Company shall (1) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1) any Representative of the Company or its Subsidiary to deliver any certificate or opinion or take any other action under this Section 6.16 that could reasonably be expected to result in personal liability to such Representative; (2) the Board of Directors (or any committee or subcommittee thereof) or the board of directors, managers, managing member or any similar controlling body of any Subsidiary of the Company to approve (or otherwise take any corporate or similar action with respect to) any financing (including the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) the Company and its Subsidiary to take any action that would conflict with or violate its organizational or governance documents or any applicable Legal Requirements, or result in the contravention of, or that could reasonably be expected to result in a violation of breach of, or default under, any agreement to which the Company or its Subsidiary is a party.
(c) Subject to any applicable Legal Requirements, all non-public or other confidential information provided by the Company, its Subsidiary or any of their respective Representatives pursuant to this Agreement will be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Purchaser will be permitted to disclose such information to any Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties to the Financing and to any underwriters, initial purchasers or placement agents in connection with the Financing (and, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; or (ii) are subject to other confidentiality undertakings reasonably satisfactory to the Company and of which the Company is a beneficiary.
(d) If the Closing does not occur, promptly upon request by the Company, Parent will reimburse the Company for any all reasonable and documented and reasonable out-of-out of pocket costs and expenses (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiary Subsidiaries or their respective Representatives in connection with the cooperation of the Company their respective obligations pursuant to, and its Subsidiary contemplated by in accordance with, this Section 6.16 (it being understood and agreed that the reimbursement set forth in this Section 6.16(d) shall not apply to any fees, costs5.13, and expenses incurred by, or on behalf of, shall indemnify and hold harmless the Company, its Subsidiary or any of its Representatives in connection with its ordinary course financial reporting requirements or in the provision of data that, in each case, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding this Section 6.16).
(e) The Parent shall indemnify, defend and hold harmless the Company Entities Subsidiaries and their respective Representatives from and against any and all damages, losses, damagescosts, claims, interest, awards, judgments, penalties, costs and liabilities or expenses suffered or incurred by any of them in connection with the arrangement of the Debt Financing and any information used in connection therewith (including other than information provided by the Company or any action taken in accordance with this Section 6.16of its Subsidiaries) and costs and expenses incurred in defending against the foregoing, except to the extent such losses, damages, claims, costs or expenses arise from the willful breach of this Agreement all other actions taken by the Company, as finally determined by its Subsidiaries and their respective Representatives pursuant to this Section 5.13. Parent and Merger Sub shall keep the Company informed on a court of competent jurisdiction, or from fraud on the part reasonably current basis of the Companystatus of its efforts to arrange and consummate any Debt Financing.
Appears in 2 contracts
Samples: Merger Agreement (Metals Usa Holdings Corp.), Merger Agreement (Reliance Steel & Aluminum Co)
Financing Cooperation. (a) Subject to Section 6.16(b), prior to Closing or termination of this Agreement, the The Company shall, and shall cause its Subsidiaries and their respective Representatives to, use reasonable best efforts to reasonably assist and cooperate with and reasonably assist Parent, at the Parent upon Parent’s request, sole cost and expense, request in connection with arrangingXxxxxx’s payoff, obtaining termination and syndicating any Financing and causing the conditions in the Financing Documents and any commitment letters entered into in connection with such Financing to be satisfied, including using reasonable best efforts in (i) assisting with, and furnishing information for the purposes of, the preparation discharge of customary prospectuses (including any pro forma financial information and any information required under Article 18(2) of Commission Delegated Regulation (EU) 2019/980), offering documents, syndication documents and materials, including bank information memoranda and private placement memoranda, lender and investor presentations, rating agency materials and presentations and other customary marketing materials in connection with the Financing (all such documents and materials, collectively, the “Marketing Documents”) (it being understood and agreed that the Marketing Documents shall include (or otherwise be subject to) any customary exculpation language, as the case may be, with respect to the Company, its Affiliates ’s outstanding Indebtedness identified by Parent in writing and their respective Representatives), (ii) furnishing to the Parent as promptly as reasonably practicable financial statements and operational information (including consolidated financial statements for interim periods up until the Closing Date) that can be prepared without undue burden with respect delivered to the Company and its Subsidiary as is reasonably requested by Parent at least fifteen (15) days prior to the “Required Information”), (iii) assisting in the preparation of schedules to collateral agreements by providing information of date on which the Company Entities required to be made available on such schedules for purposes of the arrangement or consummation of the Financing, (iv) subject to any contractual agreement in effect, facilitating the pledging of collateral for the Financing, which shall not would be required to be delivered deliver a notice of redemption or effective until at prepayment to the trustee, agent or promptly following the Effective Time, (v) subject to any contractual agreement in effect, obtaining the Payoff Letter, and the related lien releases, and instruments of termination or dischargesimilar Person, as applicable, under the applicable Company Existing Debt Agreement, including by (a) executing and delivering prepayment notices (or obtaining a waiver of the requirement to deliver such prepayment notice) in accordance with and as required pursuant by the documentation governing such Indebtedness that Parent will seek to Section 6.12repay at the Closing, and (b) delivering (or causing to be delivered) to Parent (preceded by drafts of the same at least three Business Days prior to the Closing) executed payoff letters (or similar documents) in each case customary form reasonably acceptable to Parent in respect of such Indebtedness, which shall provide thatfor the aggregate amount required to be paid for the satisfaction of such Indebtedness and, if sufficient funds are received by upon receipt of the financing sources under amount specified and to the Credit Agreement in order to pay off in full extent applicable, release and termination of all obligations (other than the Excluded Obligations) Encumbrances and guarantees in connection therewith or secured thereby, such release, termination and/or discharge shall be effective, and (vi) furnishing Parent as promptly as reasonably practical (and at least three (3) business days prior to the Closing Date) with all documentation and other information related to the Company and its Subsidiary required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, that has been reasonably requested in writing by Parent or its Financing Sources at least ten (10) business days prior to the Closing Date. The Company hereby consents to the use of its and its Subsidiary’s logos in connection with the Financing so long as such logos are used solely (i) in a manner that is not intended to or that is not reasonably likely to harm or disparage the Company or its Subsidiary or the reputation or goodwill authorization of the Company or its Subsidiary designee to file such customary collateral releases to be effected at the Closing, including financing termination statements and other customary instruments and filing documents necessary to reflect the release of such Encumbrances and (iic) solely in connection with a description of the Company, its business and products or the Merger.
(b) Notwithstanding the requirements of Section 6.16(a) or anything in this Agreement providing such other customary cooperation relating to the contrary, foregoing that Parent may reasonably request. Parent acknowledges and agrees that Parent’s obligation (i) neither the Company nor or those of any of its Affiliates (including Merger Sub)) to consummate the Transactions are not in any way contingent upon or their respective Representatives shall be required to enter intootherwise subject to, approve or perform (or commit to enter into, approve or perform) any certificate, document, agreement, or instrument, in each case which will be effective prior and there is no condition to the Effective TimeClosing requiring, (iiA) nothing herein shall require cooperation contemplated thereby to the extent it would interfere unreasonably with consummation of any payoff, termination or discharge (in whole or in part) of any of the business Company’s outstanding Indebtedness or operations of (B) the obtaining (whether by Parent, the Company or any of its Affiliates or their respective AffiliatesAffiliates (including, (iii) none of the Company nor any of its Affiliates or their respective Representatives, will be required to (1) pay or commit to pay any commitment or other fee, (2) reimburse or incur any costs or expenses or incur any other liability (including any guarantee, indemnity or pledge) in connection with the Financing or the Marketing Documents prior to the Effective Time, (3) provide any financial data other than the Required Information, or (4) provide any legal opinion or reliance letters or any certificate (in the case of Parent, Merger Sub)) of any consents, amendments or waivers from the requisite lenders, noteholders, agents, trustees or similar Persons, as applicable, under the applicable Company Existing Debt Agreement that are required thereunder in order to permit the consummation of the Transactions or its Subsidiary that would be required to be delivered prior to the Effective Time)effectuate any payoff, comfort letter termination or opinion discharge (in whole or in part) of any of its Representatives, (iv) nothing herein will involve any binding commitment by the Company, any of its Affiliates or any of their respective Representatives which commitment is not conditioned on the Effective Time and does not terminate without liability to the Company, its Affiliates and their respective Representatives upon the termination of this Agreement, and (v) nothing herein will require the Company, any of its Affiliates or any of their respective Representatives to provide any information or take any action, the disclosure or taking of which would violate applicable Legal Requirements, any fiduciary duty, any Contract or obligation of confidentiality owing to a third party, or jeopardize the protection of the attorney-client privilege (or similar protections) held by the Company or any of its Affiliates; provided that, if the Company does not provide or cause its Representatives to provide such access or such information in reliance on the foregoing, then the Company shall (1) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1) any Representative of the Company or its Subsidiary to deliver any certificate or opinion or take any other action under this Section 6.16 that could reasonably be expected to result in personal liability to such Representative; (2) the Board of Directors (or any committee or subcommittee thereof) or the board of directors, managers, managing member or any similar controlling body of any Subsidiary of the Company to approve (or otherwise take any corporate or similar action with respect to) any financing (including the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) the Company and its Subsidiary to take any action that would conflict with or violate its organizational or governance documents or any applicable Legal Requirements, or result in the contravention of, or that could reasonably be expected to result in a violation of breach of, or default under, any agreement to which the Company or its Subsidiary is a party’s outstanding Indebtedness.
(c) Subject to any applicable Legal Requirements, all non-public or other confidential information provided by the Company, its Subsidiary or any of their respective Representatives pursuant to this Agreement will be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Purchaser will be permitted to disclose such information to any Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties to the Financing and to any underwriters, initial purchasers or placement agents in connection with the Financing (and, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; or (ii) are subject to other confidentiality undertakings reasonably satisfactory to the Company and of which the Company is a beneficiary.
(d) If the Closing does not occur, promptly upon request by the Company, Parent will reimburse the Company for any documented and reasonable out-of-pocket costs and expenses (including attorneys’ fees) incurred by the Company or its Subsidiary in connection with the cooperation of the Company and its Subsidiary contemplated by this Section 6.16 (it being understood and agreed that the reimbursement set forth in this Section 6.16(d) shall not apply to any fees, costs, and expenses incurred by, or on behalf of, the Company, its Subsidiary or any of its Representatives in connection with its ordinary course financial reporting requirements or in the provision of data that, in each case, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding this Section 6.16).
(e) The Parent shall indemnify, defend and hold harmless the Company Entities and their respective Representatives from and against any and all losses, damages, claims, interest, awards, judgments, penalties, costs and expenses suffered or incurred by any of them in connection with the Financing (including any action taken in accordance with this Section 6.16) and costs and expenses incurred in defending against the foregoing, except to the extent such losses, damages, claims, costs or expenses arise from the willful breach of this Agreement by the Company, as finally determined by a court of competent jurisdiction, or from fraud on the part of the Company.
Appears in 2 contracts
Samples: Merger Agreement (Boeing Co), Merger Agreement (Boeing Co)
Financing Cooperation. (a) Subject to Section 6.16(b), prior to Closing or termination of this Agreement, the The Company shall, and shall cause its Subsidiaries subsidiaries and its and their respective Representatives to, use its and their respective commercially reasonable best efforts to provide such cooperation as may be reasonably cooperate with and reasonably assist Parent, at the Parent’s request, sole cost and expense, requested by Parent or Merger Sub in connection with arranging, obtaining and syndicating any Financing and causing the conditions in the Financing Documents or the Equity Financing made by Parent or any of its subsidiaries and any commitment letters entered into in connection with such SEC filings related to the Financing or the Equity Financing to be satisfiedmade by Parent, including including, as applicable, by: (i) using reasonable best efforts to, upon reasonable advance notice, cause the Company’s senior management to participate in (i) assisting witha reasonable number of due diligence meetings, drafting sessions, rating agency presentations, lender meetings, investor road shows and furnishing information meetings with parties acting as arrangers, bookrunners, underwriters, initial purchasers, placement agents and/or other lenders and investors for the purposes ofFinancing or the Equity Financing; (ii) providing such customary historical financial and other customary pertinent information with respect to the Company and its subsidiaries as may be reasonably requested by Parent for use in connection with the Financing or the Equity Financing and 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 with respect to the preparation of customary prospectuses Company and its subsidiaries; (including any iii) providing information regarding the Company and its subsidiaries reasonably necessary to assist Parent in preparing pro forma financial information statements if Parent determines such pro forma financial statements are legally required or customary in connection with the Financing or the Equity Financing or any other SEC filing required to be made by the Parent, it being understood that the Company need only assist in the preparation thereof, but shall not be required to independently prepare any separate pro forma financial statements and any information shall not be required under Article 18(2to change its fiscal year; (iv) providing reasonable assistance to the Parent and its subsidiaries in connection with the preparation by the Parent of Commission Delegated Regulation (EU) 2019/980)SEC filings to be made by the Parent, offering documentsmemoranda, syndication documents and materials, including bank information memoranda and private placement memoranda, prospectuses, prospectus supplements, registration statements, bank confidential information memoranda, lender and investor presentations, road show materials, rating agency materials and presentations and other customary marketing materials similar documents and materials, in each case, under this subsection (iv), in connection with the Financing (all such documents or the Equity Financing and materialsreasonably assisting with the preparation of the definitive documentation for the Financing or the Equity Financing, collectivelyincluding by providing information reasonably necessary for the completion of any schedules thereto, the “Marketing Documents”) (it being understood and agreed that the Marketing Documents shall include (or otherwise be subject to) any customary exculpation language, as the in each case may be, with respect to the Companyextent, its Affiliates and their respective Representatives), (ii) furnishing solely to the Parent as promptly as reasonably practicable financial statements and operational extent, such materials relate to information (including consolidated financial statements for interim periods up until the Closing Date) that can be prepared without undue burden with respect to concerning the Company and its Subsidiary subsidiaries; (v) using commercially reasonable efforts to cause Deloitte & Touche LLP to cooperate with Parent, including by participating in accounting due diligence sessions upon reasonable advance notice, using reasonable best efforts to obtain the consent of, and facilitate the delivery of, customary comfort letters (including as is reasonably requested by Parent to customary negative assurance) from, Deloitte & Touche LLP (the “Required Information”), (iii) assisting in the preparation of schedules to collateral agreements including by providing information customary management letters and requesting legal letters to obtain such consent) if reasonably necessary or customary for Parent’s use of the financial statements of the Company Entities required and its subsidiaries in any marketing or offering materials to be made available on such schedules for purposes of the arrangement or consummation of the Financing, (iv) subject to any contractual agreement in effect, facilitating the pledging of collateral for the Financing, which shall not be required to be delivered or effective until at or promptly following the Effective Time, (v) subject to any contractual agreement in effect, obtaining the Payoff Letter, and the related lien releases, and instruments of termination or discharge, as applicable, required pursuant to Section 6.12, in each case which shall provide that, if sufficient funds are received by the financing sources under the Credit Agreement in order to pay off in full all obligations (other than the Excluded Obligations) used in connection therewith with the Financing or secured thereby, such release, termination and/or discharge shall be effective, and the Equity Financing; (vi) cooperating reasonably with any customary due diligence requests by Parent, its Financing Sources and their respective legal counsel; (vii) reasonably assisting Parent in obtaining corporate, corporate family, credit, facility and securities ratings from rating agencies; (viii) furnishing Parent as promptly as reasonably practical (and in any event at least three (3) business days prior to the Closing Date) with all documentation and other information related reasonably requested in writing at least ten (10) Business Days prior to the Company and its Subsidiary Closing Date by parties acting as lead arrangers, agents or underwriters, as applicable, required by regulatory authorities any Governmental Entity in connection with the Financing or the Equity Financing under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT ActU.S. Patriot Act and (ix) delivering notices of prepayment within the time periods required by the Company Credit Agreements and using reasonable best efforts to obtain customary payoff letters, that has been reasonably requested in writing by Parent or its Financing Sources at least ten (10) business days prior lien terminations and instructions of discharge to the Closing Dateextent, and in the manner contemplated by, this Section 6.14 and Section 6.15 hereof, and give any other necessary notices to allow for the payoff, discharge and termination of all indebtedness required by this Agreement to be repaid and terminated (subject to the provisions of this Section 6.14 and Section 6.15). The Company hereby consents to the use of its the trademarks, service marks and logos of the Company and its Subsidiary’s logos subsidiaries in connection with the arrangement of the Financing so long as or the Equity Financing in connection with the Merger if such trademarks, service marks and logos are used solely (i) in a manner that is not intended to or that is not reasonably likely to harm or disparage the Company or any of its Subsidiary subsidiaries or the reputation or goodwill of the Company or its Subsidiary and (ii) solely in connection with a description of the Company, its business and products or the Merger.
(b) Notwithstanding the requirements of Section 6.16(a) or anything in this Agreement to the contrary, (i) neither the Company nor any of its Affiliates subsidiaries or any of their respective Representatives logos and on such other customary terms and conditions as the Company shall be required to enter intoreasonably impose. Notwithstanding the foregoing, approve or perform (or commit to enter into, approve or perform) any certificate, document, agreement, or instrument, in each case which will be effective prior to the Effective Time, (ii) nothing herein shall require such cooperation contemplated thereby to the extent it would interfere (i) unreasonably with disrupt the ordinary conduct of the business or operations of the Company or any of its Affiliates or their respective Affiliatessubsidiaries, (iiiii) none require the Company or its subsidiaries to agree to pay any fees, reimburse any expenses or otherwise incur any actual or potential liability or give any indemnities prior to the Effective Time unless Parent reimburses or is required to reimburse or indemnify the Company or its subsidiaries pursuant to this Agreement or otherwise agrees to do so, provided, however, that, with respect to any series of Company Notes or the Company Credit Agreements, neither the Company nor any of its Affiliates or their respective Representatives, will subsidiaries shall be required to make any payments of outstanding principal, accrued and unpaid interest and/or applicable premiums or consent payments (1other than with respect to scheduled payments of principal and interest) pay unless the Parent has irrevocably deposited funds sufficient to cover such amounts with the applicable trustee or commit to pay any commitment or other feeagent, (2iii) reimburse require the Company or incur its subsidiaries to take any costs action that would reasonably be expected, in the reasonable judgment of the Company after consultation with its legal counsel, to conflict with, or expenses result in any violation or incur breach of, any applicable (A) laws or orders or (B) obligations of confidentiality (not created in contemplation hereof) binding on the Company or its subsidiaries (provided that in the event that the Company or its subsidiaries do not provide information in reliance on the exclusion in this clause (B), the Company and its subsidiaries shall provide notice to Parent promptly that such information is being withheld (but solely if providing such notice would not violate such obligation of confidentiality)), (iv) require the Company or its subsidiaries to (A) subject to the requirements of Section 6.14(a)(v) and Section 6.15, pass resolutions or consents, approve or authorize the execution of, or execute any document, agreement, certificate or instrument or take any other liability corporate action with respect to the Financing or the Equity Financing that is not contingent on the Closing or that would be effective prior to the Effective Time or (including B) provide or cause its legal counsel to provide any guarantee, indemnity or pledge) legal opinions that are not required in connection with the Financing or the Marketing Documents prior to the Effective Timetransactions contemplated by Section 6.15, (3v) provide any financial data other than the Required Information, or (4) provide any legal opinion or reliance letters or any certificate (in the case of require the Company or its Subsidiary that would be required to be delivered prior to the Effective Time), comfort letter or opinion of prepare separate financial statements for any of its Representativessubsidiaries, financial statements pursuant to Rules 3-10 (ivother than assisting with the preparation of a footnote in Parent’s financial statements) nothing herein will involve any binding commitment by the Company, any or 3-16 of its Affiliates Regulation S-X or any of their respective Representatives which commitment is not conditioned on the Effective Time new compensation information. Parent acknowledges and does not terminate without liability agrees that any access or information contemplated to the Company, its Affiliates and their respective Representatives upon the termination of this Agreement, and (v) nothing herein will require the Company, any of its Affiliates or any of their respective Representatives to provide any information or take any action, the disclosure or taking of which would violate applicable Legal Requirements, any fiduciary duty, any Contract or obligation of confidentiality owing to a third party, or jeopardize the protection of the attorney-client privilege (or similar protections) held be provided by the Company or any of its Affiliates; subsidiaries pursuant to this Section 6.14 shall, to the extent such information constitutes material non-public information of the Company, only be provided thatto other Persons, including any Financing Sources, if such other Person affirmatively agrees to maintain the confidentiality of such information pursuant to a customary confidentiality agreement and to comply with all federal and state securities laws and regulations applicable to such information or (vi) require the Company does not provide or cause its Representatives any subsidiary thereof to provide incur additional indebtedness (including guarantees), such access that the Company is unable to satisfy any applicable debt incurrence requirement at Closing in the merger covenant in the Indentures.
(b) On or such information in reliance on prior to the foregoingsecond (2nd) Business Day prior to the Closing Date, then the Company shall use its reasonable best efforts to cause the agent under each Company Credit Agreement to deliver to Parent a copy of a draft payoff letter (1subject to delivery of funds as arranged by Parent) with respect to each Company Credit Agreement (each, a “Payoff Letter” and collectively, the “Payoff Letters”), in customary form, which Payoff Letters shall (i) indicate the total amount required to be paid to fully satisfy all principal, interest, prepayment premiums, penalties, breakage costs and any other monetary obligations then due and payable under the relevant Company Credit Agreement as of the anticipated Closing Date (and the daily accrual thereafter) (such amount payable with respect to any Payoff Letter and Company Credit Agreement, the “Payoff Amount”), (ii) state that upon receipt of the Payoff Amount under each such Payoff Letter, the related Company Credit Agreement and all related loan documents shall be terminated (but excluding any contingent obligations, including, without limitation, indemnification obligations, that in any such case are not then due and payable and that by their terms are to survive the termination of any Company Credit Agreement and the related loan documents), and (iii) provide a written notice that all Liens and all guarantees in connection therewith relating to Parent stating that it is withholding such access or such information the assets and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1) any Representative properties of the Company or any of its Subsidiary subsidiaries securing such obligations shall be, released and terminated upon the payment of each Payoff Amount on the Closing Date (subject to deliver any certificate or opinion or take any delivery of funds as arranged by Parent and the filing of appropriate UCC-3 termination statements and other action under this Section 6.16 that could reasonably be expected to result termination filings). In furtherance of, and not in personal liability to such Representative; (2) the Board of Directors (or any committee or subcommittee thereof) or the board of directors, managers, managing member or any similar controlling body of any Subsidiary limitation of the Company covenants set forth in Section 6.18, Parent shall be unconditionally obligated to approve (or otherwise take any corporate or similar action with respect to) any financing (including provide to the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) the Company and its Subsidiary to take any action that would conflict with or violate its organizational or governance documents or any applicable Legal RequirementsCompany, or result in to cause the contravention payment of, or that could reasonably be expected to result in a violation of breach of, or default under, any agreement to which the Company or its Subsidiary is a partyPayoff Amount required under each Payoff Letter substantially simultaneously with the Closing.
(c) Subject to any applicable Legal Requirements, all non-public or other confidential information provided by the Company, its Subsidiary or any of their respective Representatives pursuant to this Agreement will be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Purchaser will be permitted to disclose such information to any Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties to the Financing and to any underwriters, initial purchasers or placement agents in connection with the Financing (and, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; or (ii) are subject to other confidentiality undertakings reasonably satisfactory to the Company and of which the Company is a beneficiary.
(d) If the Closing does not occurshall, promptly upon written request by the Company, Parent will reimburse the Company for any all reasonable and documented and reasonable out-of-pocket costs costs, fees and expenses (including attorneys’ feesfees and expenses) incurred by to the Company or its Subsidiary in connection with the cooperation of the Company and its Subsidiary contemplated by this Section 6.16 (it being understood and agreed that the reimbursement set forth in this Section 6.16(d) shall not apply to any fees, extent such costs, fees and expenses are incurred by, or on behalf of, the Company, its Subsidiary or any of its Representatives in connection with its ordinary course financial reporting requirements or in the provision of data that, in each case, was already prepared or was being prepared by the Company, its Subsidiary subsidiaries or its their respective Representatives in connection with any such party complying with the ordinary course of business notwithstanding obligations under this Section 6.16).
(e) The 6.14, and Parent shall indemnify, defend indemnify and hold harmless the Company Entities Company, its subsidiaries and their respective Representatives from and against any and all losses, damages, claims, interest, awards, judgments, penalties, costs and or expenses suffered or incurred by any of them in connection with the Financing (including any action taken in accordance with this Section 6.16) and costs and expenses incurred in defending against the foregoing, except to the extent such losses, damages, claims, interest, awards, judgments, penalties, costs or expenses arise from arose out of the willful breach of this Agreement actions taken by the Company, as finally its subsidiaries or their respective Representatives pursuant to this Section 6.14 (other than information provided by the Company, its subsidiaries or Representatives in writing for express use therein), except in the event such losses, damages, claims, interest, awards, judgments, penalties, costs or expenses are determined by a final non-appealable judgment of a court of competent jurisdiction, jurisdiction to have arisen out of or resulted from fraud on the part gross negligence or willful misconduct of the Company, any of its subsidiaries or any of their respective Representatives.
Appears in 2 contracts
Samples: Merger Agreement (Walgreens Boots Alliance, Inc.), Merger Agreement (Rite Aid Corp)
Financing Cooperation. (a) Subject Upon the request of Parent, the Partnership and its Subsidiaries shall execute and deliver, at the Closing, one or more supplemental indentures, officers’ certificates, board resolutions or other documents or instruments required for the due assumption of, and succession to, the Second Lien Notes and related guarantees, security documents, intercreditor agreements and other similar agreements and instruments (collectively, the “Second Lien Notes Documents”) to Section 6.16(b)the extent required by the terms of such Second Lien Notes Documents, and the Partnership and its Subsidiaries shall provide, at the sole cost of Parent, all assistance reasonably required by Parent in connection with obtaining the execution of such instruments by any other required parties.
(b) In the event that Parent desires to consummate an exchange offer, tender offer, repurchase offer, consent solicitation, discharge, defeasance, redemption or similar transaction, or any combination thereof (collectively, the “Debt Transactions”) with respect to the Second Lien Notes, the Partnership and its Subsidiaries shall use their respective commercially reasonable efforts to, and shall use commercially reasonable efforts to cause their respective Representatives (including the trustee and collateral trustee for the Second Lien Notes) to, cooperate in good faith to permit such Debt Transactions to be effected on such terms, conditions and timing as reasonably requested by Parent, including if so requested by Parent, causing the Debt Transactions to be consummated substantially concurrently with, but not prior to, the Closing. Upon request of Parent, the Partnership and its Subsidiaries shall execute and deliver one or more supplemental indentures, board resolutions, officers’ certificates or other documents or instruments reasonably required in connection therewith (it being understood such documentation may be required to be executed and delivered and such amendments to the Second Lien Notes Documents may be required to be effectuated prior to Closing or termination so long as any such amendments cease to be effective if Closing does not occur). For the avoidance of this Agreementdoubt, the Company consummation of any Debt Transaction shall not be a condition to Closing.
(c) Parent shall prepare all necessary and appropriate documentation in connection with any Debt Transactions, and the Partnership shall have a reasonable opportunity to review and comment upon such documents (the “Offer Documents”). The parties hereto shall, and shall cause their respective Subsidiaries and Representatives to, reasonably cooperate with each other in the preparation of the Offer Documents. If, at any time prior to the completion of the Debt Transactions, the Partnership or any of its Subsidiaries, on the one hand, or Parent or any of its Subsidiaries, on the other hand, discovers any information that should be set forth in an amendment or supplement to the Offer Documents, so that the Offer Documents shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of circumstances under which they are made, not misleading, such party that discovers such information shall use commercially reasonable efforts to promptly notify the other party, and an appropriate amendment or supplement prepared by Parent describing such information shall be disseminated by or on behalf of the Partnership or its Subsidiaries to the holders of the Second Lien Notes.
(d) In connection with any Debt Transaction, Parent may select one or more dealer managers, information agents, solicitation agents, depositaries and other agents, in each case as shall be reasonably acceptable to the Partnership, to provide assistance in connection therewith, and the Partnership shall, and shall cause its Subsidiaries to, enter into customary agreements with such parties so selected; provided, that neither the Partnership nor any of its Subsidiaries shall be required to indemnify, defend or hold harmless, or pay the fees or reimburse the costs and expenses of, any such party, which indemnification, fee and reimbursement obligations shall be borne by Parent pursuant to separate agreements with such parties to which neither the Partnership nor any of its Subsidiaries shall be a party or have any obligations under.
(e) The Partnership shall, and shall cause its Subsidiaries to, at the reasonable request of Parent, deliver all notices and to take all other actions required to facilitate (i) the termination of commitments in respect of the GE Credit Facility and (ii) the repayment in full of all obligations for borrowed money outstanding thereunder and the release of any Liens securing such indebtedness and guarantees in connection therewith on the Closing Date. In furtherance of the foregoing, the Partnership and its Subsidiaries that are party to the GE Credit Facility shall deliver to Parent on the Closing Date a payoff letter and related lien release documentation with respect to such indebtedness in form and substance customary for transactions of this type from General Electric Capital Corporation, as agent on behalf of the lenders under the GE Credit Facility, which payoff letter and related lien release documentation shall, among other things, include the payoff amount and provide that liens (and guarantees), if any, granted in connection therewith relating to the assets, rights and properties of the Partnership and its Subsidiaries that are party to the GE Credit Facility securing such indebtedness and any other obligations secured thereby, shall, upon the payment of the amount set forth in the applicable payoff letter at or substantially concurrently with the Closing, be released and terminated, provided, that Parent shall provide all funds required to effect all such repayments at or substantially concurrently with the Closing.
(f) From and after the date of this Agreement, and through the earlier of the Closing and the date on which this Agreement is terminated in accordance with Article VIII, the Partnership shall, and the Partnership shall cause each of its Included Subsidiaries, and shall use commercially reasonable efforts to cause their respective Representatives (including their auditors) to, use commercially reasonable best efforts to reasonably cooperate with and reasonably assist Parent, at the Parent’s request, sole cost and expense, in connection with arranging, obtaining and syndicating any Financing and causing the conditions in the Financing Documents and any commitment letters entered into in connection with such Financing to be satisfied, including using reasonable best efforts in (i) assisting with, and furnishing information for the purposes of, the preparation of provide all customary prospectuses cooperation (including any pro forma providing reasonably available financial and other information regarding the Included Subsidiaries for use in marketing and any information required under Article 18(2) of Commission Delegated Regulation (EU) 2019/980), offering documents, syndication documents and materials, including bank information memoranda and private placement memoranda, lender and investor presentations, rating agency materials and presentations and other customary marketing materials in connection with the Financing (all such documents and materials, collectively, the “Marketing Documents”) (it being understood and agreed that the Marketing Documents shall include (or otherwise be subject to) any customary exculpation language, as the case may be, with respect to the Company, its Affiliates and their respective Representatives), (ii) furnishing to the Parent as promptly as reasonably practicable financial statements and operational information (including consolidated financial statements for interim periods up until the Closing Date) that can be prepared without undue burden with respect to the Company and its Subsidiary as is reasonably requested by Parent (the “Required Information”), (iii) assisting in the preparation of schedules pro forma financial statements) as reasonably requested by Parent to collateral agreements by providing information assist Parent in (i) the arrangement of any bank debt financing or any capital markets debt financing for the purposes of financing the payment of the Company Entities Cash Consideration and (ii) any other amounts required to be made available on such schedules for purposes of the arrangement or consummation of the Financing, (iv) subject to any contractual agreement in effect, facilitating the pledging of collateral for the Financing, which shall not be required to be delivered or effective until at or promptly following the Effective Time, (v) subject to any contractual agreement in effect, obtaining the Payoff Letter, and the related lien releases, and instruments of termination or discharge, as applicable, required pursuant to Section 6.12, in each case which shall provide that, if sufficient funds are received by the financing sources under the Credit Agreement in order to pay off in full all obligations (other than the Excluded Obligations) in connection therewith or secured thereby, such release, termination and/or discharge shall be effective, and (vi) furnishing Parent as promptly as reasonably practical (and at least three (3) business days prior to the Closing Date) with all documentation and other information related to the Company and its Subsidiary required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, that has been reasonably requested in writing by Parent or its Financing Sources at least ten (10) business days prior to the Closing Date. The Company hereby consents to the use of its and its Subsidiary’s logos paid in connection with the Financing so long as consummation of such logos are used solely (i) in a manner that is not intended to transactions, any repayment of refinancing of debt contemplated by this Agreement or that is not reasonably likely to harm or disparage the Company or its Subsidiary or the reputation or goodwill of the Company or its Subsidiary and (ii) solely required in connection with a description the transactions contemplated by this Agreement; provided, however, that (x) no obligation or liability of the Company, its business and products Included Subsidiaries under such bank debt financing or the Merger.
(b) Notwithstanding the requirements of Section 6.16(a) or anything in this Agreement to the contrary, (i) neither the Company nor any of its Affiliates or their respective Representatives capital markets debt financing shall be required to enter into, approve or perform (or commit to enter into, approve or perform) any certificate, document, agreement, or instrument, in each case which will be effective prior to the Effective Time, Closing and (iiy) nothing herein shall require such cooperation contemplated thereby to the extent it would interfere unreasonably with the business or operations operation of the Company or any of Partnership and its Affiliates or their respective Affiliates, Included Subsidiaries.
(iiig) none of the Company nor any of its Affiliates or their respective Representatives, will be required to (1) pay or commit to pay any commitment or other fee, (2) reimburse or incur any costs or expenses or incur Notwithstanding any other liability (including any guarantee, indemnity or pledge) in connection with the Financing or the Marketing Documents prior to the Effective Time, (3) provide any financial data other than the Required Information, or (4) provide any legal opinion or reliance letters or any certificate (in the case of the Company or its Subsidiary that would be required to be delivered prior to the Effective Time), comfort letter or opinion of any of its Representatives, (iv) nothing herein will involve any binding commitment by the Company, any of its Affiliates or any of their respective Representatives which commitment is not conditioned on the Effective Time and does not terminate without liability to the Company, its Affiliates and their respective Representatives upon the termination provision of this Agreement, and (v) nothing herein will require the Company, any of its Affiliates or any of their respective Representatives to provide any information or take any action, the disclosure or taking of which would violate applicable Legal Requirements, any fiduciary duty, any Contract or obligation of confidentiality owing to a third party, or jeopardize the protection of the attorney-client privilege (or similar protections) held by the Company or any of its Affiliates; provided that, if the Company does not provide or cause its Representatives to provide such access or such information in reliance on the foregoing, then the Company shall (1) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1) any Representative of the Company or its Subsidiary to deliver any certificate or opinion or take any other action under this Section 6.16 that could reasonably be expected to result in personal liability to such Representative; (2) the Board of Directors (or any committee or subcommittee thereof) or the board of directors, managers, managing member or any similar controlling body of any Subsidiary of the Company to approve (or otherwise take any corporate or similar action with respect to) any financing (including the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) the Company and its Subsidiary to take any action that would conflict with or violate its organizational or governance documents or any applicable Legal Requirements, or result in the contravention of, or that could reasonably be expected to result in a violation of breach of, or default under, any agreement to which the Company or its Subsidiary is a party.
(c) Subject to any applicable Legal Requirements, all non-public or other confidential information provided by the Company, its Subsidiary or any of their respective Representatives pursuant to this Agreement will be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Purchaser will be permitted to disclose such information to any Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties to the Financing and to any underwriters, initial purchasers or placement agents in connection with the Financing (and, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; or (ii) are subject to other confidentiality undertakings reasonably satisfactory to the Company and of which the Company is a beneficiary.
(d) If the Closing does not occur, promptly upon request by the Company, Parent will reimburse the Company for any documented and reasonable out-of-pocket costs and expenses (including attorneys’ fees) incurred by the Company or its Subsidiary in connection with the cooperation of the Company and its Subsidiary contemplated by this Section 6.16 (it being understood and agreed that the reimbursement set forth in this Section 6.16(d) shall not apply to any fees, costs, and expenses incurred by, or on behalf of, the Company, its Subsidiary or any of its Representatives in connection with its ordinary course financial reporting requirements or in the provision of data that, in each case, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding this Section 6.16).
(e) The Parent shall indemnify, defend indemnify and hold harmless the Company Entities Partnership and each of its Subsidiaries and their respective Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses (including reasonable attorneys’ fees) interest, awards, judgments, penalties, costs judgments and expenses penalties suffered or incurred by any of them in connection with any and all of the Financing (including any action taken in accordance with matters contemplated by this Section 6.16) and costs and expenses incurred in defending against the foregoing, except to the extent such losses, damages, claims, costs 6.19 (other than arising from a material misstatement or expenses arise from the willful breach of this Agreement by the Company, as finally determined by a court of competent jurisdiction, or from fraud omission on the part of the CompanyPartnership or its Subsidiaries), whether or not the transactions contemplated by this Agreement are consummated or this Agreement is terminated. Parent shall, promptly upon request by the Partnership, reimburse the Partnership for all reasonable out-of-pocket costs (including reasonable attorneys’ fees) incurred by the Partnership or its Subsidiaries in connection with this Section 6.19, whether or not the transactions contemplated by this Agreement are consummated or this Agreement is terminated.
(h) Parent shall provide the Partnership with true and correct copies of any material documents in connection with any consent solicitation, tender offer, bank debt financing or capital markets debt financing proposed or entered into for the purposes of financing the payment of the Cash Consideration. As and when requested by the Partnership, Parent shall keep the Partnership reasonably informed of any material developments with respect to any such transaction (including by providing copies to the Partnership of any amendments or supplements to, or replacements of, the any material documents in connection with any such transaction) until the first to occur of the Closing Date and the termination of this Agreement in accordance with its terms.
(i) The Parent Entities acknowledge and agree that obtaining any consent solicitation, tender offer, bank debt financing or capital markets debt financing is not a condition to their obligations to effect the Closing and the Mergers. For the avoidance of doubt, if any financing, has not been obtained, the Parent Entities shall each continue to be obligated, subject to satisfaction or waiver of the conditions set forth in Article II, to consummate the Mergers and the other transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (CVR Partners, Lp), Merger Agreement
Financing Cooperation. (a) Subject 7.4.1 Prior to Section 6.16(b)the Completion Date, prior King shall use all reasonable endeavours to Closing or termination of this Agreement, the Company shallprovide to AB, and shall cause its Subsidiaries and their respective Representatives to, and shall use all reasonable best efforts endeavours to cause the respective officers, directors, employees and advisors and other Representatives, including legal and accounting, of each member of the King Group to, provide to AB and its Subsidiaries such cooperation as may be reasonably cooperate with and reasonably assist Parent, at the Parent’s request, sole cost and expense, requested by AB in connection with arranging, obtaining the syndication and syndicating any Financing and causing the conditions in consummation of the Financing Documents (provided that, in each case, such requested cooperation does not unreasonably interfere with the business or operations of any member of the King Group), including:
(a) participating in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions or sessions with prospective lenders, investors and any commitment letters entered into rating agencies, in each case as reasonably requested and upon reasonable advance notice; provided, however, that such participation will be limited to King’s Executive Officers and will be solely for the purpose of providing information in relation to King;
(b) providing information in connection with such Financing to be satisfied, including using reasonable best efforts in (i) assisting with, and furnishing information for the purposes of, the preparation of customary prospectuses (including any pro forma financial information and any information required under Article 18(2) of Commission Delegated Regulation (EU) 2019/980)materials for rating agency presentations, offering documents, syndication documents and materials, including bank information memoranda and private placement memoranda, lender and investor presentations, rating agency materials and investor presentations and other customary marketing materials and documents required or necessary in connection with the Financing (all such documents and the Transactions, including furnishing customary and reasonable business and financial projections reasonably requested by AB or any of its Subsidiaries, furnishing customary and reasonable records, data or other information necessary to support any statistical information or claims relating to any member of the King Group appearing in the aforementioned marketing materials, collectivelyand, at the “Marketing Documents”reasonable request of AB, providing necessary support and information to enable AB to prepare materials demonstrating the meaningful differences in measurement of the King Group’s historical financial performance under IFRS compared to US GAAP, consenting (such consent not to be unreasonably withheld, conditioned or delayed) to AB filing a Form 8-K with the SEC disclosing information identified by AB relating to the King Group (it being understood and agreed that other than projections) for purposes of permitting such information to be included in marketing materials or memoranda for the Marketing Documents shall include (or otherwise Financing to be subject to) any customary exculpation language, as the case may be, provided to potential investors who do not wish to receive material non-public information with respect to AB and its Subsidiaries, the Company, its Affiliates and King Group or any of their respective Representatives)securities; provided, however, that nothing in this sub-clause requires King to provide (i) information regarding compensation, (ii) US GAAP financial information or (iii) anything that will result in unreasonable interference with the business of King;
(c) furnishing to the Parent AB, as promptly as reasonably practicable upon request by AB in connection with the Financing, with the following financial information regarding the King Group: (i) the audited consolidated statements of financial position for the fiscal years ended on December 31, 2012, December 31, 2013 and operational information December 31, 2014 (including consolidated financial statements for interim periods up until and, if applicable, each subsequent fiscal year ended at least 90 days prior to the Closing Completion Date) and related audited consolidated statements of operations, comprehensive income, changes in equity and cash flows of the King Group for the fiscal years ended on December 31, 2012, December 31, 2013 and December 31, 2014 (and, if applicable, each subsequent fiscal year ended at least 90 days prior to the Completion Date), in each case, prepared in accordance with IFRS, and in compliance with Regulation S-X promulgated under the Securities Act (“Regulation S-X”), and (ii) the unaudited consolidated statements of financial position and related consolidated statements of operations of the King Group for each subsequent fiscal quarter ended at least 45 days prior to the Completion Date, and for the comparable period of the prior fiscal year, in each case, prepared in accordance with International Accounting Standard 34, as issued by IASB; provided, however, that can nothing in this sub-clause (c) requires King to provide (A) information regarding compensation, (B) US GAAP financial information or (C) information that is subject to confidentiality agreements, or is privileged, or is otherwise confidential and is a trade secret or competitively sensitive (unless disclosure is required to avoid a material misstatement or omission or is material non-public information and disclosed pursuant to Clause 7.4.1(b) above). Subject to disclosures contemplated by sub-clause (C) of the immediately preceding sentence, AB shall cause all non-public or other confidential information provided by or on behalf of King or any of its Subsidiaries or Representatives pursuant to this Clause 7.4 to be prepared without undue burden kept confidential in accordance with the AB Confidentiality Agreement;
(d) furnishing AB, as promptly as reasonably practicable and prior to Completion with financial and other information with respect to the Company members of the King Group prepared in accordance with the applicable provisions of US GAAP and its Subsidiary Regulation S-X reasonably necessary for AB to (i) evaluate the significance of the members of the King Group pursuant to Regulation S-X and (ii) prepare pro forma financial statements (including financial information with respect to the members of the King Group as of and for (x) the most recent annual period provided pursuant to sub-clause (c)(i) above, (y) the most recent interim period provided pursuant to sub-clause (c)(ii) above and (z) the 12-month period ending on the most recent statements of financial position date of King provided pursuant to sub-clauses (c)(i) or (c)(ii) above), prepared by AB after giving effect to the Transactions and the Financing as if such transactions and the Financing had occurred as of such date (in the case of statements of financial position) or at the beginning of such period (in the case of other financial statements) in accordance with the applicable provisions of US GAAP and Regulation S-X;
(e) reasonably cooperating with requests for due diligence to the extent customary for financings of a type similar to the Financing and provided that such requests do not unreasonably interfere with the business of King;
(f) providing promptly, and in any event, at least three Business Days prior to the Completion Date, such customary documentation and other customary information about the King Group as is reasonably requested in writing by Parent (the “Required Information”), (iii) assisting AB reasonably in the preparation of schedules to collateral agreements by providing information of the Company Entities required to be made available on such schedules for purposes of the arrangement or consummation of the Financing, (iv) subject to any contractual agreement in effect, facilitating the pledging of collateral for the Financing, which shall not be required to be delivered or effective until at or promptly following the Effective Time, (v) subject to any contractual agreement in effect, obtaining the Payoff Letteradvance of, and in any event, at least 20 calendar days prior to, the related lien releases, and instruments of termination or discharge, as applicable, required pursuant to Section 6.12, in each case which shall provide that, if sufficient funds are received by the financing sources under the Credit Agreement in order to pay off in full all obligations (other than the Excluded Obligations) Completion Date in connection therewith or secured thereby, such release, termination and/or discharge shall be effective, and (vi) furnishing Parent as promptly as reasonably practical (and at least three (3) business days prior with the Financing that relates to the Closing Date) with all documentation and other information related to the Company and its Subsidiary required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act;
(g) assisting with the preparation of any credit agreements, that has been indentures, notes, security purchase agreements, guarantees, pledge and security documents, hedging arrangements, other definitive financing documents, and other certificates or documents and back-up therefor and back-up for legal opinions customary in connection with financings of a type similar to the Financing as may be reasonably requested by AB or any of its Subsidiaries; and
(h) cooperating with AB and AB’s efforts to obtain corporate and facilities ratings as reasonably requested by AB. provided that:
(i) no member of the King Group shall be required to pay any commitment or other fee or incur any cost, expense or liability (other than fees and expenses that are to be promptly reimbursed by AB under Clause 7.4.2) in writing by Parent or its connection with the Financing Sources at least ten (10) business days prior to the Closing Completion Date. The Company ;
(ii) the King Board and officers of King prior to the Completion Date and the directors and officers of the Subsidiaries of King prior to the Completion Date shall not be required to adopt resolutions approving the agreements, documents and instruments pursuant to which the Financing is obtained;
(iii) no member of the King Group shall be required to execute, prior to the Completion Date, any financing agreements, including any credit, security, pledge or other agreements in connection with the Financing, or deliver any solvency, officers’ or similar certificates or legal opinions in connection with the Financing, in each case, that are not subject to the occurrence of the Completion Date (other than representation letters required by King and its Subsidiaries’ auditors in connection with the delivery of “comfort letters”); and
(iv) except as expressly provided above, no member of the King Group shall be required to take any corporate actions that are not subject to the occurrence of the Completion Date to permit the consummation of the Financing.
7.4.2 AB shall, promptly upon request by King, reimburse King for all reasonable documented out-of-pocket costs and expenses incurred by any member of the King Group in connection with cooperation under this Clause 7.4 and shall indemnify and hold harmless King, its Subsidiaries and their respective Representatives (including the King Board and officers of King or any of its Subsidiaries prior to the Completion Date) from and against any and all liabilities, losses, damages, claims, expenses, interest, judgments and penalties (each, a “Loss”) suffered or incurred by them in connection with the syndication or consummation of the Financing, any information utilised in connection therewith and any action taken by them at the request of AB or its Representatives (other than information provided by any member of the King Group or to the extent a Loss arises from the gross negligence, bad faith or misconduct of or a breach of this Agreement by an indemnified party).
7.4.3 King shall, or shall cause its Subsidiaries to, supplement the information provided in connection with the Financing on a reasonably current basis to the extent that any such information, to the Knowledge of King, contains an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary in order to make the statements therein not false or misleading in any material respect at the time and in light of the circumstances under which such statement is made, promptly after gaining Knowledge thereof.
7.4.4 King hereby consents to the use of its the names and marks of King and its Subsidiary’s logos Affiliates (including any Trademarks derived therefrom) in connection with the Financing so long as Financing; provided, that such logos names and marks are used solely (i) in a manner that is not intended to or that is not reasonably likely to harm or disparage the Company King or its Subsidiary or the reputation or goodwill of the Company or its Subsidiary and (ii) solely in connection with a description of the Company, its business and products or the Merger.
(b) Notwithstanding the requirements of Section 6.16(a) or anything in this Agreement to the contrary, (i) neither the Company nor any of its Affiliates or their respective Representatives reputation, goodwill or intellectual property.
7.4.5 King shall be required use all reasonable endeavours to enter intoassist in the delivery to AB of customary payoff letters, approve or perform (or commit lien terminations and instruments of discharge in form and substance reasonably satisfactory to enter intoAB to allow for the payoff, approve or perform) any certificatedischarge and termination in full on the ABL credit facility under the ABL Credit Agreement dated as of October 7, document2013, agreementas amended, or instrumentamong Midasplayer International Holding Company Limited, in each case which will be effective prior Xxxx.xxx Limited, Midasplayer Vertriebs GmbH, XX Xxxxxx Xxxxx Bank, N.A. and the other parties thereto.
7.4.6 Notwithstanding anything to the Effective Time, (ii) nothing herein shall require cooperation contemplated thereby to the extent it would interfere unreasonably with the business or operations of the Company or any of its Affiliates or their respective Affiliates, (iii) none of the Company nor any of its Affiliates or their respective Representatives, will be required to (1) pay or commit to pay any commitment or other fee, (2) reimburse or incur any costs or expenses or incur any other liability (including any guarantee, indemnity or pledge) contrary in connection with the Financing or the Marketing Documents prior to the Effective Time, (3) provide any financial data other than the Required Information, or (4) provide any legal opinion or reliance letters or any certificate (in the case of the Company or its Subsidiary that would be required to be delivered prior to the Effective Time), comfort letter or opinion of any of its Representatives, (iv) nothing herein will involve any binding commitment by the Company, any of its Affiliates or any of their respective Representatives which commitment is not conditioned on the Effective Time and does not terminate without liability to the Company, its Affiliates and their respective Representatives upon the termination of this Agreement, and (v) nothing herein will require the Company, any of its Affiliates or any of their respective Representatives to provide any information or take any action, the disclosure or taking of which would violate applicable Legal Requirements, any fiduciary duty, any Contract or obligation of confidentiality owing to a third party, or jeopardize the protection of the attorney-client privilege (or similar protections) held by the Company or any of its Affiliates; provided that, if the Company does not provide or cause its Representatives to provide such access or such information in reliance on the foregoing, then the Company shall (1) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing nothing in this Section 6.16 will Clause 7.4 shall require (1) any Representative member of the Company or its Subsidiary to deliver any certificate or opinion or take any other action under this Section 6.16 that could reasonably be expected to result in personal liability to such Representative; (2) the Board of Directors (or any committee or subcommittee thereof) or the board of directors, managers, managing member or any similar controlling body of any Subsidiary of the Company to approve (or otherwise take any corporate or similar action with respect to) any financing (including the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) the Company and its Subsidiary King Group to take any action that would conflict with or violate its organizational or governance documents or any applicable Legal Requirements, or result in the contravention of, or that could reasonably be expected to result in a violation of breach of, or default under, any agreement to which the Company or its Subsidiary is a party.
(c) Subject to any applicable Legal Requirements, all non-public or other confidential information provided by the Company, its Subsidiary or any of their respective Representatives pursuant to this Agreement will be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Purchaser will be permitted to disclose such information to any Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties to the Financing and to any underwriters, initial purchasers or placement agents in connection with the Financing (and, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; or (ii) are subject to other confidentiality undertakings reasonably satisfactory to the Company and of which the Company is a beneficiary.
(d) If the Closing does not occur, promptly upon request by the Company, Parent will reimburse the Company for any documented and reasonable out-of-pocket costs and expenses (including attorneys’ fees) incurred by the Company or its Subsidiary in connection with the cooperation Section 82 of the Company and its Subsidiary contemplated by this Section 6.16 (it being understood and agreed that the reimbursement set forth in this Section 6.16(d) shall not apply to any fees, costs, and expenses incurred by, or on behalf of, the Company, its Subsidiary or any of its Representatives in connection with its ordinary course financial reporting requirements or in the provision of data that, in each case, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding this Section 6.16)Act.
(e) The Parent shall indemnify, defend and hold harmless the Company Entities and their respective Representatives from and against any and all losses, damages, claims, interest, awards, judgments, penalties, costs and expenses suffered or incurred by any of them in connection with the Financing (including any action taken in accordance with this Section 6.16) and costs and expenses incurred in defending against the foregoing, except to the extent such losses, damages, claims, costs or expenses arise from the willful breach of this Agreement by the Company, as finally determined by a court of competent jurisdiction, or from fraud on the part of the Company.
Appears in 2 contracts
Samples: Transaction Agreement (Activision Blizzard, Inc.), Transaction Agreement (King Digital Entertainment PLC)
Financing Cooperation. (a) Subject to Section 6.16(b), prior to Closing or termination of this Agreement, the Company shall, The parties acknowledge and shall cause its Subsidiaries and their respective Representatives to, use reasonable best efforts to reasonably cooperate with and reasonably assist Parent, at the Parent’s request, sole cost and expense, in connection with arranging, obtaining and syndicating any Financing and causing the conditions in the Financing Documents and any commitment letters entered into in connection with such Financing to be satisfied, including using reasonable best efforts in (i) assisting with, and furnishing information for the purposes of, the preparation of customary prospectuses (including any pro forma financial information and any information required under Article 18(2) of Commission Delegated Regulation (EU) 2019/980), offering documents, syndication documents and materials, including bank information memoranda and private placement memoranda, lender and investor presentations, rating agency materials and presentations and other customary marketing materials in connection with the Financing (all such documents and materials, collectively, the “Marketing Documents”) (it being understood and agreed that the Marketing Documents shall include (or otherwise be subject to) any customary exculpation language, as the case may be, with respect to the Company, its Affiliates and their respective Representatives), (ii) furnishing to the Parent as promptly as reasonably practicable financial statements and operational information (including consolidated financial statements for interim periods up until the Closing Date) that can be prepared without undue burden with respect to the Company and its Subsidiary as is reasonably requested by Parent (the “Required Information”), (iii) assisting in the preparation of schedules to collateral agreements by providing information of the Company Entities required to be made available on such schedules for purposes of the arrangement or consummation of the Financing, (iv) subject to any contractual agreement in effect, facilitating the pledging of collateral for the Financing, which shall not be required to be delivered or effective until at or promptly following the Effective Time, (v) subject to any contractual agreement in effect, obtaining the Payoff Letter, and the related lien releases, and instruments of termination or discharge, as applicable, required pursuant to Section 6.12, in each case which shall provide agree that, if sufficient funds are received by the financing sources under the Credit Agreement in order to pay off in full all obligations (other than the Excluded Obligations) in connection therewith on or secured thereby, such release, termination and/or discharge shall be effective, and (vi) furnishing Parent as promptly as reasonably practical (and at least three (3) business days prior to the Closing Date, it may be necessary for OPCH (or any one or more of its subsidiaries) to enter into financing transactions (including the raising of new financing in connection with all documentation the transactions contemplated by this Agreement) (any such financing transaction, a “Financing Transaction”). In connection with any Financing Transaction and other information related to the Company and its Subsidiary required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, that has been extent reasonably requested in writing by Parent OPCH or Merger Sub on or prior to the Closing Date, Amedisys agrees to promptly (i) use commercially reasonable efforts to assist and cooperate with OPCH with respect to the arrangement, structuring, marketing and execution of any such Financing Transaction, and (ii) provide OPCH such information and documents regarding Amedisys or its subsidiaries as may be reasonably necessary or desirable to consummate any such Financing Sources at least ten (10) business days Transaction; provided that in no event shall Amedisys or its subsidiaries or their respective Representatives be required to execute and deliver any pledge or security documents or certificates, documents or instruments or enter into a definitive Agreement, in each case, with respect to a Financing Transaction, that, in each case, is not contingent upon the Closing Date occurring or would be effective prior to the Closing Date. The Company hereby consents OPCH and Mxxxxx Sub acknowledge and agree that their obligations to consummate the use Merger and the other transactions contemplated by this Agreement are not conditioned on the consummation of its and its Subsidiary’s logos in connection with the any Financing so long as such logos are used solely (i) in a manner that is not intended to or that is not reasonably likely to harm or disparage the Company or its Subsidiary or the reputation or goodwill of the Company or its Subsidiary and (ii) solely in connection with a description of the Company, its business and products or the MergerTransaction.
(b) Except as a result of fraud or willful misconduct by Amedisys, its subsidiaries or its or their Representatives, or arising from a material misstatement contained in information relating to Amedisys and its subsidiaries provided in writing by Amedisys, its subsidiaries or its or their Representatives for inclusion in definitive documentation related to a Financing Transaction, OPCH shall indemnify, defend and hold harmless Amedisys and its subsidiaries from and against any and all liabilities, losses, damages, claims, penalties, fines, costs, fees and expenses (including reasonable fees and expenses of one outside legal counsel, accountants, investment bankers, experts, consultants and other advisors and the cost of all filing fees and printing costs) actually suffered or incurred by them in connection with any cooperation requested by OPCH or required under this Agreement and provided by Amedisys under Section 6.15(a) and any information utilized in connection therewith. In addition, OPCH shall, promptly upon written request by Amedisys, reimburse Amedisys for all reasonable and documented out-of-pocket fees and expenses (including reasonable fees, costs and expenses of outside legal counsel, accountants, investment bankers, experts, consultants and other advisors, and the cost of all filing fees and printing costs) incurred by Amedisys or its subsidiaries in connection with any cooperation requested by OPCH or required under Section 6.15(a) and provided by Amedisys under Section 6.15(a). This Section 6.15(b) shall survive the Closing and termination of this Agreement, regardless of whether or not the Merger is consummated, and is intended to benefit, and may be enforced by Amedisys and its subsidiaries, who are each third-party beneficiaries of this Section 6.15(b).
(c) Notwithstanding the requirements of Section 6.16(a) or anything any provision in this Agreement Section 6.15 to the contrary, nothing in this Section 6.15 shall require (i) neither the Company nor any of its Affiliates or their respective Representatives shall be required to enter into, approve or perform (or commit to enter into, approve or performA) any certificate, document, agreement, or instrument, in each case which will be effective prior to the Effective Time, (ii) nothing herein shall require cooperation contemplated thereby to the extent that it would would, in the good faith determination of Amedisys, unreasonably interfere unreasonably with the business or operations of the Company Amedisys and its subsidiaries (taken as a whole), (B) Amedisys or any of its Affiliates subsidiaries to enter into any instrument or contract, or agree to any change or modification to any instrument or contract or take any action with respect to its existing indebtedness prior to the occurrence of the Closing that would be effective if the Closing does not occur, (C) Amedisys or any of its subsidiaries to deliver any notice of prepayment or redemption or similar notice that does not provide that such prepayment or redemption is conditioned upon the occurrence of the Closing, (D) Amedisys, any of its subsidiaries or their respective Affiliatesboards of directors (or equivalent bodies) to adopt any resolution, grant any approval or authorization or otherwise take any corporate or similar action (except for those that would not become effective until the Closing), (iiiE) none of the Company nor Amedisys or any of its Affiliates or their respective Representatives, will be required to (1) pay or commit subsidiaries to pay any commitment or other feefees, (2) reimburse any expenses or otherwise incur any costs liabilities or expenses or incur give any other liability (including any guarantee, indemnity or pledge) in connection with the Financing or the Marketing Documents indemnities prior to the Effective TimeClosing, (3F) provide any financial data other than the Required Information, Amedisys or (4) provide any legal opinion or reliance letters or any certificate (in the case of the Company or its Subsidiary that would be required to be delivered prior to the Effective Time), comfort letter or opinion of any of its Representativessubsidiaries to provide any pro forma adjustments to the financial statements reflecting the transactions contemplated or required hereunder, (ivG) nothing herein will involve any binding commitment by the Company, Amedisys or any of its Affiliates subsidiaries to take any action that would conflict with or violate Amedisys’s or any of their respective Representatives which commitment is not conditioned on the Effective Time and does not terminate without liability its subsidiaries’ organizational documents or any applicable Law, or result in a material breach of or material default under any Amedisys Material Contract, (H) Amedisys or any of its subsidiaries to take any action that would cause any condition to the Company, its Affiliates and their respective Representatives upon the termination Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement, and (vI) nothing herein will require the Company, Amedisys or any of its Affiliates or any of their respective Representatives subsidiaries to provide any information or take any action, the disclosure or taking of which would violate applicable Legal Requirements, is prohibited or legally privileged or (J) any fiduciary duty, any Contract or obligation Representative of confidentiality owing to a third party, or jeopardize the protection of the attorney-client privilege (or similar protections) held by the Company Amedisys or any of its Affiliates; provided that, if the Company does not provide or cause its Representatives to provide such access or such information in reliance on the foregoing, then the Company shall (1) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1) any Representative of the Company or its Subsidiary subsidiaries to deliver any certificate or opinion or take any other action under this Section 6.16 that could would reasonably be expected to result in personal liability to such individual Representative; (2) . Notwithstanding anything contained herein to the Board of Directors (or any committee or subcommittee thereof) or the board of directors, managers, managing member or any similar controlling body of any Subsidiary of the Company to approve (or otherwise take any corporate or similar action with respect to) any financing (including the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) the Company and its Subsidiary to take any action that would conflict with or violate its organizational or governance documents or any applicable Legal Requirements, or result in the contravention of, or that could reasonably be expected to result in a violation of breach of, or default undercontrary, any agreement to which the Company breach of Amedisys or its Subsidiary is a party.
(c) Subject to any applicable Legal Requirements, all non-public or other confidential information provided by the Company, its Subsidiary or any subsidiaries of their respective Representatives pursuant to this Agreement will be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Purchaser will be permitted to disclose such information to any Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties to the Financing and to any underwriters, initial purchasers or placement agents in connection with the Financing (and, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; or (ii) are subject to other confidentiality undertakings reasonably satisfactory to the Company and of which the Company is a beneficiary.
(d) If the Closing does not occur, promptly upon request by the Company, Parent will reimburse the Company for any documented and reasonable out-of-pocket costs and expenses (including attorneys’ fees) incurred by the Company or its Subsidiary in connection with the cooperation of the Company and its Subsidiary contemplated by obligations under this Section 6.16 (it being understood and agreed that the reimbursement set forth in this Section 6.16(d) 6.15 shall not apply to any fees, costs, and expenses incurred by, or on behalf of, the Company, its Subsidiary or any of its Representatives in connection with its ordinary course financial reporting requirements or in the provision of data that, in each case, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding this Section 6.16).
(e) The Parent shall indemnify, defend and hold harmless the Company Entities and their respective Representatives from and against any and all losses, damages, claims, interest, awards, judgments, penalties, costs and expenses suffered or incurred by any of them in connection with the Financing (including any action taken in accordance with this Section 6.16) and costs and expenses incurred in defending against the foregoing, except to the extent such losses, damages, claims, costs or expenses arise from the willful constitute a breach of this Agreement by the Company, as finally determined by for purposes of Article VIII or a court of competent jurisdiction, or from fraud on the part breach of the Companyconditions set forth in Article VII.
Appears in 2 contracts
Samples: Merger Agreement (Option Care Health, Inc.), Merger Agreement (Amedisys Inc)
Financing Cooperation. (a) Subject Prior to Section 6.16(b), prior to Closing or the earlier of the Effective Time and the valid termination of this AgreementAgreement in accordance with Article VIII, to the Company shall, extent reasonably requested by Parent in writing (which written request may be delivered over email) with reasonable prior notice and shall cause its Subsidiaries and their respective Representatives to, use reasonable best efforts to reasonably cooperate with and reasonably assist Parent, at the Parent’s request, sole cost and expense, the Company shall use its reasonable best efforts to, and shall use its reasonable best efforts to cause each of its Subsidiaries, its and their respective members of senior management and its and their respective Representatives to use reasonable best efforts to:
(i) participate (and cause senior management to participate) in a reasonable number of meetings and due diligence sessions in respect of the Debt Financing (to the extent required by the Debt Financing Sources);
(ii) assist Parent with providing information reasonably requested in connection with arrangingthe preparation by Parent of pro forma financial information and pro forma financial statements to the extent required by the Debt Financing Sources, obtaining it being agreed that the Company will not be required to provide any information or assistance relating to (A) the proposed aggregate amount of debt and syndicating equity financing, together with assumed interest rates, dividends (if any) and fees and expenses relating to the incurrence of such debt or equity financing, (B) any post-Closing or pro forma cost savings, synergies, capitalization, ownership or other pro forma adjustments desired to be incorporated into any information used in connection with the Debt Financing, or (C) any financial information related to Parent or any of its Subsidiaries or any adjustments that are not directly related to the acquisition of the Company by Parent;
(iii) assist Parent in connection with (A) the preparation of any disclosure schedules to the Debt Financing Documents and causing providing information reasonably necessary to complete customary perfection certificates and other customary loan documents required in connection with the conditions in Debt Financing, (B) the preparation, execution and delivery of any Debt Financing Documents and any commitment letters entered into other certificates or documents with respect to the Debt Financing, in connection each case, as may be reasonably requested by Parent or the Debt Financing Sources, and (C) to the extent required by the terms of the Debt Commitment Letter, otherwise facilitating the pledging of collateral and the granting of security interests in respect of the Debt Financing on the Closing Date, it being understood that any such documents will not be recorded or take effect until the Effective Time;
(iv) furnish Parent upon reasonable written request with such financial and other pertinent information regarding the Company and its Subsidiaries (including information regarding the business and operations thereof), to the extent prepared by the Company in the ordinary course of business, as may be reasonably requested by Parent to assist in the preparation of customary information documents used in financings associated with leveraged buyouts of comparable sized companies (which, for the avoidance of doubt, will not include any Excluded Information);
(v) assist in the taking of all corporate and other actions, subject to the occurrence of the Closing, reasonably necessary to permit the consummation of the Debt Financing to be satisfied, on the Closing Date (including using reasonable best efforts in (i) assisting with, to cause directors and furnishing information officers who will continue to hold such offices and positions from and after the Closing to execute resolutions or consents of the Company with respect to entering into the definitive documentation for the purposes of, Debt Financing and otherwise as necessary to authorize consummation of the preparation of customary prospectuses (including any pro forma financial information and any information required under Article 18(2) of Commission Delegated Regulation (EU) 2019/980Debt Financing), offering documents, syndication documents and materials, including bank information memoranda and private placement memoranda, lender and investor presentations, rating agency materials and presentations and other customary marketing materials in connection with the Financing (all such documents and materials, collectively, the “Marketing Documents”) (it being understood and agreed that the Marketing Documents shall include (no such corporate or otherwise be subject to) any customary exculpation language, as the case may be, with respect other action will take effect prior to the CompanyClosing; and
(vi) at least three (3) Business Days prior to Closing, its Affiliates furnish Parent with all documentation, certifications and their respective Representatives), (ii) furnishing to the Parent as promptly as reasonably practicable financial statements and operational other information (including consolidated financial statements for interim periods up until the Closing Date) that can be prepared without undue burden with respect to about the Company and its Subsidiary Subsidiaries as is reasonably requested by Parent at least nine (9) Business Days prior to Closing, in accordance with the “Required Information”), (iii) assisting in the preparation of schedules to collateral agreements by providing information requirements of the Company Entities required to be made available on such schedules for purposes of the arrangement or consummation of the Financing, (iv) subject to any contractual agreement in effect, facilitating the pledging of collateral for the Financing, which shall not be required to be delivered or effective until at or promptly following the Effective Time, (v) subject to any contractual agreement in effect, obtaining the Payoff Letter, and the related lien releases, and instruments of termination or discharge, as applicableDebt Financing Sources, required pursuant to Section 6.12, in each case which shall provide that, if sufficient funds are received by the financing sources under the Credit Agreement in order to pay off in full all obligations (other than the Excluded Obligations) in connection therewith or secured thereby, such release, termination and/or discharge shall be effective, and (vi) furnishing Parent as promptly as reasonably practical (and at least three (3) business days prior to the Closing Date) with all documentation and other information related to the Company and its Subsidiary required by regulatory authorities under applicable “know your customer” ”, beneficial ownership and anti-money laundering rules and regulations, regulations (including the PATRIOT Act, that has been reasonably requested in writing by Parent or its Financing Sources at least ten (10) business days prior to the Closing Date. The Company hereby consents to the use of its and its Subsidiary’s logos in connection with the Financing so long as such logos are used solely (i) in a manner that is not intended to or that is not reasonably likely to harm or disparage the Company or its Subsidiary or the reputation or goodwill of the Company or its Subsidiary and (ii) solely in connection with a description of the Company, its business and products or the Merger).
(b) Notwithstanding Nothing in this Section 6.14 or any other provision of this Agreement will require the requirements Company or any of Section 6.16(aits Subsidiaries to, in connection with the Debt Financing, (i) waive or anything amend any terms of this Agreement or any other Contract, provide any additional security or guarantees prior to the Effective Time or pay any fees or reimburse any expenses prior to the Effective Time for which it has not received prior reimbursement by or on behalf of Parent, (ii) enter into any definitive agreement prior to the Effective Time, (iii) give any indemnities in connection with the Debt Financing that are effective prior to the Effective Time for which it is not simultaneously indemnified by Parent or its Affiliates in a manner reasonably satisfactory to the Company, (iv) prepare or provide any Excluded Information, or (v) take any action (or cause its Subsidiaries or its and their respective members of senior management to take any action) that in the good faith judgment of the Company would (A) unreasonably interfere with its or its Subsidiaries’ business operations; (B) create a material risk of damage or destruction to any property or assets of the Company or any of its Subsidiaries; (C) cause any representation or warranty or covenant contained in this Agreement to be breached or cause any closing condition set forth in Article VII to fail to be satisfied; (D) give rise to a material risk of waiving any attorney-client, work product, or similar privilege of the contraryCompany and its Subsidiaries; provided, that the Company will inform Xxxxxx and Merger Sub of the general nature of the document or information being withheld (to the extent doing so would not give rise to a material risk of waiving any such privilege) and reasonably cooperate with Parent and Merger Sub in seeking to provide such document or information in a manner that would not give rise to a material risk of waiving any such privilege, (iE) result in a material violation or material breach of, or material default under, any Contract to which the Company or any of its Subsidiaries is a party or otherwise bound or (F) result in a violation of applicable Law or breach of the Governing Documents of the Company and its Subsidiaries. In addition, (A) no action, liability, or obligation of the Company, any of its Subsidiaries or any of their respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to the Debt Financing will be effective until the Effective Time (in each case other than customary authorization or representation letters and “know-your-customer”, beneficial ownership and anti-money laundering rule and regulation (including the PATRIOT Act) information required to be provided in connection with the Debt Financing), and (B) neither the Company nor any of its Affiliates Subsidiaries (nor any officer or their respective Representatives shall director thereof) will be required to enter into, approve or perform (or commit take any action pursuant to enter into, approve or perform) any certificate, document, agreement, arrangement, document or instrument, in each case which will instrument relating to the Debt Financing that is not contingent on the occurrence of the Closing or must be effective prior to the Effective Time, (ii) nothing herein shall require cooperation contemplated thereby to the extent it would interfere unreasonably with the business or operations of the Company or any of its Affiliates or their respective Affiliates, (iii) none of the Company nor any of its Affiliates or their respective Representatives, will be required to (1) pay or commit to pay any commitment or other fee, (2) reimburse or incur any costs or expenses or incur any other liability (including any guarantee, indemnity or pledge) in connection with the Financing or the Marketing Documents prior to the Effective Time, (3) provide any financial data other than the Required Information, or (4) provide any legal opinion or reliance letters or any certificate (in the case of the Company or its Subsidiary that would be required to be delivered prior to the Effective Time), comfort letter or opinion of any of its Representatives, (iv) nothing herein will involve any binding commitment by the Company, any of its Affiliates or any of their respective Representatives which commitment is not conditioned on the Effective Time and does not terminate without liability to the Company, its Affiliates and their respective Representatives upon the termination of this Agreement, and (v) nothing herein will require the Company, any of its Affiliates or any of their respective Representatives to provide any information or take any action, the disclosure or taking of which would violate applicable Legal Requirements, any fiduciary duty, any Contract or obligation of confidentiality owing to a third party, or jeopardize the protection of the attorney-client privilege (or similar protections) held by the Company or any of its Affiliates; provided that, if the Company does not provide or cause its Representatives to provide such access or such information in reliance on the foregoing, then the Company shall (1) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing in this Section 6.16 Section 6.14 will require (1) any Representative of the Company or any of its Subsidiary Subsidiaries to deliver any certificate or opinion or take any other action under this Section 6.16 Section 6.14 that could reasonably be expected to result in personal liability to such Representative; Representative or (2) the Board of Directors (or any committee or subcommittee thereof) Company Board, the Company Special Committee or the board of directors, managers, managing member or any similar controlling body of any Subsidiary of the Company to pass resolutions or consents to approve or authorize the Debt Financing, in each case, prior to the Effective Time (or otherwise take any corporate or similar action with respect to) any financing (including and shall only be executed by officers and directors which will continue to be authorized after the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) the Company and its Subsidiary to take any action that would conflict with or violate its organizational or governance documents or any applicable Legal Requirements, or result in the contravention of, or that could reasonably be expected to result in a violation of breach of, or default under, any agreement to which the Company or its Subsidiary is a party.
(c) Subject to any applicable Legal Requirements, all Effective Time). All non-public or other confidential information provided by the Company, its Subsidiary or any of their respective Representatives Company pursuant to this Agreement Section 6.14 will be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Purchaser Merger Sub will be permitted to disclose such information to any Debt Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties to the Debt Financing and to any underwriters, initial purchasers or placement agents in connection with the Financing Sources (and, in each case, to their respective counsel and auditorsRepresentatives) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; thereto or (ii) are otherwise subject to other customary confidentiality undertakings reasonably satisfactory to the Company and of which the Company is a beneficiaryundertakings.
(dc) If Parent shall indemnify and hold harmless the Closing does not occurAcquired Companies, promptly upon request and each of their respective directors, officers and employees, from and against any and all losses incurred in connection with the Debt Financing or any information, assistance or activities provided in connection therewith, except to the extent arising from (i) any material inaccuracy of any historical written information furnished in writing by or on behalf of the CompanyAcquired Companies, taken as a whole, including financial statements or (ii) the gross negligence, bad faith or willful misconduct of the Acquired Companies or any of their respective directors, officers, employees or Representatives as determined by a final, non-appealable judgment of a court of competent jurisdiction. Parent will shall reimburse the Company Acquired Companies for any reasonable, documented and in reasonable detail, out-of-pocket costs and expenses (including attorneys’ fees) incurred by the Company or its Subsidiary Acquired Companies and each of their respective directors, officers and employees in connection with the cooperation Debt Financing or such assistance requested by Parent or its Representatives.
(d) Obtaining Debt Financing is not a condition to the Closing, and in event that Debt Financing has not been obtained, Parent and Merger Sub will each continue to be obligated, subject to the satisfaction or waiver of the Company and its Subsidiary contemplated by this Section 6.16 (it being understood and agreed that the reimbursement conditions set forth in this Section 6.16(d) shall not apply Article VII and Section 9.02(b), to any fees, costs, and expenses incurred by, or on behalf of, consummate the Company, its Subsidiary or any of its Representatives in connection with its ordinary course financial reporting requirements or in the provision of data that, in each case, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding this Section 6.16)Merger.
(e) The In no event will Parent shall indemnifyor Merger Sub enter into any Contract expressly prohibiting or seeking to prohibit any bank, defend and hold harmless investment bank or other potential provider of debt financing from providing or seeking to provide debt financing or financial advisory services to any Person, in each case in connection with a transaction relating to the Company Entities and their respective Representatives from and against any and all losses, damages, claims, interest, awards, judgments, penalties, costs and expenses suffered or incurred by any of them its Subsidiaries or in connection with the Financing (including any action taken in accordance with this Section 6.16) Merger, and costs Parent and expenses incurred in defending against the foregoing, except Merger Sub will not consent to the extent entry into any such lossesContract by any of their respective Representatives (which will be deemed to include each direct investor in Parent or Merger Sub or any other potential financing sources of Parent, damagesMerger Sub and such investors).
(f) Notwithstanding anything to the contrary contained in this Agreement, claims, costs or expenses arise from the willful a breach of this Agreement by the Company, as finally determined by Section 6.14 will only constitute a court of competent jurisdiction, or from fraud on the part material breach of the CompanyCompany for purposes of Section 7.02(b) if (x) the Company shall have breached any of its obligations under this Section 6.14, (y) Parent has provided the Company with notice in writing of such breach (with reasonable specificity as to the basis for any such breach) and the Company has failed to cure such breach within three (3) Business Days thereof, and (z) such breach shall have been the proximate cause of the Debt Financing not being consummated.
Appears in 2 contracts
Samples: Merger Agreement (Doma Holdings, Inc.), Merger Agreement (Doma Holdings, Inc.)
Financing Cooperation. (a) Subject to Section 6.16(b), prior to Closing or termination of this Agreement, the The Company shall, and shall cause its Subsidiaries and their respective Representatives to, use reasonable best efforts to provide such assistance as reasonably cooperate with and reasonably assist Parent, at the Parent’s request, sole cost and expense, requested by Parent in connection with arrangingfinancing arrangements (including assumptions, obtaining and syndicating any Financing and causing the conditions in the Financing Documents and any commitment letters entered into guarantees, amendments, supplements, modifications, refinancings, replacements, repayments, terminations or prepayments of existing financing arrangements) as Parent may reasonably determine necessary or advisable in connection with the completion of the Merger or the other transactions contemplated by this Agreement. Such assistance shall include, but not be limited to, the following: (a) providing such Financing information and making available such personnel as Parent may reasonably request, including the preparation and furnishing in a timely fashion of all financial statements and other data customary to be satisfiedincluded in connection therewith (including all audited financial statements, including using reasonable best efforts all unaudited financial statements (which shall have been reviewed by the independent accounting firm for the Company as provided in the procedures specified by the Public Company Accounting Oversight Board in AU 722)) and all information regarding the Company and its Subsidiaries reasonably required for Parent to prepare pro forma financial statements, financial data, audit reports and other information regarding the Company and its Subsidiaries of the type required by and in compliance with Regulation S-X and Regulation S-K promulgated under the Securities Act and related forms; (ib) assisting participation in, and assistance with, any marketing activities related to such financing; (c) participation by senior management of the Company in, and furnishing information for the purposes oftheir assistance with, the preparation of customary prospectuses (including any pro forma financial information and any information required under Article 18(2) of Commission Delegated Regulation (EU) 2019/980), offering documents, syndication documents and materials, including bank information memoranda and private placement memoranda, lender and investor presentations, rating agency materials and presentations and other customary marketing materials meetings with rating agencies; (d) taking such actions as are reasonably requested by Parent or its financing sources to facilitate the satisfaction of all conditions precedent to obtaining such financing; and (e) assisting in connection with the Financing (all such documents and materials, collectively, the “Marketing Documents”) (it being understood and agreed that the Marketing Documents shall include (any exchange transactions or otherwise be subject to) any customary exculpation language, as the case may be, with respect to the Company, its Affiliates and their respective Representatives), (ii) furnishing to the Parent as promptly as reasonably practicable financial statements and operational information (including consolidated financial statements for interim periods up until the Closing Date) that can be prepared without undue burden consents with respect to the Company Indentures. Notwithstanding the foregoing, the Company and its Subsidiary as is reasonably requested by Parent (the “Required Information”), (iii) assisting in the preparation of schedules to collateral agreements by providing information of the Company Entities required to be made available on such schedules for purposes of the arrangement or consummation of the Financing, (iv) subject to any contractual agreement in effect, facilitating the pledging of collateral for the Financing, which Subsidiaries shall not be required to be delivered or effective until at or promptly following the Effective Time, (v) subject to any contractual agreement in effect, obtaining the Payoff Letter, and the related lien releases, and instruments of termination or discharge, as applicable, required pursuant to this Section 6.124.20 to (1) enter into any letter, in each case which shall provide that, if sufficient funds are received by the financing sources under the Credit Agreement in order to pay off in full all obligations (other than the Excluded Obligations) in connection therewith or secured thereby, such release, termination and/or discharge shall be effective, and (vi) furnishing Parent as promptly as reasonably practical (and at least three (3) business days prior to the Closing Date) with all documentation and other information related to the Company and its Subsidiary required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, that has been reasonably requested in writing by Parent or its Financing Sources at least ten (10) business days prior to the Closing Date. The Company hereby consents to the use of its and its Subsidiary’s logos in connection with the Financing so long as such logos are used solely (i) in a manner that is not intended to or that is not reasonably likely to harm or disparage the Company or its Subsidiary or the reputation or goodwill of the Company or its Subsidiary and (ii) solely in connection with a description of the Company, its business and products or the Merger.
(b) Notwithstanding the requirements of Section 6.16(a) or anything in this Agreement to the contrary, (i) neither the Company nor any of its Affiliates or their respective Representatives shall be required to enter into, approve or perform (or commit to enter into, approve or perform) any certificate, document, agreement, agreement or instrument, in each case which instrument (other than customary authorization and representation letters and notices) that will be effective prior to the Effective TimeClosing (or that will otherwise be effective if the Closing does not occur), (ii2) nothing herein shall require cooperation contemplated thereby take any action to the extent it would interfere unreasonably with disrupt the business or operations of the Company and the Company Subsidiaries (taken as a whole) or require any of its Affiliates them to take any actions that would reasonably be expected to violate any applicable Legal Requirement, any Contract or their respective Affiliates, (iii) none of the Company nor any of its Affiliates or their respective Representatives, will be required to (1) pay or commit to pay any commitment or other fee, (2) reimburse or incur any costs or expenses or incur any other liability (including any guarantee, indemnity or pledge) in connection with the Financing or the Marketing Documents prior to the Effective TimeOrganizational Documents, (3) provide any financial data other than information to the Required Informationextent such information would not be required to be provided pursuant to Section 4.8(a), or (4) provide take any legal opinion actions, or reliance letters omit to take an action, that would reasonably be expected to result in any personal liability for the directors, officers, employees or any certificate (in the case stockholders of the Company or its Subsidiary that would be required to be delivered prior to the Effective Time), comfort letter or opinion of any of its RepresentativesSubsidiaries, (iv5) nothing herein will involve any binding commitment by the Company, any of its Affiliates or any of their respective Representatives which commitment is not conditioned on the Effective Time and does not terminate without liability to the Company, its Affiliates and their respective Representatives upon the termination of this Agreement, and (v) nothing herein will require the Company, any of its Affiliates or any of their respective Representatives to provide any information that cannot be provided without unreasonable burden or expense or (6) take any action, the disclosure or taking of which omit to take an action, that would violate applicable Legal Requirementsreasonably be expected to cause any representation, any fiduciary duty, any Contract warranty or obligation of confidentiality owing covenant in this Agreement to a third party, or jeopardize the protection of the attorney-client privilege (or similar protections) held be breached by the Company or any of its Affiliates; provided that, if Subsidiaries (unless waived by Parent) or cause any closing condition set forth in Article V to fail to be satisfied. The Company hereby consents to Parent’s use of and reliance on any audited or unaudited financial statements relating to the Company does not provide or cause its Representatives and the consolidated Company Subsidiaries, including any filings that Parent desires to provide such access or such information in reliance on make with the foregoingSEC. In addition, then the Company will use reasonable best efforts, at Parent’s sole cost and expense, to obtain the consents of any auditor to the inclusion of the financial statements referenced above in appropriate filings with the SEC.
(b) Parent shall promptly reimburse the Company for any reasonable and documented costs and expenses (1) provide a written notice to Parent stating that it is withholding such access or such including legal expenses but excluding costs of the Company’s preparation of financial information and (2) reasonably cooperate (at financial statements in connection with its compliance with its periodic reporting obligations under the request of Parent) to provide the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract Exchange Act or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1the ordinary course of business) any Representative of incurred by the Company or any of its Subsidiary to deliver Subsidiaries (including reasonable attorneys’ and accountants’ fees) in connection with any certificate or opinion or take any other action under this Section 6.16 that could reasonably be expected to result in personal liability to such Representative; (2) the Board of Directors taken (or not taken) in compliance with Section 4.20(a). Parent shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from any committee losses, damages, fines, amounts paid in settlement, costs or subcommittee thereofexpenses arising out of or relating to any action taken (or not taken) in compliance with Section 4.20(a) (other than to the extent any of the foregoing are incurred as a result of gross negligence, bad faith or willful misconduct of the board Company, any of directors, managers, managing member its Subsidiaries or any similar controlling body of any Subsidiary of the Company to approve (or otherwise take any corporate or similar action with respect to) any financing (including the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) the Company and its Subsidiary to take any action that would conflict with or violate its organizational or governance documents or any applicable Legal Requirements, or result in the contravention of, or that could reasonably be expected to result in a violation of breach of, or default under, any agreement to which the Company or its Subsidiary is a partytheir respective Representatives).
(c) Subject to any applicable Legal Requirements, all non-public or other All confidential information regarding the Company and its Subsidiaries provided by the Company, Company and its Subsidiary or any of their respective Representatives Subsidiaries pursuant to this Agreement will Section 4.20 shall be kept confidential in accordance with the terms of the Confidentiality Agreement, except that Parent and Purchaser will be permitted to disclose such information to any Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties to the Financing and to any underwriters, initial purchasers or placement agents in connection with the Financing (and, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; or (ii) are subject to other confidentiality undertakings reasonably satisfactory to the Company and of which the Company is a beneficiary.
(d) If the Closing does not occur, promptly upon request by the Company, Parent will reimburse the Company for any documented and reasonable out-of-pocket costs and expenses (including attorneys’ fees) incurred by the Company or its Subsidiary in connection with the cooperation of the Company and its Subsidiary contemplated by this Section 6.16 (it being understood and agreed that the reimbursement set forth in this Section 6.16(d) shall not apply to any fees, costs, and expenses incurred by, or on behalf of, the Company, its Subsidiary or any of its Representatives in connection with its ordinary course financial reporting requirements or in the provision of data that, in each case, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding this Section 6.16).
(e) The Parent shall indemnify, defend and hold harmless the Company Entities and their respective Representatives from and against any and all losses, damages, claims, interest, awards, judgments, penalties, costs and expenses suffered or incurred by any of them in connection with the Financing (including any action taken in accordance with this Section 6.16) and costs and expenses incurred in defending against the foregoing, except to the extent such losses, damages, claims, costs or expenses arise from the willful breach of this Agreement by the Company, as finally determined by a court of competent jurisdiction, or from fraud on the part of the Company.
Appears in 2 contracts
Samples: Merger Agreement (DISH Network CORP), Merger Agreement (EchoStar CORP)
Financing Cooperation. (a) Subject TransGlobe agrees to Section 6.16(b), prior use commercially reasonable efforts to Closing or termination of this Agreement, the Company shallprovide, and shall to cause each of its Subsidiaries and each of their respective Representatives toto provide, use reasonable best efforts to such cooperation as may be reasonably cooperate with and reasonably assist Parent, at the Parent’s request, sole cost and expense, in connection with arranging, obtaining and syndicating any Financing and causing the conditions in the Financing Documents and any commitment letters entered into in connection with such Financing to be satisfied, including using reasonable best efforts in (i) assisting with, and furnishing information for the purposes of, the preparation of customary prospectuses (including any pro forma financial information and any information required under Article 18(2) of Commission Delegated Regulation (EU) 2019/980), offering documents, syndication documents and materials, including bank information memoranda and private placement memoranda, lender and investor presentations, rating agency materials and presentations and other customary marketing materials requested by VAALCO in connection with the Financing borrowing or an issuance of debt by VAALCO, AcquireCo and/or any liability management transaction (all such documents and materialsincluding, collectivelywithout limitation, the “Marketing Documents”any exchange offers, consent solicitations or tender offers) (it being understood and agreed that the Marketing Documents shall include (or otherwise be subject to) any customary exculpation language, as the case may be, with respect to debt existing on the Companydate hereof of TransGlobe or its Subsidiaries (collectively, its Affiliates a “Debt Financing”), including, without limitation to, upon reasonable notice: (i) provide assistance with any discussions of and/or furnish, as applicable, such business, financial statements, pro forma financials, projections, management discussion and their respective Representatives)analysis and other customary financial data and information (including diligence materials) reasonably required in connection with any Debt Financing, (ii) furnishing direct their respective independent accountants to the Parent as promptly as reasonably practicable financial statements provide customary and operational information (reasonable assistance in connection with any Debt Financing, including consolidated financial statements for interim periods up until the Closing Date) that can be prepared without undue burden in connection with respect to the Company providing customary comfort letters and its Subsidiary as is reasonably requested by Parent (the “Required Information”)consents, (iii) assisting in the preparation obtain customary payoff letters, releases of schedules to collateral agreements by providing information of the Company Entities required to be made available on such schedules for purposes of the arrangement or consummation of the Financing, (iv) subject to any contractual agreement in effect, facilitating the pledging of collateral for the Financing, which shall not be required to be delivered or effective until at or promptly following the Effective Time, (v) subject to any contractual agreement in effect, obtaining the Payoff Letter, liens and the related lien releases, and other instruments of termination or discharge, as applicable, required pursuant to Section 6.12, in each case which shall provide that, if sufficient funds are received by the financing sources under the Credit Agreement in order to pay off in full all obligations (other than the Excluded Obligations) in connection therewith or secured thereby, such release, termination and/or discharge shall be effective, and (vi) furnishing Parent as promptly as reasonably practical (and at least three (3) business days prior to the Closing Date) with all documentation and other information related to the Company and its Subsidiary required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, that has been reasonably requested in writing by Parent or its Financing Sources at least ten (10) business days prior to the Closing Date. The Company hereby consents to the use of its and its Subsidiary’s logos VAALCO in connection with the Financing so long as repayment of debt of TransGlobe and its Subsidiaries (provided that the effectiveness of any such logos are used solely (i) in a manner that is not intended to or that is not reasonably likely to harm or disparage arrangements shall be contingent on the Company or its Subsidiary or the reputation or goodwill completion of the Company or its Subsidiary Arrangement) and (iiiv) solely authorize and facilitate discussions, meetings and other engagement by VAALCO, its Subsidiaries or affiliates with the current lenders, noteholders or other providers of existing indebtedness to TransGlobe or any of its Subsidiaries for the purpose of obtaining Debt Financing, including by necessary or appropriate waivers of the Confidentiality Agreement to permit such activities. VAALCO (or, at VAALCO’s direction, AcquireCo) shall reimburse TransGlobe for all reasonable out-of-pocket costs or expenses incurred by TransGlobe and its Subsidiaries in connection with a description cooperation provided for in this Section 5.13 to the extent the information requested was not otherwise prepared or available in the ordinary course of the Company, its business and products or the Mergerbusiness.
(b) Notwithstanding the requirements of Section 6.16(a) or anything in this Agreement Prior to the contraryEffective Date, (i) neither the Company nor any none of TransGlobe, its Affiliates Subsidiaries or its or their respective Representatives shall be required to enter into, approve take any action that: (i) would contravene any applicable Law or perform (or commit any agreement that relates to enter into, approve or perform) any certificate, document, agreement, or instrument, in each case borrowed money to which will be effective prior to the Effective Time, (ii) nothing herein shall require cooperation contemplated thereby to the extent it would interfere unreasonably with the business or operations of the Company TransGlobe or any of its Affiliates Subsidiaries are a party: (ii) would reasonably be expected to impair or their respective Affiliates, prevent the satisfaction of any condition in Article 6 hereof; or (iii) none of the Company nor would subject such Person to actual or potential liability, to bear any of its Affiliates cost or their respective Representatives, will be required to (1) pay expense or commit to pay any commitment or other fee, (2) reimburse similar fee or incur make any costs or expenses other payment or incur any other liability (including or provide or agree to provide any guarantee, indemnity or pledge) in connection with the any Debt Financing or the Marketing Documents prior to the Effective Time, (3) provide any financial data other than the Required Information, or (4) provide any legal opinion or reliance letters their performance of their respective obligations under this Section 5.13 or any certificate information utilized in connection therewith (except, in the case of this paragraph (iii) in respect of TransGlobe and its Subsidiaries, to the Company extent such liability, cost, expense or its Subsidiary that would be required to be delivered prior to indemnity is conditional upon the occurrence of the Effective Time). VAALCO (or, comfort letter or opinion of any of its Representativesat VAALCO’s direction, (iv) nothing herein will involve any binding commitment by the Company, any of its Affiliates or any of their respective Representatives which commitment is not conditioned on the Effective Time and does not terminate without liability to the Company, its Affiliates and their respective Representatives upon the termination of this Agreement, and (v) nothing herein will require the Company, any of its Affiliates or any of their respective Representatives to provide any information or take any action, the disclosure or taking of which would violate applicable Legal Requirements, any fiduciary duty, any Contract or obligation of confidentiality owing to a third party, or jeopardize the protection of the attorney-client privilege (or similar protections) held by the Company or any of its Affiliates; provided that, if the Company does not provide or cause its Representatives to provide such access or such information in reliance on the foregoing, then the Company shall (1) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1) any Representative of the Company or its Subsidiary to deliver any certificate or opinion or take any other action under this Section 6.16 that could reasonably be expected to result in personal liability to such Representative; (2) the Board of Directors (or any committee or subcommittee thereof) or the board of directors, managers, managing member or any similar controlling body of any Subsidiary of the Company to approve (or otherwise take any corporate or similar action with respect to) any financing (including the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) the Company and its Subsidiary to take any action that would conflict with or violate its organizational or governance documents or any applicable Legal Requirements, or result in the contravention of, or that could reasonably be expected to result in a violation of breach of, or default under, any agreement to which the Company or its Subsidiary is a party.
(c) Subject to any applicable Legal Requirements, all non-public or other confidential information provided by the Company, its Subsidiary or any of their respective Representatives pursuant to this Agreement will be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Purchaser will be permitted to disclose such information to any Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties to the Financing and to any underwriters, initial purchasers or placement agents in connection with the Financing (and, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; or (ii) are subject to other confidentiality undertakings reasonably satisfactory to the Company and of which the Company is a beneficiary.
(d) If the Closing does not occur, promptly upon request by the Company, Parent will reimburse the Company for any documented and reasonable out-of-pocket costs and expenses (including attorneys’ fees) incurred by the Company or its Subsidiary in connection with the cooperation of the Company and its Subsidiary contemplated by this Section 6.16 (it being understood and agreed that the reimbursement set forth in this Section 6.16(dAcquireCo) shall not apply to any fees, costs, and expenses incurred by, or on behalf of, the Company, its Subsidiary or any of its Representatives in connection with its ordinary course financial reporting requirements or in the provision of data that, in each case, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding this Section 6.16).
(e) The Parent shall indemnify, defend indemnify and hold harmless the Company Entities TransGlobe and its Subsidiaries and their respective Representatives from and against any and all losses, damages, claims, interest, awards, judgments, penalties, costs and expenses suffered or incurred by any of them in connection with any Debt Financing and the Financing (including any action taken in accordance with performance of their respective obligations under this Section 6.16) 5.13 and costs and expenses incurred any information utilized in defending against connection therewith (other than arising from information provided by TransGlobe or its Subsidiaries specifically for use in the foregoing, except Debt Financing pursuant to this Section 5.13). TransGlobe hereby consents to the extent use of the logos of TransGlobe or its Subsidiaries in connection with any Debt Financing; provided, that such losses, damages, claims, costs logos are used solely in a manner that is not intended to or expenses arise from reasonably likely to harm or disparage TransGlobe or any of its Subsidiaries or the willful breach reputation or goodwill of TransGlobe or any of its Subsidiaries.
(c) VAALCO acknowledges and agrees that the consummation of the transactions contemplated by this Agreement by is not conditioned upon the Company, as finally determined by a court of competent jurisdictionconsummation of, or from fraud on the part receipt by VAALCO or AcquireCo of the Companyproceeds of, the Debt Financing.
Appears in 2 contracts
Samples: Arrangement Agreement (Vaalco Energy Inc /De/), Arrangement Agreement (Transglobe Energy Corp)
Financing Cooperation. (a) Subject to Section 6.16(b), prior to Closing or From the date of this Agreement and continuing until the earlier of the Effective Time and the termination of this AgreementAgreement and abandonment of the transactions contemplated by this Agreement pursuant to Article IX, the Company shallshall use its reasonable best efforts to, and shall cause its Subsidiaries and its and their respective Representatives to, to use their respective reasonable best efforts to, provide such customary cooperation and information as may be reasonably requested by Parent or Merger Sub in writing, to reasonably cooperate with and reasonably assist Parent, at the Parent’s request, sole cost and expense, Parent in connection with arranging, obtaining and syndicating any consummating the Debt Financing and causing the conditions in the Equity Financing Documents and any commitment letters entered into in connection with such Financing to be satisfiedSyndication (as applicable), including using reasonable best efforts in to:
(i) assisting withassist Parent and Merger Sub in its preparation and execution of any credit agreement, and furnishing information for the purposes ofguarantees, the preparation of customary prospectuses security agreements, closing certificates (including any pro forma financial information solvency certificates) and any information other certificates, resolutions, letters and documents;
(ii) to the extent required under Article 18(2) by the Debt Financing, facilitate the pledging of Commission Delegated Regulation (EU) 2019/980)collateral, offering documents, syndication documents and materialseffective no earlier than the Closing, including bank information memoranda and private placement memoranda, lender and investor presentations, rating agency materials and presentations and using reasonable best efforts to facilitate the delivery to the Debt Financing Sources or any other customary marketing materials lenders in connection with the Financing (all such documents and materials, collectively, the “Marketing Documents”) (it being understood and agreed that the Marketing Documents shall include (or otherwise be subject to) any customary exculpation language, as the case may be, with respect to the Company, its Affiliates and their respective Representatives), (ii) furnishing to the Parent as promptly as reasonably practicable financial statements and operational information (including consolidated financial statements for interim periods up until at the Closing Date) that can be prepared without undue burden with respect to all certificates representing outstanding equity interests of the Company and its Subsidiary Subsidiaries and taking all reasonable actions that are necessary and customary to facilitate the release of all material Encumbrances;
(iii) reasonably cooperate with the external and internal counsel of the Parent and Merger Sub and any financing source or any other lenders or investors in connection with the Financing in connection with providing back-up certificates and factual information related to any legal opinion that such counsel may be required to deliver in connection with the Financing and using reasonable best efforts to cause the local and internal counsel of the Company and its Affiliates to provide assistance to Parent;
(iv) furnish the Guarantor, Parent, Merger Sub and the Debt Financing Sources or any other lenders or investors in connection with the Financing or the Equity Financing Syndication with any other historical financial information or other pertinent and customary information regarding the Company and its Subsidiaries as is may be reasonably requested by the Guarantor, Parent (or Merger Sub in connection with the “Required Information”)Financing or the Equity Financing Syndication, (iii) assisting in including as is required by Parent or Merger Sub to produce customary pro forma financial statements as required pursuant to the preparation of schedules to collateral agreements by providing information of the Company Entities required to be made available on such schedules Debt Commitment Letter or as customary for purposes of the arrangement of loans contemplated by Debt Financing;
(v) furnish to Parent, Merger Sub and the Debt Financing Sources or consummation of any other lenders in connection with the Financing, (iv) subject to any contractual agreement in effect, facilitating the pledging of collateral for the Financing, which shall not be required to be delivered or effective until at or promptly following the Effective Time, (v) subject to any contractual agreement in effect, obtaining the Payoff Letter, and the related lien releases, and instruments of termination or discharge, as applicable, required pursuant to Section 6.12, in each case which shall provide that, if sufficient funds are received by the financing sources under the Credit Agreement in order to pay off in full all obligations (other than the Excluded Obligations) in connection therewith or secured thereby, such release, termination and/or discharge shall be effective, and (vi) furnishing Parent as promptly as reasonably practical (and at least three 4 Business Days prior to the Closing Date (3) business days to the extent requested at least 9 Business Days prior to the Closing Date) with ), all documentation and other information related to about the Company and its Subsidiary required Subsidiaries requested by Parent for purposes of satisfying requirements of bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulationsregulations (including, including without limitation, the PATRIOT ActAct and, that has been if applicable, the Beneficial Ownership Regulation); and
(vi) take all corporate actions, subject to the occurrence of the Closing, reasonably requested in writing by Parent or its to permit the consummation of the Financing Sources at least ten (10) business days prior and the proceeds thereof to be made available on the Closing Date. The Company hereby consents to the use of its and its Subsidiary’s logos in connection with the Financing so long as such logos are used solely (i) in a manner that is not intended to or that is not reasonably likely to harm or disparage the Company or its Subsidiary or the reputation or goodwill of the Company or its Subsidiary and (ii) solely in connection with a description of the Company, its business and products or the Merger.
(b) Notwithstanding the requirements The foregoing notwithstanding, none of Section 6.16(a) or anything in this Agreement to the contrary, (i) neither the Company nor any of its Affiliates or their respective Representatives shall be required to take or permit the taking of any action pursuant to Section 7.12 or this Section 7.13 that would reasonably be expected to: (i) require the Company or its Subsidiaries or any of their respective Affiliates or any persons who are officers or directors of such entities to pass resolutions or consents to approve or authorize the execution of the 2L Credit Agreement Modification, the Equity Financing Syndication or the Debt Financing or enter into, approve execute or perform (or commit to enter into, approve or perform) deliver any certificate, document, agreementinstrument or agreement or agree to any change or modification of any existing certificate, document, instrument or instrumentagreement (provided that the Company will, to the extent otherwise required hereby, use commercially reasonable efforts to cause persons who will continue as officers or directors, as applicable, of the Company and its Subsidiaries after the occurrence of Closing, and who will not be removed or replaced in connection therewith, to pass resolutions and to execute documents, in each case which will be are subject to and conditioned upon, and do not become effective prior to until, the Effective Timeoccurrence of Closing), (ii) nothing herein shall cause any representation or warranty in this Agreement to be breached by the Company or any of its Affiliates, (iii) require cooperation contemplated thereby the Company or any of its Affiliates to pay any commitment or other similar fee or incur any other expense, liability or obligation in connection with the Debt Financing, the 2L Credit Agreement Modification or the Equity Financing Syndication prior to the Closing for which Parent is not obligated to provide reimbursement or indemnification or otherwise incur any obligation under any agreement, certificate, document or instrument (except to the extent it would interfere unreasonably Parent is obligated to provide reimbursement or indemnification for such obligation or the effectiveness of such obligation under such agreement, certificate, document or instrument is subject to and conditioned upon the occurrence of Closing), (iv) reasonably be expected to cause any director, officer, employee or stockholder of the Company or any of its Affiliates to incur any personal liability, (v) reasonably be expected to conflict with the business or operations Existing Indebtedness, the organizational documents of the Company or any of its Affiliates or their respective Affiliatesany Laws, (iiivi) none 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 nor or any of its Affiliates or their respective Representatives, will be required to (1) pay or commit to pay any commitment or other feeis a party, (2) reimburse or incur any costs or expenses or incur any other liability (including any guarantee, indemnity or pledge) in connection with the Financing or the Marketing Documents prior to the Effective Time, (3vii) provide any financial data other than the Required Information, access to or (4) provide any legal opinion or reliance letters or any certificate (in the case of disclose information that the Company or its Subsidiary that would be required to be delivered prior to the Effective Time), comfort letter or opinion of any of its Representatives, (iv) nothing herein will involve any binding commitment by the Company, any of its Affiliates or determines on advice of counsel would jeopardize any of their respective Representatives which commitment is not conditioned on the Effective Time and does not terminate without liability to the Company, its Affiliates and their respective Representatives upon the termination of this Agreement, and (v) nothing herein will require the Company, any of its Affiliates or any of their respective Representatives to provide any information or take any action, the disclosure or taking of which would violate applicable Legal Requirements, any fiduciary duty, any Contract or obligation of confidentiality owing to a third party, or jeopardize the protection of the attorney-client privilege (or similar protections) held by other applicable privilege or protection of the Company or any of its Affiliates; provided that, if (viii) require the delivery of any opinion of counsel, (ix) require the Company does to prepare any financial statements or information that are not provide available to it and prepared in the ordinary course of its financial reporting practice or cause its Representatives to provide such access or such information in reliance on the foregoing, then (x) require the Company shall (1) provide a written notice to Parent stating that it is withholding such access prepare or such information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access deliver any Excluded Information. Nothing contained in Section 7.12 or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract this Section 7.13 or otherwise jeopardize such privilege. Nothing in this Section 6.16 will Agreement shall require (1) any Representative of the Company or any of its Subsidiary Affiliates, prior to deliver any certificate the Closing, to be an issuer or opinion or take any other action under this Section 6.16 that could reasonably be expected to result in personal liability to such Representative; (2) the Board of Directors (or any committee or subcommittee thereof) or the board of directors, managers, managing member or any similar controlling body of any Subsidiary of the Company to approve (or otherwise take any corporate or similar action obligor with respect to) any financing (including to the Debt Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) the Company and its Subsidiary to take any action that would conflict with or violate its organizational or governance documents or any applicable Legal Requirements, or result in the contravention of, or that could reasonably be expected to result in a violation of breach of, or default under, any agreement to which the Company or its Subsidiary is a party.
(c) Subject to any applicable Legal Requirements, all All non-public or other otherwise confidential information provided by regarding the Company, its Subsidiary Company or any of its Affiliates obtained by Parent or their respective Representatives representatives pursuant to Section 7.12 or this Agreement will Section 7.13 shall be kept confidential in accordance with the Confidentiality Agreement, except ; provided that Parent and Purchaser will its representatives shall be permitted to disclose such information to any (i) the Debt Financing Sources or prospective equity or debt financing sources subject to their confidentiality obligations under the Debt Commitment Letter and other financial institutions and investors that are or may become parties the Definitive Agreements, (ii) otherwise to the Financing extent necessary and to any underwriters, initial purchasers or placement agents consistent with customary practices in connection with the Debt Financing (and, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; or (ii) are subject to other customary confidentiality undertakings arrangements reasonably satisfactory to the Company and of which (iii) investors in the Equity Financing Syndication that have signed a joinder to the Confidentiality Agreement or otherwise signed a customary confidentiality agreements with the Company is as party or a third party beneficiary, which in any case, must be reasonably satisfactory to the Company.
(d) If Notwithstanding anything contrary in this Agreement or any Transaction Documents, the Guarantor and its Affiliates shall not sell, transfer or syndicate to any Person (other than the Rolling Stockholders) if such sale, transfer or syndication (i) would reasonably be expected to result in any delay in satisfying, or increase the risk of not satisfying, the conditions to the Closing does not occurset forth in Article VIII or (ii) cause any statement made or information provided to a regulatory authority prior to such assignment to become materially untrue or misleading; provided, promptly upon request by the Companyfurther, Parent will reimburse any sale, transfer or syndication to a competitor of the Company for any documented and reasonable out-of-pocket costs and expenses (including attorneys’ fees) incurred by must be subject to the Company or its Subsidiary in connection with the cooperation prior approval of the Company and its Subsidiary contemplated by this Section 6.16 (it being understood and agreed that the reimbursement set forth in this Section 6.16(d) shall not apply to any fees, costs, and expenses incurred by, or on behalf of, the Company, its Subsidiary or any of its Representatives in connection with its ordinary course financial reporting requirements or in the provision of data that, in each case, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding this Section 6.16)Parent.
(e) The Parent shall indemnify, defend and hold harmless the Company Entities and their respective Representatives from and against any and all losses, damages, claims, interest, awards, judgments, penalties, costs and expenses suffered or incurred by any of them in connection with the Financing (including any action taken in accordance with this Section 6.16) and costs and expenses incurred in defending against the foregoing, except to the extent such losses, damages, claims, costs or expenses arise from the willful breach of this Agreement by the Company, as finally determined by a court of competent jurisdiction, or from fraud on the part of the Company.
Appears in 1 contract
Financing Cooperation. (a) Subject Seller shall use its reasonable best efforts to Section 6.16(b), prior to Closing or termination of this Agreement, the Company shallprovide, and shall cause its Subsidiaries and their respective Representatives to, to use reasonable best efforts to reasonably cooperate with provide, and reasonably assist Parentuse reasonable best efforts to cause their Representatives to provide, in each case at the Parent’s request, sole cost of Buyer, with such cooperation and expense, assistance as is customary or reasonably requested by Buyer in connection with arranging, obtaining and syndicating any Financing and causing and/or consummating the conditions in the Financing Documents and any commitment letters entered into in connection with such Financing to be satisfiedDebt Financing, including using reasonable best efforts to assist Buyer with Buyer’s (x) pledging and perfection of collateral and (y) provision of guarantees, in (i) each case, supporting the Debt Financing, including assisting with, and furnishing information for the purposes of, the Buyer with Xxxxx’s preparation of customary prospectuses the Debt Financing Documents; provided, that no pledge, guarantee or other Debt Financing Document shall be effective until the Closing.
(b) Notwithstanding anything to the contrary herein, (A) nothing herein shall require such cooperation or other action by any of Seller or any of its Subsidiaries (including the Vantive Group Entities) to the extent it would unreasonably interfere with the ongoing operations of Seller or any pro forma financial information and any information required under Article 18(2) of Commission Delegated Regulation its Subsidiaries (EU) 2019/980including the Vantive Group Entities), offering (B) none of Seller, any of its Subsidiaries (including the Vantive Group Entities) or its Representatives shall be required to execute, approve or deliver any definitive financing documents, syndication documents and materialscertification, including bank information memoranda and private placement memorandainstrument or agreement, lender and investor presentationsor make any representation to Buyer, rating agency materials and presentations and any of their Affiliates, any lender, agent or lead arranger to the Debt Financing or any other customary marketing materials person in connection with the Debt Financing (all such documents and materials, collectively, the “Marketing Documents”) (it being understood and agreed that the Marketing Documents shall include (any officer or otherwise be subject to) director Seller or any customary exculpation language, as the case may be, with respect to the Company, of its Affiliates and their respective Representatives), (ii) furnishing to the Parent as promptly as reasonably practicable financial statements and operational information (including consolidated financial statements for interim periods up until Subsidiaries that will remain an officer or director after the Closing Date) that can be prepared without undue burden may, at the request of Buyer in connection with respect to the Company and its Subsidiary as is reasonably requested by Parent Debt Financing (the “Required Information”), (iii) assisting in the preparation of schedules to collateral agreements by providing information of the Company Entities required to be made available on such schedules for purposes of the arrangement or consummation of the Financing, (iv) subject to any contractual agreement in effect, facilitating the pledging of collateral for the Financing, which but shall not be required to), execute, approve or deliver documents that will be effective only at or after the Closing (but subject to the occurrence of the Closing)), or to deliver or require to be delivered any solvency or similar certificate or any legal opinion of external counsel in connection with the Debt Financing, (C) none of Seller, any of its Subsidiaries (including the Vantive Group Entities) or any of its equityholders or governing bodies shall be required to authorize or pass any resolutions or consents to approve or authorize the execution of any definitive financing documents, certification, instrument or agreement in connection with any Debt Financing (it being understood that any director of any of Seller or any of its Subsidiaries that will remain a director after the Closing may, at the request of Buyer in connection with any Debt Financing (but shall not be required to), execute resolutions or consents that will be effective until only at or promptly following after the Effective TimeClosing (but subject to the occurrence of the Closing)), (vD) subject nothing herein shall require such cooperation to the extent it would reasonably be expected to (1) conflict with or violate any contractual agreement applicable Law or result in effecta breach of, obtaining or a default under, any material contract to which Seller or any of its Subsidiaries (including the Payoff LetterVantive Group Entities) is a party to that was not entered into for the purpose of avoiding performance under this Section 4.28 or (2) violate any obligation of confidentiality (not created in contemplation hereof) binding on any of Seller or any of its Subsidiaries (including the Vantive Group Entities) or disclose any information that is legally privileged, (3) breach, waive or amend any terms of this Agreement or (4) cause any condition to the Closing set forth in Section 5.1 and Section 5.2 to not be satisfied, (E) none of Seller, any of its Subsidiaries (including the related lien releasesVantive Group Entities) or their respective Representatives shall be required to seek any amendment, and instruments waiver, consent or other modification under any indebtedness, (F) neither Seller nor any of termination or discharge, as applicable, its Subsidiaries (including the Vantive Group Entities) shall be required pursuant to Section 6.12, in each case which shall provide that, if sufficient funds are received by the financing sources under the Credit Agreement in order to pay off or incur any fee or incur or assume any liability or obligation in full all obligations connection with the Debt Financing prior to the Closing (other than as are expressly reimbursable or payable by Buyer) and (G) neither Seller nor any of its Subsidiaries (including the Excluded ObligationsVantive Group Entities) in connection therewith or secured thereby, such release, termination and/or discharge shall be effectiverequired to prepare or deliver any financial statements, other than financial statements that are prepared in the ordinary course or the Required Financial Information, or any financial information, financial projections or pro forma financial information. Notwithstanding anything to the contrary in this Section 4.28 or this Agreement, Seller and its Subsidiaries shall promptly deliver to Buyer (via) furnishing Parent as promptly as reasonably practical (and at least three (3) business days Business Days prior to the Closing Date) with , all documentation and other information related about each of the Vantive Group Entities as is reasonably requested in writing by Xxxxx (including on behalf of the Debt Financing Sources) at least nine (9) Business Days prior to the Company Closing Date and its Subsidiary required by regulatory authorities under to be delivered pursuant to applicable “know your beneficial ownership,” “know-your-customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act, that has been reasonably requested in writing by Parent or its Financing Sources at least ten Act and the Beneficial Ownership Regulation (1031 C.F.R. § 1010.230) business days prior to and (b) the Closing Date. The Company hereby consents to the use Required Financial Information.
(c) Neither Buyer nor any of its and Affiliates shall use or display Seller’s or any of its Subsidiary’s Subsidiaries’ trademarks or logos in connection with the Financing so long as Debt Financing, without the prior written consent of Seller; provided, that Buyer shall ensure that such trademarks and logos are used solely (i) in a manner that is not intended to or that is not reasonably likely to harm or disparage Seller or any of its Subsidiaries (including the Company or its Subsidiary Vantive Group Entities) or the reputation or goodwill of Seller or any of its Subsidiaries (including the Company or its Subsidiary and Vantive Group Entities), (ii) solely in connection with a description of the Company, its business and products Business or the Merger.
Transactions and (biii) Notwithstanding the in a manner that will comply in all material respects with Seller’s usage requirements of Section 6.16(a) or anything in this Agreement to the contrary, (i) neither the Company nor any of its Affiliates or their respective Representatives shall be required extent made available to enter into, approve or perform (or commit to enter into, approve or perform) any certificate, document, agreement, or instrument, in each case which will be effective Buyer prior to the Effective Time, (ii) nothing herein shall require cooperation contemplated thereby to the extent it would interfere unreasonably with the business or operations of the Company Execution Date. Information provided by Seller or any of its Affiliates or their respective Affiliates, (iii) none of the Company nor any of its Affiliates or their respective Representatives, will be required to (1) pay or commit to pay any commitment or other fee, (2) reimburse or incur any costs or expenses or incur any other liability Subsidiaries (including any guarantee, indemnity or pledgethe Vantive Group Entities) in connection with the Financing or the Marketing Documents prior to the Effective Time, (3) provide any financial data other than the Required Information, or (4) provide any legal opinion or reliance letters or any certificate (in the case of the Company or its Subsidiary that would be required to be delivered prior to the Effective Time), comfort letter or opinion of any of its Representatives, (iv) nothing herein will involve any binding commitment by the Company, any of its Affiliates or any of their respective Representatives which commitment is not conditioned on the Effective Time and does not terminate without liability to the Company, its Affiliates and their respective Representatives upon the termination of this AgreementDebt Financing, and (v) nothing herein will require the Company, any of its Affiliates or any of their respective Representatives to provide any information or take any action, the disclosure or taking of which would violate applicable Legal Requirements, any fiduciary duty, any Contract or obligation of confidentiality owing to a third party, or jeopardize the protection of the attorney-client privilege (or similar protections) held by the Company or any of its Affiliates; provided that, if the Company does not provide or cause its Representatives to provide such access or such information in reliance on the foregoing, then the Company shall (1) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1) any Representative of the Company or its Subsidiary to deliver any certificate or opinion or take any other action under this Section 6.16 that could reasonably be expected to result in personal liability to such Representative; (2) the Board of Directors (or any committee or subcommittee thereof) or the board of directors, managers, managing member or any similar controlling body of any Subsidiary of the Company to approve (or otherwise take any corporate or similar action with respect to) any financing (including the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) the Company and its Subsidiary to take any action that would conflict with or violate its organizational or governance documents or any applicable Legal Requirements, or result in the contravention of, or that could reasonably be expected to result in a violation of breach of, or default under, any agreement to which the Company or its Subsidiary is a party.
(c) Subject to any applicable Legal Requirements, all non-public or other otherwise confidential information provided by the Company, its Subsidiary regarding Seller or any of their respective its Subsidiaries (including the Vantive Group Entities) obtained by Buyer or any of its Representatives pursuant to this Agreement will in connection with the Debt Financing, shall be kept confidential in accordance with the Confidentiality Agreement, except Agreement and may only be provided to sources or potential sources of financing and rating agencies that Parent and Purchaser will be permitted to disclose such information to any Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties to the Financing and to any underwriters, initial purchasers or placement agents in connection with the Financing (and, in each case, to their respective counsel and auditors) so long as such Persons (i) agree have agreed to be bound by the Confidentiality Agreement as a customary confidentiality provisions (including “Representativeclick-thru” thereunder as if parties thereto; or (ii) are subject to other confidentiality undertakings reasonably satisfactory to the Company and of which the Company is a beneficiaryprovisions).
(d) If the Closing does not occur, promptly upon request by the Company, Parent will reimburse the Company for any documented and reasonable out-of-pocket costs and expenses (including attorneys’ fees) incurred by the Company or its Subsidiary in connection with the cooperation of the Company and its Subsidiary contemplated by this Section 6.16 (it being understood and agreed that the reimbursement set forth in this Section 6.16(d) shall not apply to any fees, costs, and expenses incurred by, or on behalf of, the Company, its Subsidiary or any of its Representatives in connection with its ordinary course financial reporting requirements or in the provision of data that, in each case, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding this Section 6.16).
(e) The Parent Buyer shall indemnify, defend and hold harmless Seller and its Subsidiaries (including the Company Entities Vantive Group Entities), and their respective Representatives pre-Closing directors, officers, employees, agents, representatives and professional advisors, from and against any and all lossesliability, damages, claims, interest, awards, judgments, penalties, costs and expenses obligation or loss suffered or incurred by any of them in connection with any cooperation provided under this Section 4.28, the arrangement of the Debt Financing or any other financing by Buyer or any of its Affiliates and any information provided in connection therewith, except in the event such liabilities, obligations or losses arose out of or result from (x) the bad faith, gross negligence, intentional fraud, or willful misconduct or (y) information provided for use in connection with the Financing, in each case of the foregoing clauses (x) and (y), by or on behalf of Seller or any of its Subsidiaries (including the Vantive Group Entities) or their respective representatives. Buyer shall promptly, upon request, reimburse Seller for all reasonable, documented and out-of-pocket costs incurred by Seller and its Subsidiaries (including the Vantive Group Entities) in connection with any action taken in accordance with cooperation provided under this Section 6.16) and costs and expenses incurred 4.28 or otherwise in defending against connection with the foregoingDebt Financing; provided, except that Buyer shall not be responsible for any ordinary course amounts payable to existing employees of or consultants to Seller or its Subsidiaries with respect to services provided prior to the extent such lossesClosing Date. The payment obligations under this Section 4.28(d) shall survive the termination of this Agreement and shall be in addition to any other fee or obligation owed by Buyer in connection with any termination, damagesbreach or otherwise.
(e) Notwithstanding anything to the contrary in this Agreement, claims, costs or expenses arise from the willful a breach by Seller of its obligations under this Section 4.28 shall not constitute a breach of this Agreement by the Company, as finally determined by or a court of competent jurisdiction, or from fraud on the part breach of the Companycondition precedent set forth in Section 5.2(b) unless such breach is an intentional breach and directly results in the failure of a condition precedent in the Debt Commitment Letter directly causing the Debt Financing not to be available to Buyer.
Appears in 1 contract
Samples: Equity Purchase Agreement (Baxter International Inc)
Financing Cooperation. (a) Subject to Section 6.16(b), prior to Closing or termination of this Agreement, the The Company shall, shall and shall cause each Company Subsidiary to, at Parent’s sole expense, use its Subsidiaries and their respective Representatives to, use reasonable best efforts to reasonably cooperate with and reasonably assist Parent, at the Parent’s request, sole cost and expense, provide such cooperation in connection with arranging, obtaining and syndicating the debt financing for the Transactions (the “Debt Financing”) as may be reasonably requested by Parent or Merger Sub, as applicable, as is necessary and customary in connection with the arrangement of debt financings; provided that such requested cooperation is consistent with applicable Law and does not unreasonably interfere with the ongoing operations of the Company or any Financing Company Subsidiary. Such cooperation by the Company and causing the Company Subsidiaries shall include, in each case at the reasonable request of Parent:
(i) preparing and furnishing Parent or Merger Sub, as applicable, and the Lenders, not later than a time reasonably sufficient to allow Parent or Merger Sub, as applicable, to satisfy the conditions in the Debt Financing Documents Documentation, all Required Information and any commitment letters entered into in connection with such Financing to be satisfied, including using reasonable best efforts in (i) assisting with, all other financial and furnishing information for the purposes of, the preparation of customary prospectuses (including any pro forma financial other pertinent information and any information required under Article 18(2) of Commission Delegated Regulation (EU) 2019/980)disclosures regarding the Company and the Company Subsidiaries as may be reasonably requested by Parent or Merger Sub, offering documentsas applicable, syndication documents and materials, including bank information memoranda and private placement memoranda, lender and investor presentations, rating agency materials and presentations and other customary marketing materials for use in connection with the Financing Debt Financing,
(all such documents ii) causing the Company’s senior officers with appropriate expertise to participate in a reasonable number of lender meetings, rating agency presentations and materialsdue diligence meetings at reasonable times and upon reasonable advance notice,
(iii) assisting Parent and Merger Sub, collectivelyas applicable, and the “Marketing Documents”Lenders in the preparation of (A) (it being understood and agreed that the Debt Marketing Documents shall include (or otherwise be subject toand any supplements thereto) any customary exculpation language, as the case may be, solely with respect to information relating to the CompanyCompany and the Company Subsidiaries and (B) pro forma financial statements or other pro forma financial information, its Affiliates in each case to the extent reasonably requested by Parent; provided, that (w) any such Debt Marketing Documents (and their respective Representativesany supplements thereto), (ii) furnishing to the Parent as promptly as reasonably practicable financial statements and operational or other financial information (including consolidated financial statements for interim periods up until the Closing Date) that can be prepared without undue burden with respect to the Company shall only reflect the Surviving Corporation as the obligor(s), (x) the Company shall not be responsible for the preparation of such Debt Marketing Documents (and its Subsidiary any supplements thereto), pro forma financial statements and any pro forma adjustments giving effect to the Transactions contemplated herein and (y) the Company’s assistance shall relate solely to the financial information and data derived from the Company’s historical books and records (which shall not involve the Company itself preparing such pro forma financial information), and providing reasonable cooperation with the due diligence efforts of the Lenders to the extent reasonable and customary,
(iv) reasonably cooperating with the marketing efforts of Parent and the Lenders in connection with the Debt Financing, including direct contact between such management of the Company and potential lenders in the Debt Financing,
(v) reasonably cooperating with Parent’s legal counsel in connection with customary legal opinions required of Parent in connection with the Debt Financing,
(vi) reasonably assisting Parent in obtaining any corporate credit and family ratings from any ratings agencies contemplated by the Debt Financing Documentation, including assisting Parent and the Lenders in the preparation of customary materials for rating agency presentations solely with respect to information relating to the Company and the Company Subsidiaries,
(vii) reasonably assisting in the preparation of, and executing and delivering, Debt Financing Documentation and other customary financing documents, including guaranty and collateral documents and other certificates, schedules and documents as is may be reasonably requested by Parent or Merger Sub, as applicable,
(viii) facilitating the “Required Information”)pledging of, granting security interests in and obtaining performance liens on, collateral for the Debt Financing (iii) assisting in the preparation including delivery of schedules to collateral agreements by providing information original stock certificates and original stock powers of the Company Entities Subsidiaries to the extent required on the Closing Date by the Lenders in connection with the Debt Financing and to be made the extent available on such schedules for purposes to the Company),
(ix) using reasonable best efforts to assist the Lenders in benefiting from the existing lending relationships of the arrangement or consummation of the FinancingCompany,
(x) taking all ministerial company actions, (iv) subject to any contractual agreement in effect, facilitating and only effective upon the pledging occurrence of collateral for the Financing, which shall not be required to be delivered or effective until at or promptly following the Effective Time, (v) subject to any contractual agreement in effect, obtaining the Payoff Letter, and the related lien releases, and instruments of termination reasonably requested by Parent or dischargeMerger Sub, as applicable, required pursuant to Section 6.12permit the consummation of the Debt Financing, in each case which shall provide that, if sufficient funds are received by the financing sources under the Credit Agreement in order to pay off in full all obligations and
(other than the Excluded Obligationsxi) in connection therewith or secured thereby, such release, termination and/or discharge shall be effective, and (vi) furnishing Parent as promptly as reasonably practical (and at least three (3) business days prior to the Closing Date) with , providing all documentation and other information related to about the Company and its Subsidiary required the Company Subsidiaries as is reasonably requested in writing by regulatory authorities under Parent or Merger Sub, as applicable, at least ten (10) business days prior to the Closing in connection with the Debt Financing that relates to applicable “know your customer” and anti-money laundering rules and regulationsregulations including without limitation the USA PATRIOT Act and the requirements of 31 C.F.R. §1010.230.
(b) The Company shall and shall cause each Company Subsidiary to use reasonable best efforts to (x) obtain customary payoff letters and lien terminations, including if applicable, to the PATRIOT Actextent necessary to allow for the payoff, that has been reasonably requested discharge and termination in writing by full of all obligations under the Credit Facility, in each case in form and substance customary for transactions of this type, (y) provide Parent or its Financing Sources with a copy of any such payoff letters and lien terminations at least ten two (102) business days prior to the Closing DateDate and (z) give (by the date required under the Credit Facility) any necessary notices (including notices of prepayment) to allow for the prepayment, payoff, discharge and termination in full of the Credit Facility at the Closing.
(c) Notwithstanding anything in this Agreement to the contrary, (A) neither the Company nor any Company Subsidiary shall be required to pay any commitment or other similar fee or enter into any binding agreement or commitment or incur any other actual or potential liability or obligation in connection with the Debt Financing that is not subject to the occurrence of the Closing, (B) no director, manager, officer or employee of the Company or any Company Subsidiary shall be required to deliver any certificate or take any other action pursuant to Section 6.19(a) to the extent any such action would reasonably be expected to result in personal liability to such director, manager, officer or employee, (C) none of the Company, any of the Company Subsidiaries or any of their respective directors or officers shall be obligated to adopt resolutions or execute consents to approve or authorize the execution of the Debt Financing, provided that this clause (C) shall not prohibit the adoption or execution of any resolutions or consents effective no earlier than the Closing Date by any persons that shall remain or will become officers or directors of the Company or any of the Company Subsidiaries as of the Effective Time, and (D) neither the Company nor any Company Subsidiary 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 Law, any Company Material Contract or any obligations of confidentiality (not created in contemplation hereof) binding on the Company or the Company Subsidiaries. The Company hereby consents to the use of its the Company’s and its Subsidiary’s the Company Subsidiaries’ logos in connection with the Financing so long as Debt Financing; provided, however, that such logos are used solely (i) in a an manner that is not intended intended, or reasonably likely, to harm, disparage or that is not reasonably likely to harm or disparage otherwise adversely affect the Company or its Subsidiary or the reputation or goodwill of the Company or its Subsidiary and (ii) solely in connection with a description of the Company, its business and products or the Merger.
(b) Notwithstanding the requirements of Section 6.16(a) or anything in this Agreement to the contrary, (i) neither the Company nor any of its Affiliates or their respective Representatives shall be required to enter into, approve or perform (or commit to enter into, approve or perform) any certificate, document, agreement, or instrument, in each case which will be effective prior to the Effective Time, (ii) nothing herein shall require cooperation contemplated thereby to the extent it would interfere unreasonably with the business or operations of the Company or any of its Affiliates or their respective Affiliates, (iii) none of the Company nor any of its Affiliates or their respective Representatives, will be required to (1) pay or commit to pay any commitment or other fee, (2) reimburse or incur any costs or expenses or incur any other liability (including any guarantee, indemnity or pledge) in connection with the Financing or the Marketing Documents prior to the Effective Time, (3) provide any financial data other than the Required Information, or (4) provide any legal opinion or reliance letters or any certificate (in the case of the Company or its Subsidiary that would be required to be delivered prior to the Effective Time), comfort letter or opinion of any of its Representatives, (iv) nothing herein will involve any binding commitment by the Company, any of its Affiliates or any of their respective Representatives which commitment is not conditioned on the Effective Time and does not terminate without liability to the Company, its Affiliates and their respective Representatives upon the termination of this Agreement, and (v) nothing herein will require the Company, any of its Affiliates or any of their respective Representatives to provide any information or take any action, the disclosure or taking of which would violate applicable Legal Requirements, any fiduciary duty, any Contract or obligation of confidentiality owing to a third party, or jeopardize the protection of the attorney-client privilege (or similar protections) held by the Company or any of its Affiliates; provided that, if the Company does not provide or cause its Representatives to provide such access or such information in reliance on the foregoing, then the Company shall (1) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1) any Representative of the Company or its Subsidiary to deliver any certificate or opinion or take any other action under this Section 6.16 that could reasonably be expected to result in personal liability to such Representative; (2) the Board of Directors (or any committee or subcommittee thereof) or the board of directors, managers, managing member or any similar controlling body of any Subsidiary of the Company to approve (or otherwise take any corporate or similar action with respect to) any financing (including the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) the Company and its Subsidiary to take any action that would conflict with or violate its organizational or governance documents or any applicable Legal Requirements, or result in the contravention of, or that could reasonably be expected to result in a violation of breach of, or default under, any agreement to which the Company or its Subsidiary is a party.
(c) Subject to any applicable Legal Requirements, all non-public or other confidential information provided by the Company, its Subsidiary or any of their respective Representatives pursuant to this Agreement will be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Purchaser will be permitted to disclose such information to any Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties to the Financing and to any underwriters, initial purchasers or placement agents in connection with the Financing (and, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; or (ii) are subject to other confidentiality undertakings reasonably satisfactory to the Company and of which the Company is a beneficiarysubsidiaries.
(d) If In the event that the Closing does not occur, Parent or Merger Sub, as applicable, shall, promptly upon request by the Company, Parent will reimburse the Company for any all reasonable and documented and reasonable out-of-pocket costs and expenses (including attorneys’ fees) incurred by the Company or its Subsidiary in connection with the cooperation of Company, the Company Subsidiaries and its Subsidiary contemplated by this Section 6.16 (it being understood and agreed that the reimbursement set forth in this Section 6.16(d) shall not apply to any fees, costs, and expenses incurred by, or on behalf of, the Company, its Subsidiary or any of its their respective Representatives in connection with its ordinary course financial reporting requirements or in the provision of data that, in each case, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding this their respective obligations pursuant to Section 6.166.19(a).
(e) The . Parent and Merger Sub shall indemnify, defend jointly and severally indemnify and hold harmless the Company, the Company Entities Subsidiaries and their respective Representatives Representatives, from and against any and all claims, losses, liabilities, damages, claims, interest, awards, judgments, penaltiesinquiries, fines and reasonable fees, costs and expenses expenses, including attorneys’ fees and disbursements suffered or incurred by any of them in connection with the Debt Financing and any information supplied or provided in connection therewith (including any action taken in accordance with this Section 6.16) and costs and expenses incurred in defending against the foregoing, except to the extent such lossessuffered or incurred as a result of (i) the gross negligence, damages, claims, costs willful misconduct or expenses arise from the willful material breach of this Agreement by the Company, any Company Subsidiary or any Representative thereof, in each case as finally determined by a court of competent jurisdiction, or from fraud on (ii) any inaccuracy (other than any immaterial inaccuracy) in the part historical financial information provided by the Company to Parent pursuant to clause (i) in the definition of the Company“Required Information”).
Appears in 1 contract
Samples: Merger Agreement (Anaplan, Inc.)
Financing Cooperation. (a) Subject Prior to Section 6.16(b), prior to Closing or termination of this Agreementthe Effective Time, the Company shall, and shall cause its Subsidiaries and their respective Representatives to, use reasonable best efforts to cause each of its Representatives to, reasonably cooperate with and reasonably assist Parent, at the Parent’s request, sole cost and expense, in connection with arranging, obtaining and syndicating any Financing and causing the conditions in the Financing Documents and any commitment letters entered into in connection with such Financing to be satisfied, including using reasonable best efforts in (i) assisting with, and furnishing information for the purposes of, the preparation of customary prospectuses (including any pro forma financial information and any information required under Article 18(2) of Commission Delegated Regulation (EU) 2019/980), offering documents, syndication documents and materials, including bank information memoranda and private placement memoranda, lender and investor presentations, rating agency materials and presentations and other customary marketing materials Parent in connection with the Financing arrangement of any Third Party Financing, including by taking the actions set forth on Exhibit 5.14; provided, that (all such documents and materials, collectively, the “Marketing Documents”i) (it being understood and agreed that the Marketing Documents shall include (or otherwise be subject to) any customary exculpation language, as the case may be, with respect to the Company, its Affiliates and their respective Representatives), (ii) furnishing to the Parent as promptly as reasonably practicable financial statements and operational information (including consolidated financial statements for interim periods up until the Closing Date) that can be prepared without undue burden with respect to the Company and its Subsidiary as is reasonably requested by Parent (the “Required Information”), (iii) assisting in the preparation of schedules to collateral agreements by providing information of the Company Entities required to be made available on such schedules for purposes of the arrangement or consummation of the Financing, (iv) subject to any contractual agreement in effect, facilitating the pledging of collateral for the Financing, which shall not be required to make any representation, warranty or certification as to which the Company has in its good faith determined that such representation, warranty or certification is not true, (ii) the Company shall not be delivered required to become subject to any obligations or effective until at liabilities with respect to such agreements or promptly following documents prior to the Effective TimeClosing, (iii) the Company shall not be required to provide cooperation under this Section 5.14 that unreasonably interferes with the ongoing business of the Company, (iv) the Company shall not be required to pay any commitment or other similar fee or enter into any definitive agreement or incur any other liability or obligation prior to the Closing, and (v) subject to any contractual agreement in effectParent shall, obtaining the Payoff Letter, and the related lien releases, and instruments of termination or discharge, as applicable, required pursuant to Section 6.12, in each case which shall provide that, if sufficient funds are received promptly upon request by the financing sources under the Credit Agreement in order to pay off in full all obligations (other than the Excluded Obligations) in connection therewith or secured thereby, such release, termination and/or discharge shall be effective, and (vi) furnishing Parent as promptly as reasonably practical (and at least three (3) business days prior to the Closing Date) with all documentation and other information related to the Company and its Subsidiary required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, that has been reasonably requested in writing receipt by Parent or its Financing Sources at least ten of documentation of all reasonable out-of pocket costs and expenses (10including attorneys’ fees) business days prior to incurred by the Closing Date. Company in connection with such cooperation, reimburse the Company for such costs and expenses.
(b) The Company hereby consents to the use of its and its Subsidiary’s logos in connection with the Financing so long as any Third Party Financing; provided, that such logos are used solely (i) in a manner that is not intended to or that and is not reasonably likely to harm or disparage the Company or its Subsidiary or the reputation or goodwill of the Company or its Subsidiary and (ii) solely in connection with a description of the Company, its business and products or the Merger.
(b) Notwithstanding the requirements of Section 6.16(a) or anything in this Agreement to the contrary, (i) neither the Company nor any of its Affiliates or their respective Representatives shall be required to enter into, approve or perform (or commit to enter into, approve or perform) any certificate, document, agreement, or instrument, in each case which will be effective prior to the Effective Time, (ii) nothing herein shall require cooperation contemplated thereby to the extent it would interfere unreasonably with the business or operations of the Company or any of its Affiliates or their respective Affiliates, (iii) none of the Company nor any of its Affiliates or their respective Representatives, will be required to (1) pay or commit to pay any commitment or other fee, (2) reimburse or incur any costs or expenses or incur any other liability (including any guarantee, indemnity or pledge) in connection with the Financing or the Marketing Documents prior to the Effective Time, (3) provide any financial data other than the Required Information, or (4) provide any legal opinion or reliance letters or any certificate (in the case of the Company or its Subsidiary that would be required to be delivered prior to the Effective Time), comfort letter or opinion of any of its Representatives, (iv) nothing herein will involve any binding commitment by the Company, any of its Affiliates or any of their respective Representatives which commitment is not conditioned on the Effective Time and does not terminate without liability to the Company, its Affiliates and their respective Representatives upon the termination of this Agreement, and (v) nothing herein will require the Company, any of its Affiliates or any of their respective Representatives to provide any information or take any action, the disclosure or taking of which would violate applicable Legal Requirements, any fiduciary duty, any Contract or obligation of confidentiality owing to a third party, or jeopardize the protection of the attorney-client privilege (or similar protections) held by the Company or any of its Affiliates; provided that, if the Company does not provide or cause its Representatives to provide such access or such information in reliance on the foregoing, then the Company shall (1) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1) any Representative of the Company or its Subsidiary to deliver any certificate or opinion or take any other action under this Section 6.16 that could reasonably be expected to result in personal liability to such Representative; (2) the Board of Directors (or any committee or subcommittee thereof) or the board of directors, managers, managing member or any similar controlling body of any Subsidiary of the Company to approve (or otherwise take any corporate or similar action with respect to) any financing (including the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) the Company and its Subsidiary to take any action that would conflict with or violate its organizational or governance documents or any applicable Legal Requirements, or result in the contravention of, or that could reasonably be expected to result in a violation of breach of, or default under, any agreement to which the Company or its Subsidiary is a party.
(c) Subject The Company shall use its reasonable best efforts to supplement any information required to be provided to any applicable Legal Requirements, all Third Party Financing Sources under this Section 5.14 on a reasonably current basis to the extent that any such information contains any material misstatement of fact or omits to state any material fact necessary to make such information not materially misleading.
(d) All non-public or other confidential information provided by the Company, its Subsidiary Company or any of their respective its Representatives pursuant to this Agreement will shall be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Purchaser will Merger Sub shall be permitted to disclose such information to any Third Party Financing Sources or prospective equity or debt financing sources Third Party Financing Sources and other financial institutions and investors that are or may become parties to the Financing Letters or the Limited Guarantor Investment Letter, or to their respective counsel and to any underwriters, initial purchasers or placement agents in connection with the Financing (andauditors, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; or (ii) are extent subject to other customary confidentiality undertakings reasonably satisfactory to the Company and arrangements for use by any of which the Company is a beneficiary.
(d) If the Closing does not occur, promptly upon request by the Company, Parent will reimburse the Company for any documented and reasonable out-of-pocket costs and expenses (including attorneys’ fees) incurred by the Company or its Subsidiary them of such information in connection with the cooperation of the Company and its Subsidiary contemplated by this Section 6.16 (it being understood and agreed that the reimbursement set forth in this Section 6.16(d) shall not apply to any fees, costs, and expenses incurred by, or on behalf of, the Company, its Subsidiary or any of its Representatives in connection with its ordinary course financial reporting requirements or in the provision of data that, in each case, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding this Section 6.16)Third Party Financing.
(e) The Parent shall indemnify, defend and hold harmless the Company Entities and their respective Representatives from and against any and all losses, damages, claims, interest, awards, judgments, penalties, costs and expenses suffered or incurred by any of them in connection with the Financing (including any action taken in accordance with this Section 6.16) and costs and expenses incurred in defending against the foregoing, except to the extent such losses, damages, claims, costs or expenses arise from the willful breach of this Agreement by the Company, as finally determined by a court of competent jurisdiction, or from fraud on the part of the Company.
Appears in 1 contract
Samples: Merger Agreement (Alco Stores Inc)
Financing Cooperation. (a) Subject Prior to Section 6.16(b), prior to Closing or termination of this Agreementthe Closing, the Company shall, and shall cause its Subsidiaries and their respective Representatives to, use reasonable best efforts to reasonably cooperate with provide to Parent and reasonably assist ParentMerger Sub, and shall cause each of its Subsidiaries to use its reasonable best efforts to provide, and shall use its reasonable best efforts to cause its Representatives, including legal and accounting, to provide, in each case at the Parent’s request, sole cost and expense, all cooperation reasonably requested by Parent and Merger Sub that is customary or necessary in connection with arranging, obtaining and syndicating any the Financing and causing the conditions in the Financing Documents and any commitment letters entered into in connection with such Financing Letters to be satisfied, including using reasonable best efforts in including:
(i) assisting with, and furnishing information for the purposes of, with the preparation of customary prospectuses (including any pro forma financial information and any information required under Article 18(2) of Commission Delegated Regulation (EU) 2019/980), offering documents, syndication documents and materials, including bank information memoranda and private placement memoranda, lender and investor presentations, rating agency materials and presentations and other customary marketing materials in connection with the Financing (all such documents and materials, collectively, the “Marketing Offering Documents”) (it being understood and agreed that the Marketing Documents shall include (or otherwise be subject to) any customary exculpation language, as the case may be, with respect to the Company, its Affiliates and their respective Representatives), ,
(ii) preparing and furnishing to Parent and the Parent Debt Financing Sources as promptly as reasonably practicable financial statements with all Required Information and operational all other available pertinent information (including consolidated financial statements for interim periods up until the Closing Date) that can be prepared without undue burden with respect and disclosures relating to the Company and its Subsidiary Subsidiaries (including their businesses, operations, financial projections and prospects) as is may be reasonably requested by Parent (and customary to assist in preparation of the “Required Information”), Offering Documents,
(iii) having the Company designate members of senior management of the Company to execute customary authorization letters with respect to Offering Documents and participate in a reasonable number of presentations, road shows, due diligence sessions, drafting sessions and sessions with ratings agencies in connection with the Financing, including direct contact between such senior management of the Company and its Subsidiaries and Parent’s Financing Sources and other potential lenders in the Financing,
(iv) assisting Parent in obtaining any corporate credit and family ratings from any ratings agencies contemplated by the Debt Commitment Letter,
(v) requesting the Company’s independent auditors to cooperate with Parent’s reasonable best efforts to obtain customary accountant’s comfort letters (including “negative assurance”) and consents from the Company’s independent auditors,
(vi) assisting in the preparation of, and executing and delivering, definitive financing documents, including guarantee and collateral documents and customary closing certificates as may be required by the Financing (including a certificate of schedules to collateral agreements by providing information an appropriate officer of the Company Entities required with respect to be made available on such schedules for purposes solvency of the arrangement or consummation of Company and its Subsidiaries on a consolidated basis to the Financing, extent required by the Debt Financing Sources) and other customary documents as may be reasonably requested by Parent,
(ivvii) subject to any contractual agreement in effect, facilitating the pledging of collateral for the Financing,
(viii) assisting the Financing sources in benefiting from the existing lending relationships of the Company and its Subsidiaries,
(ix) requesting from the Company’s existing lenders such customary documents in connection with refinancings as requested by Parent in connection with the Financing and collateral arrangements, which shall not be required to be delivered or effective until at or promptly following the Effective Timeincluding customary payoff letters, (v) subject to any contractual agreement in effect, obtaining the Payoff Letter, and the related lien releases, and instruments of termination or discharge, as applicable, required pursuant to Section 6.12, in each case which shall provide that, if sufficient funds are received by the financing sources under the Credit Agreement in order to pay off in full all obligations ,
(other than the Excluded Obligations) in connection therewith or secured thereby, such release, termination and/or discharge shall be effective, and (vix) furnishing Parent as promptly as reasonably practical (and at least three (3) business days prior to the Closing Date) Debt Financing Sources with all documentation and other information related required by Governmental Entities with respect to the Company and its Subsidiary required by regulatory authorities Debt Financing under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT ActUniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, that has been reasonably requested in writing by Parent or its Financing Sources at least ten as amended), and
(10xi) business days prior cooperating with Parent, and taking all corporate actions, subject to the Closing Date. The Company hereby consents to the use occurrence of its and its Subsidiary’s logos in connection with the Financing so long as such logos are used solely (i) in a manner that is not intended to or that is not reasonably likely to harm or disparage the Company or its Subsidiary or the reputation or goodwill of the Company or its Subsidiary and (ii) solely in connection with a description of the Company, its business and products or the Merger.
(b) Notwithstanding the requirements of Section 6.16(a) or anything in this Agreement to the contrary, (i) neither the Company nor any of its Affiliates or their respective Representatives shall be required to enter into, approve or perform (or commit to enter into, approve or perform) any certificate, document, agreement, or instrument, in each case which will be effective prior to the Effective Time, reasonably requested by Parent to permit the consummation of the Financing; provided, however, that (iiA) nothing herein in this Section 7.13(b) shall require such cooperation contemplated thereby to the extent it would interfere unreasonably with the business or operations of the Company or any of its Affiliates or their respective AffiliatesSubsidiaries, (iiiB) none of neither the Company nor any of its Affiliates or their respective Representatives, will Subsidiaries shall be required to (1) pay or commit to pay any commitment or other fee, (2) reimburse or incur any costs or expenses or incur liability that is not contingent upon the Closing (or, without limitation of the foregoing, execute any other liability definitive financing documents (including any guarantee, indemnity or pledgeexcept the authorization letter delivered pursuant to the foregoing clause (iii)) in connection with the Financing or the Marketing Documents prior to the Effective Time, (3) provide any financial data other than the Required Information, or (4) provide any legal opinion or reliance letters Closing or any certificate (in the case of the Company other agreement, certificate, document or its Subsidiary instrument that would be required to be delivered effective prior to the Effective Time), comfort letter or opinion of any of its Representatives, (ivClosing) nothing herein will involve any binding commitment by the Company, any of its Affiliates or any of their respective Representatives which commitment is not conditioned on the Effective Time and does not terminate without liability to the Company, its Affiliates and their respective Representatives upon the termination of this Agreement, and (vC) nothing herein will require the Company, any of its Affiliates or any of their respective Representatives to provide any information or take any action, the disclosure or taking of which would violate applicable Legal Requirements, any fiduciary duty, any Contract or obligation of confidentiality owing to a third party, or jeopardize the protection none of the attorney-client privilege boards of directors (or similar protectionsequivalent bodies) held by of the Company or any of its Affiliates; provided that, if the Company does not provide or cause its Representatives Subsidiary shall be required to provide such access or such information in reliance on the foregoing, then the Company shall (1) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1) enter into any Representative of the Company or its Subsidiary to deliver any certificate or opinion resolutions or take any other action under this Section 6.16 that could reasonably be expected to result in personal liability to such Representative; (2) the Board of Directors (or any committee or subcommittee thereof) or the board of directors, managers, managing member or any similar controlling body of any Subsidiary of the Company to approve (or otherwise take any corporate or similar action with respect to) any financing (including approving the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) . Parent shall indemnify and hold harmless the Company and its Subsidiary to take any action that would conflict with or violate its organizational or governance documents or any applicable Legal Requirements, or result in the contravention of, or that could reasonably be expected to result in a violation of breach of, or default under, any agreement to which the Company or its Subsidiary is a party.
(c) Subject to any applicable Legal Requirements, all non-public or other confidential information provided by the Company, its Subsidiary or any of Subsidiaries and their respective Representatives pursuant to this Agreement will be kept confidential in accordance with the Confidentiality Agreementfrom and against any and all liabilities, except that Parent losses, damages, claims, costs, expenses (including attorneys’ fees), interest, awards, judgments and Purchaser will be permitted to disclose such information to any Financing Sources penalties suffered or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties to the Financing and to any underwriters, initial purchasers or placement agents incurred in connection with the Financing (and, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; or (ii) are subject to other confidentiality undertakings reasonably satisfactory to the Company and of which the Company is a beneficiary.
(d) If the Closing does not occurthis Section 7.13(b). Parent shall, promptly upon request by the Company, Parent will reimburse the Company for any documented and all reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred by the Company or its Subsidiary Subsidiaries in connection with the cooperation this Section 7.13(b). Parent shall cause all non-public or confidential information provided by or on behalf of the Company and its Subsidiary contemplated by this Section 6.16 (it being understood and agreed that the reimbursement set forth in this Section 6.16(d) shall not apply to any fees, costs, and expenses incurred by, or on behalf of, the Company, its Subsidiary or any of its Representatives in connection with its ordinary course financial reporting requirements or in the provision of data that, in each case, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding Subsidiaries pursuant to this Section 6.16).
(e7.13(b) The Parent shall indemnify, defend and hold harmless the Company Entities and their respective Representatives from and against any and all losses, damages, claims, interest, awards, judgments, penalties, costs and expenses suffered or incurred by any of them in connection with the Financing (including any action taken to be kept confidential in accordance with this Section 6.16) and costs and expenses incurred in defending against the foregoing, except to the extent such losses, damages, claims, costs or expenses arise from the willful breach of this Agreement by the Company, as finally determined by a court of competent jurisdiction, or from fraud on the part of the CompanyConfidentiality Agreements.
Appears in 1 contract
Samples: Merger Agreement (Heinz H J Co)
Financing Cooperation. (a) Subject to Section 6.16(b), prior to Closing or termination of this Agreement, the Company shall, and Parent shall cause use its Subsidiaries and their respective Representatives to, use reasonable best efforts to reasonably cooperate with take, or cause to be taken, all actions and reasonably assist Parentto do, at or cause to be done, all things necessary, proper or advisable to consummate and obtain the Parent’s request, sole cost Financing on the terms and expense, in connection with arranging, obtaining and syndicating any Financing and causing the conditions described in the Financing Documents and any commitment letters entered into in connection with such Financing to be satisfiedCommitment Letter, including using reasonable best efforts in to (i) assisting withmaintain in effect the Commitment Letter, (ii) negotiate definitive agreements with respect thereto on terms and conditions (including the “flex” provisions) contemplated by the Commitment Letter and execute and deliver to the Company a copy thereof concurrently with such execution, (iii) satisfy on a timely basis all conditions applicable to Parent in the Commitment Letter that are within its control and comply with its obligations thereunder, (iv) provide prior to the Effective Time the lenders under the Commitment Letter with such evidence as may be requested by such lenders to demonstrate the satisfaction of the condition set forth in Paragraph 2 of Annex D to the Commitment Letter, including if necessary by requesting that Xxxxx’x Investors Services, Inc. and Standard & Poor’s provide written evidence thereof at the Closing and (v) enforce its rights under the Commitment Letter in the event of a breach by the financing sources that impedes or delays Closing, including seeking specific performance of the parties thereunder. In the event that all conditions to the Commitment Letter have been satisfied or, upon funding will be satisfied, Parent and Merger Sub shall use their reasonable best efforts to cause the lenders and the other Persons providing such Financing to fund on the Closing Date the Financing required to consummate the Merger and the other transactions contemplated by this Agreement (including by taking enforcement action, including seeking specific performance, to cause such lenders and the other Persons providing such Financing to fund such Financing). Parent shall have the right from time to time to amend, replace, supplement or otherwise modify, or waive any of its rights under, the Commitment Letter and/or substitute other debt or equity financing for all or any portion of the Financing from the same and/or alternative financing sources, provided that any such amendment, replacement, supplement or other modification to or waiver of any provision of the Commitment Letter that amends the Financing and/or substitution of all or any portion of the Financing shall not (A) expand upon the conditions precedent or contingencies to the Financing as set forth in the Commitment Letter or (B) prevent or impede or delay the consummation of the Merger and the other transactions contemplated by this Agreement. Parent shall be permitted to reduce the amount of Financing under the Commitment Letter in its reasonable discretion, provided, that Parent shall not reduce the Financing to an amount committed below the amount that is required, together with the financial resources of Parent and Merger Sub, including cash on hand and marketable securities, to consummate the Merger, and furnishing information for provided further that such reduction shall not (A) expand upon the purposes ofconditions precedent or contingencies to the Financing as set forth in the Commitment Letter or (B) prevent or impede or delay the consummation of the Merger and the other transactions contemplated by this Agreement. If any portion of the Financing becomes unavailable or Parent becomes aware of any event or circumstance that makes any portion of the Financing unavailable, in each case, on the preparation of customary prospectuses terms and conditions (including the “flex” provisions) contemplated in the Commitment Letter and such portion is reasonably required to fund the Merger Consideration, Parent shall use its reasonable best efforts to arrange and obtain alternative financing from alternative financial institutions in an amount sufficient to consummate the transactions contemplated by this Agreement upon conditions no less favorable to Parent and the Company than those in the Commitment Letter as promptly as practicable following the occurrence of such event. Parent shall give the Company prompt oral and written notice (but in any pro forma financial information and any information required under Article 18(2event not later than 48 hours after the occurrence) of Commission Delegated Regulation any material breach by any party to the Commitment Letter or of any condition not likely to be satisfied, in each case, of which Parent becomes aware or any termination of the Commitment Letter. Parent shall keep the Company informed on a reasonably current basis of the status of its efforts to arrange the Financing.
(EUb) 2019/980)The Company shall provide, offering documentsand shall cause its Subsidiaries, syndication documents and materialsshall use its reasonable best efforts to cause each of its and their respective Representatives, including bank information memoranda legal, tax, regulatory and private placement memorandaaccounting, lender and investor presentations, rating agency materials and presentations and other customary marketing materials to provide all cooperation reasonably requested by Parent in connection with the Financing (all provided that such documents requested cooperation does not unreasonably interfere with the ongoing operations of the Company and materials, collectively, the “Marketing Documents”) (it being understood and agreed that the Marketing Documents shall include (or otherwise be subject to) any customary exculpation language, as the case may be, with respect to the Company, its Affiliates and their respective RepresentativesSubsidiaries), including (iii) furnishing to the Parent as promptly as reasonably practicable financial statements and operational providing information (including consolidated financial statements for interim periods up until the Closing Date) that can be prepared without undue burden with respect relating to the Company and its Subsidiary as is Subsidiaries to the Financing Parties (including information to be used in the preparation of an information package regarding the business, operations, financial projections and prospects of Parent and the Company customary for such financing or reasonably necessary for the completion of the Financing by the Financing Parties) to the extent reasonably requested by Parent to assist in preparation of customary offering or information documents to be used for the completion of the Financing as contemplated by the Commitment Letter, (ii) participating in a reasonable number of meetings (including customary one-on-one meetings with the “Required Information”parties acting as lead arrangers for the Financing and senior management and Representatives, with appropriate seniority and expertise, of the Company), presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the rating agencies, (iii) assisting in the preparation of schedules to collateral agreements by providing (A) any customary offering documents, bank information of the Company Entities required to be made available on such schedules memoranda, prospectuses and similar documents (including historical and pro forma financial statements and information) for purposes of the arrangement or consummation any of the Financing, and (B) materials for rating agency presentations, (iv) subject to cooperating with the marketing efforts for any contractual agreement in effect, facilitating of the pledging of collateral for the Financing, which shall not be required to be delivered or effective until at or promptly following the Effective Time, Financing (v) subject to any contractual agreement in effect, obtaining the Payoff Letter, and the related lien releases, and instruments of termination or discharge, as applicable, required pursuant to Section 6.12, in each case which shall provide that, if sufficient funds are received by the financing sources under the Credit Agreement in order to pay off in full all obligations (other than the Excluded Obligations) in connection therewith or secured thereby, such release, termination and/or discharge shall be effective, and (vi) furnishing Parent as promptly as reasonably practical (and at least three (3) business days prior to the Closing Date) with all documentation and other information related to the Company and its Subsidiary required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, that has been reasonably requested in writing by Parent or its Financing Sources at least ten (10) business days prior to the Closing Date. The Company hereby consents consenting to the use of its the Company’s and its Subsidiary’s logos in connection with the Financing so long as Subsidiaries’ logos; provided that such logos are used solely (i) in a manner that is not intended to or that is not reasonably likely to harm or disparage the Company or its Subsidiary Subsidiaries or the reputation or goodwill of the Company or any of its Subsidiaries), (v) executing and delivering (or using reasonable best efforts to obtain from its advisors), and causing its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), customary certificates (including a certificate of the principal financial officer of the Company or any Subsidiary with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing), legal opinions or other documents and (ii) solely instruments relating to guarantees and other matters ancillary to the Financing as may be reasonably requested by Parent as necessary and customary in connection with a description the Financing, (vi) assisting in (A) the preparation of and entering into one or more credit agreements, currency or interest hedging agreements, or other agreements or (B) the amendment of any of the Company’s or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements, or other agreements, in each case, on terms satisfactory to Parent and that are reasonably requested by Parent in connection with the Financing provided that no obligation of the Company or any of its business Subsidiaries under any such agreements or amendments shall be effective until the Effective Time, (vii) as promptly as practicable, furnishing Parent and products the Financing Parties with all financial and other information regarding the Company and its Subsidiaries as may be reasonably requested by Parent to assist in preparation of customary offering or information documents to be used for the Merger.
completion of the Financing as contemplated by the Commitment Letter, (bviii) Notwithstanding 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 the requirements of Section 6.16(a) or anything in this Agreement Company and its Subsidiaries to be made available to the contraryParent and/or Merger Sub at the Closing, (ix) providing authorization letters to the Financing Parties authorizing the distribution of information to prospective lenders and containing a representation to the Financing Parties that the public side versions of such documents, if any, do not include material non-public information about the Company or its Affiliates or securities, (xi) using its reasonable best efforts to ensure that the Financing Parties benefit from the existing lending relationships of the Company and its Subsidiaries, (xii) providing audited consolidated financial statements of the Company 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 the Company ended after the date of the most recent audited financial statements and at least 45 days prior to the Closing Date, (xiii) cooperating reasonably with Parent’s financing sources’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of the Company and (xiv) terminating and repaying in full the commitments under the Credit Agreement, dated as of August 2, 2007, among the Company, the lenders party thereto, and JPMorgan Chase Bank, N.A., as administrative agent, on or prior to the Closing Date; provided that, until the Effective Time occurs, neither the Company nor any of its Affiliates or their respective Representatives Subsidiaries shall (i) be required to enter into, approve or perform (or commit to enter into, approve or perform) any certificate, document, agreement, or instrument, in each case which will be effective prior to the Effective Time, (ii) nothing herein shall require cooperation contemplated thereby to the extent it would interfere unreasonably with the business or operations of the Company or any of its Affiliates or their respective Affiliates, (iii) none of the Company nor any of its Affiliates or their respective Representatives, will be required to (1) pay or commit to pay any commitment or other similar fee, (2ii) reimburse have any liability or incur any costs obligation under any credit agreement or expenses any related document or any other agreement or document related to the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement) or (iii) be required to incur any other liability (including any guarantee, indemnity or pledge) in connection with the Financing or the Marketing Documents prior to the Effective Time, (3) provide any financial data other than the Required Information, or (4) provide any legal opinion or reliance letters or any certificate alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement) unless reimbursed or reasonably satisfactorily indemnified by Parent. Parent (in i) shall promptly, upon request by the case of Company, reimburse the Company or its Subsidiary that would be required to be delivered prior to the Effective Time), comfort letter or opinion of any of its Representatives, for all reasonable out-of-pocket costs (ivincluding reasonable attorneys’ fees) nothing herein will involve any binding commitment incurred by the Company, any of its Affiliates Subsidiaries or any of their respective Representatives which commitment is not conditioned on the Effective Time and does not terminate without liability to the Company, its Affiliates and their respective Representatives upon the termination of this Agreement, and (v) nothing herein will require the Company, any of its Affiliates or any of their respective Representatives to provide any information or take any action, the disclosure or taking of which would violate applicable Legal Requirements, any fiduciary duty, any Contract or obligation of confidentiality owing to a third party, or jeopardize the protection of the attorney-client privilege (or similar protections) held by the Company or any of its Affiliates; provided that, if the Company does not provide or cause its Representatives to provide such access or such information in reliance on the foregoing, then the Company shall (1) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1) any Representative of the Company or its Subsidiary to deliver any certificate or opinion or take any other action under this Section 6.16 that could reasonably be expected to result in personal liability to such Representative; (2) the Board of Directors (or any committee or subcommittee thereof) or the board of directors, managers, managing member or any similar controlling body of any Subsidiary of the Company to approve (or otherwise take any corporate or similar action with respect to) any financing (including the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) the Company and its Subsidiary to take any action that would conflict with or violate its organizational or governance documents or any applicable Legal Requirements, or result in the contravention of, or that could reasonably be expected to result in a violation of breach of, or default under, any agreement to which the Company or its Subsidiary is a party.
(c) Subject to any applicable Legal Requirements, all non-public or other confidential information provided by the Company, its Subsidiary or any of their respective Representatives pursuant to this Agreement will be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Purchaser will be permitted to disclose such information to any Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties to the Financing and to any underwriters, initial purchasers or placement agents in connection with the Financing (and, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; or (ii) are subject to other confidentiality undertakings reasonably satisfactory to the Company and of which the Company is a beneficiary.
(d) If the Closing does not occur, promptly upon request by the Company, Parent will reimburse the Company for any documented and reasonable out-of-pocket costs and expenses (including attorneys’ fees) incurred by the Company or its Subsidiary in connection with the cooperation of the Company and its Subsidiary Subsidiaries contemplated by this Section 6.16 6.13, (it being understood ii) acknowledges and agreed agrees that the reimbursement set forth in this Section 6.16(d) shall not apply to any fees, costs, and expenses incurred by, or on behalf of, the Company, its Subsidiary Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing or any of its Representatives alternative financing that Parent may raise in connection with its ordinary course financial reporting requirements or in the provision of data that, in each case, was already prepared or was being prepared transactions contemplated by this Agreement and (iii) shall indemnify and hold harmless the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding this Section 6.16).
(e) The Parent shall indemnify, defend and hold harmless the Company Entities Subsidiaries and their respective Representatives from and against any and all losses, damages, claims, interest, awards, judgments, penalties, costs and or expenses suffered or incurred by any of them in connection with the arrangement of the Financing and any information used in connection therewith, except with respect to any information provided by the Company or any of its Subsidiaries.
(c) In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including any action taken as a result of obtaining alternative financing in accordance with this Section 6.166.13(a), or if Parent substitutes other debt or equity financing for all or a portion of the Financing, each of Parent and the Company shall comply with its covenants in Section 6.13(a) and costs and expenses incurred in defending against the foregoing, except (b) with respect to the Commitment Letter as so amended, replaced, supplemented or otherwise modified and with respect to such other debt or equity financing to the same extent such losses, damages, claims, costs or expenses arise from that Parent and the willful breach of this Agreement by Company would have been obligated to comply with respect to the Company, as finally determined by a court of competent jurisdiction, or from fraud on the part of the CompanyFinancing.
Appears in 1 contract
Samples: Merger Agreement (Wyeth)
Financing Cooperation. (a) Subject Prior to Section 6.16(b)and, prior to Closing or termination of this Agreementif applicable, concurrently with the Closing, the Company shall, and shall cause its Subsidiaries and their respective Representatives to, use its and their (and its and their Representatives’) reasonable best efforts to provide such cooperation as may be reasonably cooperate with and reasonably assist Parent, at the Parent’s request, sole cost and expense, requested by Parent in connection with arrangingthe arrangement of the Financing; provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries. Without limiting the generality of the foregoing sentence, obtaining prior to the Closing, the Company shall, and syndicating any shall cause its Subsidiaries to, use its and their reasonable best efforts to: (i) as promptly as practicable provide information (financial or otherwise) relating to the Company and its Subsidiaries to Parent and to the Financing and causing the conditions Sources (including information to be used in the Financing Documents preparation of an information package regarding the business, operations, financial condition, financial projections and any commitment letters entered into prospects of Parent and the Company that is customary or reasonably necessary for the completion of such financing) to the extent reasonably requested by Parent in connection with such Financing to be satisfied, including using reasonable best efforts in (i) assisting with, and furnishing information for the purposes of, the Parent’s preparation of customary prospectuses offering or information documents to be used for the completion of the Financing, (including any pro forma financial information ii) cooperate and any information required under Article 18(2) assist with the due diligence, rating agency processes and marketing efforts of Commission Delegated Regulation (EU) 2019/980)Parent, offering documents, syndication documents its Representatives and materialsthe Financing Sources, including bank participating in a reasonable number of meetings, due diligence sessions and road shows, at times and at locations reasonably acceptable to the Company and ensuring that any syndication efforts benefit from the existing lending and investment banking relationships of the Company, (iii) reasonably assist Parent in preparing customary offering memoranda, rating agency presentations, lender presentations, confidential information memoranda and private placement memoranda, lender financial statements (including pro forma and investor presentationsprojected financial statements), rating agency materials and presentations prospectuses and other customary marketing materials in connection with similar documents, including delivery of (A) audited consolidated balance sheets and related audited statements of income, stockholders’ equity and cash flows of the Financing Company for each of the three (all 3) fiscal years most recently ended at least 90 days prior to the Closing Date (and audit reports for such documents and materials, collectively, the “Marketing Documents”) (it being understood and agreed that the Marketing Documents financial statements shall include (or otherwise not be subject to) to any customary exculpation language, as the case may be, with respect to the Company, its Affiliates and their respective Representatives“going concern” qualifications), (iiB) furnishing unaudited consolidated balance sheets and related unaudited statements of income, comprehensive income, stockholders’ equity and cash flows of the Company for each subsequent fiscal quarter ended more than 45 days prior to the Closing Date and (C) all other historical financial and other information regarding the Company reasonably necessary to permit Parent as promptly as reasonably practicable to prepare pro forma and projected financial statements customary for the Financing or the Alternative Financing, (iv) make available, on a customary and operational reasonable basis and upon reasonable notice, appropriate personnel, including senior management and Representatives of the Company and its Subsidiaries, documents and information (including consolidated financial statements for interim periods up until the Closing Date) that can be prepared without undue burden with respect relating to the Company and its Subsidiary Subsidiaries, in each case, as is may be reasonably requested by Parent (or the “Required Information”)Financing Sources, (iii) assisting or as may be requested by the SEC, in connection with the preparation of schedules to collateral agreements by providing information completion of the Company Entities required to be made available on such schedules for purposes of Financing or the arrangement or consummation of the Alternative Financing, (iv) subject to any contractual agreement in effect, facilitating the pledging of collateral for the Financing, which shall not be required to be delivered or effective until at or promptly following the Effective Time, (v) subject provide to any contractual agreement in effect, obtaining Parent and the Payoff LetterFinancing Sources promptly, and the related lien releases, and instruments of termination or discharge, as applicable, required pursuant to Section 6.12, in each case which shall provide that, if sufficient funds are received by the financing sources under the Credit Agreement in order to pay off in full all obligations (other than the Excluded Obligations) in connection therewith or secured thereby, such release, termination and/or discharge shall be effective, and (vi) furnishing Parent as promptly as reasonably practical (and any event at least three (3) business days Business Days prior to the Closing Date) with , all documentation and other information related to about the Company and its Subsidiary Affiliates required by the Financing Sources or regulatory authorities with respect to the Financing under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, that has been reasonably is required under the Commitment Letter to the extent such documentation and other information is requested in writing by Parent or its Financing Sources to the Company at least ten (10) business days 10 Business Days prior to the Closing Date. The Company hereby , (vi) obtain any necessary consents from the Company’s independent public accounting firm in connection with any filings with the SEC, (vii) obtain customary comfort letters and consents from the Company’s independent public accounting firm for use of their reports in any materials relating to the use Financing or the Alternative Financing and in connection with any filings required to be made by Parent with the SEC, (viii) subject to customary confidentiality provisions, provide customary “10b-5” certifications and authorization letters to the Financing Sources authorizing the distribution of its information to prospective lenders, (ix) deliver notices of prepayment and/or notices for termination of commitments within the time periods required in connection with the prepayment of any indebtedness or other obligations of the Company, including the Credit Agreement, and obtain customary payoff letters and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of such indebtedness or other obligations, including the Credit Agreement, (x) reasonably assist with the pledging of collateral and the preparation of the definitive documentation for the Financing or the Alternative Financing, including by providing information reasonably necessary for the completion of any schedules thereto, in each case to the extent, and solely to the extent, such materials relate to information concerning the Company and its Subsidiary’s logos Subsidiaries, (xi) provide or cause to be provided any customary certificates, or other customary closing documents as may reasonably be requested in connection with the Financing so long as and the Alternative Financing and (xii) consent to the use of the trademarks, service marks and logos of the Company or any of its Subsidiaries in connection with the Financing; provided that such trademarks, service marks and logos are used solely (i) in a manner that is not intended to or that is not reasonably likely to harm or disparage the Company or any of its Subsidiary or Subsidiaries and in conformance with the reputation or goodwill of Company’s quality control guidelines and procedures as provided to Parent by the Company or its Subsidiary and prior to the date of this Agreement (ii) solely in connection it being understood that all goodwill associated with a description such use shall inure to the sole benefit of the Company, its business and products or the Merger.
(b) ). Notwithstanding the requirements of Section 6.16(a) or anything in this Agreement to the contraryforegoing, (i1) neither the Company nor any of its Affiliates Subsidiaries shall be required to pay any commitment or other similar fee or incur prior to the Closing any other liability or obligation in connection with the Financing, unless Parent reimburses or is required to reimburse or indemnify the Company and its Subsidiaries pursuant to this Agreement or otherwise agrees to do so, (2) none of the Company, its Subsidiaries or their respective Representatives shall be required to execute or enter into, approve into or perform (any agreement with respect to the Financing that is not contingent upon the Closing occurring or commit to enter into, approve or perform) any certificate, document, agreement, or instrument, in each case which will that would be effective prior to the Effective TimeClosing (other than the “10b-5” certifications and authorization letters contemplated by clause (viii) of this Section 6.17(a) and for the avoidance of doubt, the boards of directors or other equivalent governing bodies of Parent, Merger Sub, and/or the Surviving Corporation shall enter into or provide any resolutions, consents, approvals or other closing arrangements on behalf of the Company and its Subsidiaries as may be required by the Financing Sources pursuant to the Commitment Letter at, or as of, the Closing), and (ii3) nothing herein shall require cooperation contemplated thereby obligate the Company or any of its Subsidiaries to (a) take any action in respect of the Financing to the extent it that such action would cause any condition to Closing set forth in Article VII to fail to be satisfied by the Outside Date or otherwise result in a breach of this Agreement by the Company, (b) take any action to the extent such action would unreasonably interfere unreasonably with the business or operations of the Company or its Subsidiaries, (c) issue in its own name any bank information memoranda or high-yield offering prospectuses or memoranda required in relation to the Financing (it being understood that any such information memoranda or prospectus or memoranda shall reflect the Surviving Corporation and all or certain of its Affiliates Subsidiaries as obligors) or their respective Affiliates, (iiid) none of the Company nor any of its Affiliates or their respective Representatives, will be required to (1) pay or commit to pay any commitment or other fee, (2) reimburse or incur any costs or expenses or incur any other liability (including any guarantee, indemnity or pledge) in connection with the Financing or the Marketing Documents prior to the Effective Time, (3) provide any financial data other than the Required Informationprovide, or (4) provide cause to be provided, any legal opinion by its counsel, or reliance letters to provide, or cause to be provided, any certificate (information or take, or cause to be taken, any action to the extent it would reasonably be expected, in the case reasonable judgment of the Company or its Subsidiary that would be required to be delivered prior to the Effective Time), comfort letter or opinion of any of its Representatives, (iv) nothing herein will involve any binding commitment by the Company, any of its Affiliates or any of their respective Representatives which commitment is not conditioned on the Effective Time and does not terminate without liability to the Company, its Affiliates and their respective Representatives upon the termination of this Agreement, and (v) nothing herein will require the Company, any of its Affiliates or any of their respective Representatives to provide any information or take any action, the disclosure or taking of which would violate applicable Legal Requirements, any fiduciary duty, any Contract or obligation of confidentiality owing to a third party, or jeopardize the protection of the attorney-client privilege (or similar protections) held by the Company or any of its Affiliates; provided that, if the Company does not provide or cause its Representatives to provide such access or such information in reliance on the foregoing, then the Company shall (1) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1) any Representative of the Company or its Subsidiary to deliver any certificate or opinion or take any other action under this Section 6.16 that could reasonably be expected to result in personal liability to such Representative; (2) the Board of Directors (or any committee or subcommittee thereof) or the board of directors, managers, managing member or any similar controlling body of any Subsidiary of the Company to approve (or otherwise take any corporate or similar action with respect to) any financing (including the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) the Company and its Subsidiary to take any action that would conflict with or violate its organizational or governance documents or any applicable Legal Requirements, or result in the contravention of, or that could reasonably be expected to result in a violation of breach of, the Company’s or default under, any agreement to which the Company of its Subsidiaries’ organizational documents or its Subsidiary is a partyapplicable Law or loss of any privilege.
(cb) Subject to any applicable Legal Requirements, all non-public or other confidential information provided by the Company, its Subsidiary or any of their respective Representatives pursuant to this Agreement will be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Purchaser will be permitted to disclose such information to any Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties to the Financing and to any underwriters, initial purchasers or placement agents in connection with the Financing (and, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; or (ii) are subject to other confidentiality undertakings reasonably satisfactory to the Company and of which the Company is a beneficiary.
(d) If the Closing does not occurshall, promptly upon written request by the Company, Parent will reimburse the Company for any all reasonable and documented and reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiary Subsidiaries in connection with the satisfying its obligations under this Section 6.17 or other cooperation of provided by the Company and its Subsidiary contemplated by this Section 6.16 (it being understood and agreed that the reimbursement set forth in this Section 6.16(d) shall not apply to any fees, costs, and expenses incurred by, or on behalf of, the Company, its Subsidiary or any of its Representatives in connection with Subsidiaries or any of its ordinary course financial reporting requirements or in their respective Representatives) at the provision request of data thatParent (or any of its Subsidiaries or any of its or their respective Representatives). Parent and Merger Sub shall, in each caseon a joint and several basis, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding this Section 6.16).
(e) The Parent shall indemnify, defend indemnify and hold harmless the Company Entities and its Subsidiaries and their respective Representatives from and against any and all losses, claims, damages, claimsliabilities, interestcosts, awardsexpenses, fees (including reasonable attorneys’ fees), judgments, penaltiesfines, costs penalties and expenses amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of any thereof) suffered or incurred in connection with any action taken by the Company, any of them its Subsidiaries or any of their respective Representatives pursuant to this Section 6.17 or other cooperation provided by the Company (or any of its Subsidiaries or any of its or their respective Representatives) at the request of Parent (or any of its Subsidiaries or any of its or their respective Representatives) (other than the use of any information provided by the Company, any of its Subsidiaries or any of their respective Representatives for use in connection with the Financing (including any action taken in accordance with this Section 6.16) and costs and expenses incurred in defending against the foregoingFinancing), except to the extent such losses, claims, damages, claimsliabilities, costs or expenses arise from the willful breach of this Agreement by the Companycosts, as finally expenses, fees, judgments, fines, penalties and amounts paid in settlement are determined by a final non-appealable judgment of a court of competent jurisdictionjurisdiction to have arisen out of, or from fraud on resulted from, the part gross negligence or willful misconduct of the Company, any of its Subsidiaries or any of their respective Representatives.
Appears in 1 contract
Financing Cooperation. (a) Subject to Section 6.16(b), prior to Until the earlier of the Closing or and the termination of this AgreementAgreement pursuant to Article VIII, the Company shallshall use commercially reasonable efforts to provide, and shall cause its Subsidiaries and use commercially reasonable efforts to cause its and their respective Representatives toto provide, use reasonable best efforts to reasonably cooperate with and reasonably assist Parentsuch cooperation, at the Parent’s request, sole cost and expense, as may be reasonably requested by Parent in connection with arranging, obtaining and syndicating any Financing and causing the conditions in the Financing Documents and any commitment letters entered into in connection with such Financing to be satisfied, including using reasonable best efforts in (i) assisting with, and furnishing information for the purposes with any evaluation or analysis of, or diligence with respect to, the preparation existing Indebtedness of the Company or any of its Subsidiaries, including (a) reasonably promptly furnishing any pertinent and customary prospectuses information regarding the Company and its Subsidiaries as may be reasonably requested by Parent relating to the existing Indebtedness of the Company or any of its Subsidiaries (including using commercially reasonable efforts to ensure that lenders and/or holders of the existing Indebtedness of the Company or any pro forma financial information and any information required under Article 18(2) of Commission Delegated Regulation (EU) 2019/980), offering documents, syndication documents and materials, including bank information memoranda and private placement memoranda, lender and investor presentations, rating agency materials and presentations and other customary marketing materials in connection with the Financing (all such documents and materials, collectively, the “Marketing Documents”) (it being understood and agreed that the Marketing Documents shall include (or otherwise be subject to) any customary exculpation language, as the case may be, with respect to the Company, its Affiliates Subsidiaries and their respective Representatives), (ii) furnishing to the Parent as promptly as reasonably practicable financial statements advisors and operational information (including consolidated financial statements for interim periods up until the Closing Date) that can be prepared without undue burden with respect consultants shall have sufficient access to the Company and its Subsidiary Subsidiaries and its and their respective Representatives) and (b) upon reasonable notice and at reasonable, mutually agreed times and locations, participating in meetings and presentations with lenders and/or holders of the existing Indebtedness of the Company or any of its Subsidiaries (in each case which shall be telephonic or virtual meetings or sessions, as is circumstances require) and (ii) with any consents from, or agreements with, lenders or noteholders, or any internal reorganization transactions, in each case with respect to the assumption of the existing Indebtedness of the Company by Parent (other than, for the avoidance of doubt, the Company Credit Facility) and the waiver of any requirement to consummate any redemption thereof.
(b) Until the earlier of the Closing and the termination of this Agreement pursuant to Article VIII, the Company shall use commercially reasonable efforts to provide, and shall cause its Subsidiaries and use commercially reasonable efforts to cause its and their respective Representatives to provide, such cooperation, at Parent’s sole cost and expense, as may be reasonably requested by Parent in connection with the arrangement of any debt financing that may be arranged by Parent or any of its Affiliates in connection with the Transactions (the “Required InformationDebt Financing”), including by using commercially reasonable efforts to (i) upon reasonable advance notice and at mutually agreeable times and locations, participate in a reasonable number of bank meetings, due diligence sessions and similar presentations to and with prospective arrangers, underwriters or lenders with respect to the Debt Financing (including the parties to any commitment letters, engagement letters, joinder agreements, indentures or credit agreements entered into pursuant to or relating to any Debt Financing, the “Debt Financing Sources”) and rating agencies, including direct contact between senior management and the other Representatives of the Company, on the one hand, and the actual and potential Debt Financing Sources and ratings agencies, on the other hand, (ii) furnish Parent with such customary historical financial and other factual information that is readily available to, and in the form customarily prepared by, the Company and its Subsidiaries regarding the Company and its Subsidiaries as may be reasonably requested by Parent’s actual and potential Debt Financing Sources and is customarily provided in connection with financings of the type contemplated by any Debt Financing, (iii) assisting in reasonably assist with the preparation of schedules to collateral agreements by providing (as applicable) customary bank books, “road show presentations”, information memoranda, prospectuses, pricing term sheets, offering or private placement memoranda, and other marketing materials or customary information packages (A) suitable for use in a customary syndication process or “road show”, in each case, regarding the business, operations, financial condition and projections of the Company Entities required (which prospectuses, offering or private placement memoranda or other customary information for use in a “road show” will be in a form that will enable the independent registered public accountants of Company to be made available render a customary “comfort letter” (including customary “negative assurances”) on such schedules for purposes the Closing Date) or (B) reasonably requested by Parent or its financing sources in connection with the syndication or other marketing of the arrangement or consummation Debt Financing (subject to advance review of the Financingand consultation with respect to such use), (iv) subject reasonably assist with the preparation of any pledge and security documents, any loan agreement, currency or interest hedging agreement, other definitive financing documents for any Debt Financing, including information in respect of the oil and gas reserves attributable to the Oil and Gas Properties of the Company and its Subsidiaries and schedules to the definitive documentation for any contractual agreement in effectDebt Financing, facilitating or other certificates, legal opinions delivered by counsel to Parent or documents as may be reasonably requested by Parent and usual and customary for transactions of the type contemplated by such Debt Financing, (v) reasonably facilitate the pledging of collateral for any Debt Financing (including cooperation in connection with the Financing, which shall not be required pay-off of existing Indebtedness to be delivered the extent contemplated by this Agreement or effective until at or promptly following the Effective Time, (v) subject to any contractual agreement in effect, obtaining the Payoff Letter, Debt Financing and the release of related lien releases, Encumbrances and instruments termination of security interests (including delivering prepayment or termination or discharge, notices as applicable, required pursuant to Section 6.12, in each case which shall provide that, if sufficient funds are received by the financing sources under the Credit Agreement in order to pay off in full all obligations (other than the Excluded Obligationsterms of any existing Indebtedness and delivering customary payoff letters)) in connection therewith or secured thereby, such release, termination and/or discharge shall be effective, and (vi) furnishing provide to Parent as promptly as reasonably practical (and its Debt Financing Sources at least three (3) business days Business Days prior to the Closing Date) with Date all documentation and other information related to the Company and its Subsidiary required by regulatory authorities Governmental Entities under applicable “know your customer” and anti-money laundering rules and regulations, including regulations to the PATRIOT Act, that has been extent reasonably requested in writing by Parent or its Financing Sources at least ten (10) business days Business Days prior to the Closing DateClosing. The Company hereby consents Parent shall be permitted to the use disclose confidential information to any parties providing commitments for any Debt Financing, rating agencies and prospective lenders during syndication of its such Debt Financing, subject to such parties providing commitments, rating agencies and its Subsidiary’s logos in connection prospective lenders entering into customary confidentiality undertakings for a syndication with the Financing so long as respect to such logos are used solely (i) in a manner that is not intended to or that is not reasonably likely to harm or disparage the Company or its Subsidiary or the reputation or goodwill of the Company or its Subsidiary and (ii) solely in connection with a description of the Company, its business and products or the Mergerinformation.
(bc) Notwithstanding the requirements of Section 6.16(a) or anything in this Agreement to the contrary, nothing herein shall require (i) neither the Company nor Company, its Subsidiaries or any of its Affiliates or their respective Representatives shall be required to execute or enter into, approve or perform (or commit to enter into, approve or perform) into any certificate, document, agreement, or instrument, agreement or other document in each case connection with any Debt Financing which will be effective prior to the Effective TimeClosing, (ii) nothing herein shall require cooperation contemplated thereby or other actions or efforts on the part of the Company, any of its Subsidiaries, or any of their respective Representatives, in connection with any Debt Financing to the extent extent, in the Company’s reasonable judgment, it would (A) interfere unreasonably with the business or operations of the Company or its Subsidiaries, (B) subject any director, manager, officer or employee of its Affiliates the Company or their respective Affiliatesa Subsidiary thereof to any actual or potential personal liability or (C) result in a failure of any condition to the obligations of the parties hereto to consummate the Transactions, (iii) none of the Company nor any of its Affiliates or their respective Representatives, will be required to (1) pay or commit to pay any commitment or other fee, (2) reimburse or incur any costs or expenses or incur any other liability (including any guarantee, indemnity or pledge) in connection with the Financing or the Marketing Documents prior to the Effective Time, (3) provide any financial data other than the Required Information, or (4) provide any legal opinion or reliance letters or any certificate (in the case of the Company or its Subsidiary that would be required to be delivered prior to the Effective Time), comfort letter or opinion of any of its Representatives, (iv) nothing herein will involve any binding commitment by the Company, any of its Affiliates or any of their respective Representatives which commitment is not conditioned on the Effective Time and does not terminate without liability to the Company, its Affiliates and their respective Representatives upon the termination of this Agreement, and (v) nothing herein will require the Company, any of its Affiliates Subsidiaries or any of their respective Representatives to pay any commitment or other fee or incur any other liability in connection with any Debt Financing that is not reimbursed by Parent, (iv) the board of directors or similar governing body of any of the Company or its Subsidiaries, prior to the Closing, to adopt resolutions approving, or otherwise approve, the agreements, documents or instruments pursuant to which any Debt Financing is made, (v) the Company and its Subsidiaries to provide any access or information or take any action, the disclosure or taking of which if (A) doing so would reasonably be expected to violate applicable Legal Requirements, any fiduciary duty, any applicable Law or existing Contract to which the Company or obligation of confidentiality owing to a third such Subsidiary is party, (B) doing so would reasonably be expected to result in the loss of the ability to successfully assert attorney-client, work product or similar privileges or (C) doing so would reasonably be expected to violate any Company policies regarding access to such books, Contracts and records or jeopardize the protection health and safety of the attorney-client privilege (any employee, independent contract or similar protections) held by other agent of the Company or any of its AffiliatesSubsidiaries; provided thatprovided, if the Company does not provide or cause its Representatives to provide such access or such information in reliance on the foregoing, then the Company shall (1) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1) any Representative of the Company or its Subsidiary to deliver any certificate or opinion or take any other action under this Section 6.16 that could reasonably be expected to result in personal liability to such Representative; (2) the Board of Directors (or any committee or subcommittee thereof) or the board of directors, managers, managing member or any similar controlling body of any Subsidiary of the Company to approve (or otherwise take any corporate or similar action with respect to) any financing (including the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) the Company and its Subsidiary Subsidiaries shall, in the case of clauses (A) through (C), use commercially reasonable efforts to take any action make appropriate substitute arrangements under circumstances in which the foregoing restrictions do not apply, (vi) cooperation that would conflict with or violate its organizational or governance documents or any applicable Legal Requirementsviolate, or result in the contravention ofwaiver of any benefit under this Agreement, any other material Contract (not entered in contemplation hereof) or any Law to which Company, any of its Subsidiaries, or that could reasonably be expected to result in any of their respective Representatives, is a violation of breach of, party or default under, any agreement to which subject or (vii) the Company or its Subsidiary is a party.
(c) Subject to any applicable Legal Requirements, all non-public or other confidential information provided by the Company, its Subsidiary Subsidiaries or any of their respective Representatives pursuant to this Agreement will prepare or provide (and Parent shall be kept confidential solely responsible for) (A) pro forma financial information, including pro forma cost savings, synergies, capitalization or other pro forma adjustments in accordance with the Confidentiality Agreement, except that Parent and Purchaser will be permitted to disclose such information to any Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties each case giving effect to the Financing and transactions desired to be incorporated into any underwriters, initial purchasers or placement agents pro forma financial information in connection with the Financing any Debt Financing, (andB) any description of all or any component of any Debt Financing, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; or (iiC) are subject projections or other forward-looking statements relating to other confidentiality undertakings reasonably satisfactory all or any component of any debt financing. Parent shall be responsible for all fees and expenses related to any Debt Financing, including the compensation of any contractor or advisor of Parent or the Company directly related to actions taken pursuant to Section 6.14(a) or Section 6.14(b). Accordingly, notwithstanding anything to the Company and of which the Company is a beneficiary.
(d) If the Closing does not occurcontrary herein, promptly Parent shall promptly, upon written request by the Company, Parent will reimburse the Company for any all reasonable and documented and reasonable out-of-pocket costs and expenses (including attorneys’ feesreasonable and documented compensation or other fees of any contractor or advisor) incurred in connection with the Debt Financing incurred by the Company or and its Subsidiary Subsidiaries and their respective Representatives in connection with the Debt Financing, including the cooperation of the Company and its Subsidiary the Subsidiaries thereof contemplated by this Section 6.16 (it being understood and agreed that the reimbursement set forth in this Section 6.16(d) shall not apply to any fees, costs6.14, and expenses incurred by, or on behalf of, the Company, its Subsidiary or any of its Representatives in connection with its ordinary course financial reporting requirements or in the provision of data that, in each case, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding this Section 6.16).
(e) The Parent shall indemnify, defend indemnify and hold harmless the Company Entities and its Subsidiaries and their respective Representatives from and against any and all losses, claims, damages, claims, interest, awardsliabilities, judgments, penaltiesobligations, causes of action, payments, charges, fines, assessments and costs and expenses (including reasonable attorneys’ fees, legal and other expenses incurred in connection therewith) suffered or incurred by any of them in connection with the Financing (including any action taken in accordance with this Section 6.16) and costs and expenses incurred 6.14, the arrangement of the Debt Financing or any information used in defending against the foregoingconnection therewith, in each case, except to the extent such lossessuffered or incurred as a result of the gross negligence, damages, claims, costs bad faith or expenses arise from the willful breach of this Agreement misconduct by the Company or any of its Subsidiaries or, in each case, their respective Representatives.
(d) Notwithstanding anything to the contrary herein, the condition set forth in Section 7.2(b) as it applies to the Company’s obligations under this Section 6.14, shall be deemed satisfied unless (i) the Company has failed to satisfy its obligations under Section 6.14 in any material respect, (ii) Parent has notified the Company of such failure in writing a reasonably sufficient amount of time prior to the Closing Date to afford the Company with a reasonable opportunity to cure such failure and (iii) such failure has been the primary cause of Parent’s failure to consummate any Debt Financing. Parent acknowledges and agrees that obtaining any Debt Financing is not a condition to Closing. If any Debt Financing has not been obtained, Parent shall continue to be obligated, until such time as finally determined by a court of competent jurisdiction, the Agreement is terminated in accordance with Article VIII and subject to the waiver or from fraud on the part fulfillment of the Companyconditions set forth in Article VII, to complete the transactions contemplated by this Agreement.
Appears in 1 contract
Financing Cooperation. (a) Subject Prior to Section 6.16(b), prior to Closing or termination of this Agreementthe Closing, the Company shallwill, and shall the Company will cause each of its Subsidiaries and their respective Representatives to, use reasonable best efforts to cause its and their respective Company Representatives to, use their respective reasonable best efforts to provide such customary cooperation as is reasonably cooperate with and reasonably assist Parent, at the Parent’s request, sole cost and expense, in connection with arranging, obtaining and syndicating any Financing and causing the conditions requested by Parent in the Financing Documents arrangement and any commitment letters entered into in connection with such Financing to be satisfiedconsummation of the Debt Financing, including using reasonable best efforts in to (i) assisting withparticipate in a reasonable number of requested meetings, due diligence sessions and furnishing information for the purposes ofsessions with rating agencies, at reasonable times and locations mutually agreed and upon reasonable notice, (ii) assist with the preparation of customary prospectuses (including any pro forma financial information and any information required under Article 18(2) of Commission Delegated Regulation (EU) 2019/980)rating agency presentations, offering documents, syndication documents and materials, including bank information memoranda and private placement memoranda, lender and investor presentations, rating agency materials bank information memoranda, prospectuses and presentations and other customary marketing materials offering memoranda in connection with the Financing (all such documents and materials, collectively, the “Marketing Documents”) (it being understood and agreed that the Marketing Documents shall include (or otherwise be subject to) any customary exculpation language, as the case may be, with respect to the Company, its Affiliates and their respective Representatives), (ii) furnishing to the Parent as promptly as reasonably practicable financial statements and operational information (including consolidated financial statements for interim periods up until the Closing Date) that can be prepared without undue burden with respect to the Company and its Subsidiary as is reasonably requested by Parent (the “Required Information”)Debt Financing, (iii) assisting in provide customary authorization letters to the preparation of schedules to collateral agreements by providing information of the Company Entities required to be made available on such schedules for purposes of the arrangement or consummation of the FinancingDebt Financing Sources, (iv) subject to any contractual agreement in effect, facilitating the pledging of collateral for the Financing, which shall not be required to be delivered or effective until at or promptly following the Effective Time, (v) subject to any contractual agreement in effect, obtaining the Payoff Letter, and the related lien releases, and instruments of termination or discharge, as applicable, required pursuant to Section 6.12, in each case which shall provide that, if sufficient funds are received by the financing sources under the Credit Agreement in order to pay off in full all obligations (other than the Excluded Obligations) in connection therewith or secured thereby, such release, termination and/or discharge shall be effective, and (vi) furnishing Parent as promptly as reasonably practical (and at least three (3) business days prior to the Closing Date) with all documentation and other information related to the Company and its Subsidiary required by regulatory authorities under in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act, that has been (v) provide the Company Information as may be reasonably requested in writing by Parent and such other information that is reasonably available or its Financing Sources at least ten (10) business days prior to readily obtainable regarding the Closing Date. The Company hereby consents to the use of its and its Subsidiary’s logos Subsidiaries that is reasonably requested by Parent and is reasonably necessary to assist Parent in preparing pro forma financial statements required by Regulation S-X under the Securities Act for registered offerings of securities in connection with the Debt Financing, (vi) cause its independent accountants to provide assistance and cooperation with any offering of securities, including (x) providing any necessary written consents to use their audit reports relating to the Company and its Subsidiaries and to be named as an “Expert” in any document related to any Debt Financing so long as and (y) providing any customary “comfort” letters (including customary “negative assurance” comfort); and (vii) cooperate with the Debt Financing Sources’ due diligence, to the extent customary or reasonable); provided, however, that (x) nothing herein will require such logos are used solely cooperation to the extent it would (iA) in a manner that is not intended to or that is not reasonably likely to harm or disparage unreasonably disrupt the conduct of the Company’s and the Subsidiaries’ respective businesses, (B) require the Company or its Subsidiary any of the Subsidiaries or the reputation or goodwill any of the Company Representatives to pay any fees or its expenses or otherwise incur any liability or give any indemnities prior to the Effective Time (except to the extent any such fee or expense is conditioned on the consummation of the Merger or Parent has advanced the amount of such fees, expenses or liabilities to the Company or the Subsidiaries), or (C) reasonably be expected to conflict with, result in any violation or breach of, or default (with or without lapse of time, or both) under, the Company Organizational Documents or the organizational documents of any Subsidiary and (ii) solely in connection with a description of the Company, its business and products or the Merger.
(b) Notwithstanding the requirements of Section 6.16(a) any applicable Law or anything in this Agreement to the contraryMaterial Contract, (iy) any documentation executed by the Company or any of its Subsidiaries will not become effective until the consummation of the Closing and (z) neither the Company nor any of its Affiliates or their respective Representatives shall be required to enter into, approve or perform (or commit to enter into, approve or perform) any certificate, document, agreement, or instrument, in each case which will be effective prior to the Effective Time, (ii) nothing herein shall require cooperation contemplated thereby to the extent it would interfere unreasonably with the business or operations of the Company or any of its Affiliates or their respective Affiliates, (iii) none of the Company nor any of its Affiliates or their respective Representatives, Subsidiaries will be required to pass resolutions or consents or approve or authorize the execution of the Debt Financing or the definitive financing arrangements prior to the Closing, except to the extent the effectiveness of such authorization or the effectiveness of such arrangement is conditioned upon the Closing.
(1b) pay Parent will indemnify and hold harmless each of the Company, the Subsidiaries of the Company and their respective Company Representatives from and against any and all losses suffered or commit to pay any commitment or other fee, (2) reimburse or incur any costs or expenses or incur any other liability (including any guarantee, indemnity or pledge) incurred by them in connection with the Financing or the Marketing Documents prior to the Effective Time, (3) provide any financial data other than the Required Information, or (4) provide any legal opinion or reliance letters or any certificate (in the case arrangement of the Company or its Subsidiary that would be required to be delivered prior to Debt Financing and the Effective Time)performance of their respective obligations under this Section 6.13. Parent will, comfort letter or opinion promptly upon request of any of its Representatives, (iv) nothing herein will involve any binding commitment by the Company, any of its Affiliates or any of their respective Representatives which commitment is not conditioned on the Effective Time and does not terminate without liability to the Company, its Affiliates and their respective Representatives upon the termination of this Agreement, and (v) nothing herein will require the Company, any of its Affiliates or any of their respective Representatives to provide any information or take any action, the disclosure or taking of which would violate applicable Legal Requirements, any fiduciary duty, any Contract or obligation of confidentiality owing to a third party, or jeopardize the protection of the attorney-client privilege (or similar protections) held by the Company or any of its Affiliates; provided that, if the Company does not provide or cause its Representatives to provide such access or such information in reliance on the foregoing, then the Company shall (1) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1) any Representative of the Company or its Subsidiary to deliver any certificate or opinion or take any other action under this Section 6.16 that could reasonably be expected to result in personal liability to such Representative; (2) the Board of Directors (or any committee or subcommittee thereof) or the board of directors, managers, managing member or any similar controlling body of any Subsidiary of the Company to approve (or otherwise take any corporate or similar action with respect to) any financing (including the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) reimburse the Company and its Subsidiary to take any action that would conflict with or violate its organizational or governance documents or any applicable Legal Requirements, or result in the contravention of, or that could reasonably be expected to result in a violation of breach of, or default under, any agreement to which the Company or its Subsidiary is a party.
(c) Subject to any applicable Legal Requirements, Subsidiaries for all non-public or other confidential information provided by the Company, its Subsidiary or any of their respective Representatives pursuant to this Agreement will be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Purchaser will be permitted to disclose such information to any Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties to the Financing and to any underwriters, initial purchasers or placement agents in connection with the Financing (and, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; or (ii) are subject to other confidentiality undertakings reasonably satisfactory to the Company and of which the Company is a beneficiary.
(d) If the Closing does not occur, promptly upon request by the Company, Parent will reimburse the Company for any documented and reasonable out-of-pocket costs and expenses (including attorneys’ fees) incurred by the Company or its Subsidiary Subsidiaries (including those of their respective Company Representatives) in connection with the cooperation of the Company and its Subsidiary contemplated required by this Section 6.16 (it being understood and agreed that the reimbursement set forth in this Section 6.16(d) shall not apply to any fees, costs, and expenses incurred by, or on behalf of, the Company, its Subsidiary or any of its Representatives in connection with its ordinary course financial reporting requirements or in the provision of data that, in each case, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding this Section 6.16)6.13.
(ec) The Each of Parent shall indemnifyand Merger Sub acknowledges and agrees that (i) the obtaining of the Debt Financing is not a condition to the Closing, defend (ii) that none of Parent’s or Merger Sub’s respective obligations hereunder are conditioned in any manner upon Parent or Merger Sub obtaining financing in respect of the transactions contemplated hereby and hold harmless (iii) for purposes of this Agreement, the Company Entities and their respective Representatives from and against any and all losses, damages, claims, interest, awards, judgments, penalties, costs and expenses suffered or incurred by any of them in connection will be deemed to comply with the Financing (including any action taken in accordance with this Section 6.166.13(a) and costs and expenses incurred in defending against the foregoing, except to the extent that the Company willfully and materially breaches such losses, damages, claims, costs or expenses arise from the willful breach of this Agreement by the Company, as finally determined by a court of competent jurisdiction, or from fraud on the part of the Companyprovision.
Appears in 1 contract
Financing Cooperation. (a) Subject to Section 6.16(b), On and prior to Closing or termination of this Agreementthe Closing, the Selling Parties and the Company shallshall use commercially reasonable efforts to provide, and the Company shall cause its Subsidiaries and their respective Representatives to, use commercially reasonable best efforts to reasonably cooperate with cause Sellers’ Representatives to provide, in each case in a timely manner, reasonable cooperation and reasonably assist Parent, at the Parent’s request, sole cost and expense, assistance to Buyer in connection with arranging, obtaining and syndicating any Financing and causing the conditions in the Financing Documents and any commitment letters entered into in connection with such Financing to be satisfied, including using reasonable best efforts in (i) assisting withthe arrangement of the Financing and (ii) Buyer’s ability to comply with regulatory reporting requirements, in each case including, as reasonably requested, (A) furnishing Buyer and furnishing information for the purposes of, the preparation of customary prospectuses (including any pro forma its Financing Sources with all financial information and any information required under Article 18(2) of Commission Delegated Regulation (EU) 2019/980), offering documents, syndication documents and materials, including bank information memoranda and private placement memoranda, lender and investor presentations, rating agency materials and presentations and other customary marketing materials information concerning the Company reasonably required by such Financing Sources in connection with the Financing Financing; (all such documents and materials, collectively, the “Marketing Documents”) (it being understood and agreed that the Marketing Documents shall include (or otherwise be subject to) any customary exculpation language, as the case may be, with respect to the Company, its Affiliates and their respective Representatives), (ii) furnishing to the Parent as promptly as reasonably practicable financial statements and operational information (including consolidated financial statements for interim periods up until the Closing Date) that can be prepared without undue burden with respect to the Company and its Subsidiary as is reasonably requested by Parent (the “Required Information”), (iiiB) assisting in the preparation of schedules customary confidential information memoranda and other customary materials to collateral agreements by providing information be used in connection with the Financing; (C) ensuring that the syndication efforts with respect to the Financing benefit materially from existing banking and lending relations of the Company Entities required to be made available on such schedules for purposes and its Affiliates; (D) making senior management of the arrangement Company available to participate in a reasonable number of due diligence meetings, bank meetings, drafting sessions and similar presentations to and with prospective lenders; (E) providing such certificates, documents and financial reports as may be reasonably requested by Buyer and its Financing Sources, including such financial reports as are required by the SEC or consummation other regulatory bodies prior to the Closing; (F) assisting with the preparation of definitive financing documentation and the Financingschedules and exhibits thereto, (iv) subject to any contractual agreement in effecteach case, facilitating the pledging of collateral for the Financing, which shall not be customarily required to be delivered under such definitive financing documentation; (G) providing all cooperation that is reasonable and customary to satisfy the conditions precedent set forth in any commitment letter or effective until at or promptly following the Effective Time, (v) subject to any contractual agreement in effect, obtaining the Payoff Letter, and the related lien releases, and instruments of termination or discharge, as applicable, required pursuant to Section 6.12, in each case which shall provide that, if sufficient funds are received by the financing sources under the Credit Agreement in order to pay off in full all obligations (other than the Excluded Obligations) in connection therewith or secured thereby, such release, termination and/or discharge shall be effective, and (vi) furnishing Parent as promptly as reasonably practical (and at least three (3) business days prior definitive document relating to the Closing DateFinancing to the extent the satisfaction of such condition requires the reasonable and customary cooperation of, or is within the control of, Seller or the Company; (H) with following reasonable advance notice, providing to Buyer and its Financing Sources all documentation and other information related to about the Company and its Subsidiary required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, that has been ; (I) assisting Buyer in Buyer’s preparation of pro forma financial information and pro forma financial statements in connection with any Financing for the periods for which the Company is obligated to deliver financial statements hereunder by providing Buyer with sufficient and customary information with respect to the Company for Buyer to prepare such pro forma financial information and pro forma financial statements; and (J) providing such additional cooperation as may be reasonably requested in writing by Parent or its Financing Sources at least ten (10) business days prior to the Closing Date. The Company hereby consents to the use of its and its Subsidiary’s logos Buyer in connection with the Financing so long as such logos are used solely (i) in a manner Financing; provided, that is not intended to or that is not reasonably likely to harm or disparage the Company or its Subsidiary or the reputation or goodwill of the Company or its Subsidiary and (ii) solely in connection with a description of the Company, its business and products or the Merger.
(b) Notwithstanding the requirements of Section 6.16(a) or anything in this Agreement to the contrary, (i) neither the Company nor any of its Affiliates or their respective Representatives shall be required to enter into, approve or perform (or commit to enter into, approve or perform) any certificate, document, agreement, or instrument, in each case which will be effective prior to the Effective Time, (ii) nothing herein shall require (w) such cooperation contemplated thereby to the extent it would interfere unreasonably with the business or operations of the Company or any of its Affiliates or their respective Affiliates, Subsidiaries; (iiix) none of the Company nor to prepare or deliver any of its Affiliates or their respective Representatives, will be required to financial statements other than those (1) pay previously provided to Buyer or commit to pay any commitment or other fee, (2) reimburse or incur any costs or expenses or incur any other liability (including any guarantee, indemnity or pledge) in connection with the Financing or the Marketing Documents prior to the Effective Time, (3) provide any financial data other than the Required Information, or (4) provide any legal opinion or reliance letters or any certificate (in the case of the Company or its Subsidiary that would be required to be delivered prior to Buyer pursuant to Section 7.05; (y) the Effective Time), comfort letter Company to prepare or opinion of deliver any of its Representatives, (iv) nothing herein will involve any binding commitment by the Company, any of its Affiliates or any of their respective Representatives which commitment is other financial information in a form not conditioned on the Effective Time and does not terminate without liability to the Company, its Affiliates and their respective Representatives upon the termination of this Agreement, and (v) nothing herein will require the Company, any of its Affiliates or any of their respective Representatives to provide any information or take any action, the disclosure or taking of which would violate applicable Legal Requirements, any fiduciary duty, any Contract or obligation of confidentiality owing to a third party, or jeopardize the protection of the attorney-client privilege (or similar protections) held customarily prepared by the Company or any financial information with respect to a month or fiscal period that has not yet ended or has ended less than forty-five (45) calendar days prior to the date of its Affiliatessuch request; provided that, if the Company does not provide or cause its Representatives to provide such access or such information in reliance on the foregoing, then the Company shall (1z) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1) any Representative of the Company or its Subsidiary to deliver any certificate or opinion or take any other action under this Section 6.16 that could reasonably be expected to result in personal liability to such Representative; (2) the Board of Directors (or any committee or subcommittee thereof) or the board of directors, managers, managing member or any similar controlling body of any Subsidiary of the Company to approve (deliver or otherwise take cause the delivery of any corporate legal opinions or similar action with respect to) any financing (including certificate as to solvency. Notwithstanding anything in this Agreement to the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) contrary, in no event shall the Company and its Subsidiary be required to take bear any action that would conflict with or violate its organizational or governance documents or any applicable Legal Requirements, or result in the contravention of, or that could reasonably be expected to result in a violation of breach of, or default under, any agreement to which the Company or its Subsidiary is a party.
(c) Subject to any applicable Legal Requirements, all non-public or other confidential information provided by the Company, its Subsidiary or any of their respective Representatives pursuant to this Agreement will be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Purchaser will be permitted to disclose such information to any Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties to the Financing and to any underwriters, initial purchasers or placement agents in connection with the Financing (and, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; or (ii) are subject to other confidentiality undertakings reasonably satisfactory to the Company and of which the Company is a beneficiary.
(d) If the Closing does not occur, promptly upon request by the Company, Parent will reimburse the Company for any documented and reasonable out-of-pocket costs and expenses (including attorneys’ fees) incurred by cost or expense, pay any fee or incur any Liability prior to the Company Closing or its Subsidiary make any commitment or Contract effective prior to Closing in connection with the cooperation of Financing.
(b) Buyer shall reimburse promptly as incurred the Selling Parties and the Company for their respective reasonable and its Subsidiary contemplated by this Section 6.16 (it being understood and agreed that documented out-of-pocket expenses incurred in performing the reimbursement set forth covenants contained in this Section 6.16(d) 8.01. Buyer shall not apply to any fees, costs, indemnify and expenses incurred by, or on behalf ofhold harmless the Selling Parties, the Company, its Subsidiary or any of its Representatives in connection with its ordinary course financial reporting requirements or in the provision of data that, in each case, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding this Section 6.16).
(e) The Parent shall indemnify, defend and hold harmless the Company Entities and their respective Representatives and Affiliates from and against any and all losses, damages, claims, interest, awards, judgments, penalties, costs and or expenses suffered or incurred by any of them in connection with the any Financing (including and any action taken information utilized in accordance with this Section 6.16) and costs and expenses incurred in defending against the foregoing, except connection therewith other than to the extent such losses, damages, claims, costs or expenses arise any of the foregoing arises from the gross negligence or willful misconduct of, or breach of this Agreement by by, the Selling Parties, the Company, or any of their respective Representatives and Affiliates. Notwithstanding anything to the contrary herein, it is understood and agreed by the Buyer that the conditions set forth in Section 6.01(c), as finally determined by a court of competent jurisdictionapplied to the Company’s obligations under this Section 8.01, or from fraud on the part shall be deemed to be satisfied unless there has occurred an intentional and material breach of the Companyobligations of the Selling Parties or the Company under this Section 8.01.
(c) The Company hereby consents to the use of its and its Subsidiaries’ logos in connection with the Financing; provided, that such logos are used solely in a manner that is reasonable and customary and that is not reasonably likely to harm or disparage the Company or its Subsidiaries in any respect.
Appears in 1 contract
Financing Cooperation. (a) Subject Prior to Section 6.16(b), prior to Closing or termination of this Agreementthe Closing, the Company shallshall provide, and shall use its commercially reasonable efforts to cause its Subsidiaries officers, employees, representatives and their respective Representatives to, use reasonable best efforts to reasonably cooperate with and reasonably assist Parent, at the Parent’s request, sole cost and expense, in connection with arranging, obtaining and syndicating any Financing and causing the conditions in the Financing Documents and any commitment letters entered into in connection with such Financing to be satisfiedadvisors, including using legal and accounting advisors, to provide, all reasonable best efforts in (i) assisting with, and furnishing information for the purposes of, the preparation of customary prospectuses (including any pro forma financial information and any information required under Article 18(2) of Commission Delegated Regulation (EU) 2019/980), offering documents, syndication documents and materials, including bank information memoranda and private placement memoranda, lender and investor presentations, rating agency materials and presentations and other customary marketing materials cooperation in connection with the Financing arrangement of the debt financing described in the commitment letter, dated as of November 9, 2011 (all such documents and materials, collectively, the “Marketing DocumentsCommitment Letter”) ), among the Buyer and the Financing Sources, pursuant to which the Financing Sources have committed to provide the commitments set forth therein for purposes of financing the Transactions contemplated by this Agreement and related fees and expenses (it being understood and agreed that the Marketing Documents shall include (or otherwise be subject to) any customary exculpation language“Debt Financing”), as may be reasonably requested by the case may beBuyer and the Financing Sources and that is customary in connection with the Buyer’s efforts to obtain the Debt Financing, with respect to the Companyincluding (i) participation in meetings, its Affiliates drafting sessions, rating agency presentations and their respective Representatives), due diligence sessions; (ii) furnishing to the Parent as promptly as reasonably practicable financial statements Buyer and operational the Financing Sources with pertinent information (including consolidated financial statements for interim periods up until regarding the Closing Date) that can be prepared without undue burden with respect to Company, the Company Canadian Subsidiary and its Subsidiary their businesses as is reasonably requested by Parent (customary in connection with the “Required Information”), Debt Financing and any security required therefor; (iii) assisting the Buyer and the Financing Sources in the preparation of schedules to collateral agreements by providing (A) a customary offering document, private placement memorandum and/or bank information memorandum for any of the Company Entities required to be made available on such schedules Debt Financing; and (B) materials for purposes of the arrangement or consummation of the Financing, rating agency presentations; (iv) subject furnishing the Buyer with the Required Information (as defined in the Commitment Letter) and, to any contractual agreement in effect, facilitating the pledging of collateral for extent reasonably available to the Financing, which shall not be required to be delivered or effective until at or promptly following the Effective Time, (v) subject to any contractual agreement in effect, obtaining the Payoff Letter, Sellers and the related lien releasesCompany, and instruments of termination or discharge, as applicable, required pursuant to Section 6.12, in each case which shall provide that, if sufficient funds are received by the financing sources under the Credit Agreement in order to pay off in full all obligations (other than the Excluded Obligations) in connection therewith or secured thereby, such release, termination and/or discharge shall be effective, and (vi) furnishing Parent as promptly as reasonably practical (and at least three (3) business days prior to the Closing Date) with all documentation and other information related to the Company and its Subsidiary required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, that has been reasonably requested in writing by Parent or its Financing Sources at least ten (10) business days prior to the Closing Date. The Company hereby consents to the use of its and its Subsidiary’s logos in connection with the Financing so long as such logos are used solely (i) in a manner that is not intended to or that is not reasonably likely to harm or disparage the Company or its Subsidiary or the reputation or goodwill of the Company or its Subsidiary and (ii) solely in connection with a description of the Company, its business the Canadian Subsidiary and products or the Merger.
(b) Notwithstanding the requirements of Section 6.16(a) or anything in this Agreement to the contrary, (i) neither the Company nor any of its Affiliates or their respective Representatives shall be required to enter into, approve or perform (or commit to enter into, approve or perform) any certificate, document, agreement, or instrument, in each case which will be effective prior to the Effective Time, (ii) nothing herein shall require cooperation contemplated thereby to the extent it would interfere unreasonably with the business or operations of the Company or any of its Affiliates or their respective Affiliates, (iii) none of the Company nor any of its Affiliates or their respective Representatives, will be required to (1) pay or commit to pay any commitment or other fee, (2) reimburse or incur any costs or expenses or incur any other liability (including any guarantee, indemnity or pledge) in connection with the Financing or the Marketing Documents prior to the Effective Time, (3) provide any financial data other than the Required Information, or (4) provide any legal opinion or reliance letters or any certificate (in the case of the Company or its Subsidiary that would be required to be delivered prior to the Effective Time), comfort letter or opinion of any of its Representatives, (iv) nothing herein will involve any binding commitment businesses reasonably requested by the Company, any of its Affiliates or any of their respective Representatives which commitment is not conditioned on the Effective Time and does not terminate without liability to the Company, its Affiliates and their respective Representatives upon the termination of this Agreement, Buyer; and (v) nothing herein will require using all commercially reasonable efforts to assist the CompanyBuyer to obtain waivers, any of its Affiliates consents, estoppels, certificates and approvals necessary or any of their respective Representatives to provide any information or take any action, customary for the disclosure or taking of which would violate applicable Legal Requirements, any fiduciary duty, any Contract or obligation of confidentiality owing to a third party, or jeopardize the protection consummation of the attorney-client privilege (or similar protections) held by the Company or any of its Affiliates; provided that, if the Company does not provide or cause its Representatives to provide such access or such information in reliance on the foregoing, then the Company shall (1) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1) any Representative of the Company or its Subsidiary to deliver any certificate or opinion or take any other action under this Section 6.16 that could reasonably be expected to result in personal liability to such Representative; (2) the Board of Directors (or any committee or subcommittee thereof) or the board of directors, managers, managing member or any similar controlling body of any Subsidiary of the Company to approve (or otherwise take any corporate or similar action with respect to) any financing (including the Debt Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) the Company and its Subsidiary to take any action that would conflict with or violate its organizational or governance documents or any applicable Legal Requirements, or result in the contravention of, or that could reasonably be expected to result in a violation of breach of, or default under, any agreement to which the Company or its Subsidiary is a party.
(c) Subject to any applicable Legal Requirements, all non-public or other confidential information provided by the Company, its Subsidiary or any of their respective Representatives pursuant to this Agreement will be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Purchaser will be permitted to disclose such information to any Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties to the Financing and to any underwriters, initial purchasers or placement agents in connection with the Financing (and, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; or (ii) are subject to other confidentiality undertakings reasonably satisfactory to the Company and of which the Company is a beneficiary.
(d) If the Closing does not occur, promptly upon request by the Company, Parent will reimburse the Company for any documented and reasonable out-of-pocket costs and expenses (including attorneys’ fees) incurred by the Company or its Subsidiary in connection with the cooperation of the Company and its Subsidiary contemplated by this Section 6.16 (it being understood and agreed that the reimbursement set forth in this Section 6.16(d) shall not apply to any fees, costs, and expenses incurred by, or on behalf of, the Company, its Subsidiary or any of its Representatives in connection with its ordinary course financial reporting requirements or in the provision of data that, in each case, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding this Section 6.16).
(e) The Parent shall indemnify, defend and hold harmless the Company Entities and their respective Representatives from and against any and all losses, damages, claims, interest, awards, judgments, penalties, costs and expenses suffered or incurred by any of them in connection with the Financing (including any action taken in accordance with this Section 6.16) and costs and expenses incurred in defending against the foregoing, except to the extent such losses, damages, claims, costs or expenses arise from the willful breach of this Agreement by the Company, as finally determined by a court of competent jurisdiction, or from fraud on the part of the Company.
Appears in 1 contract
Financing Cooperation. (a) Subject The Company agrees to Section 6.16(b), prior use commercially reasonable efforts to Closing or termination of this Agreement, provide such assistance (and to cause the Company shall, Subsidiaries’ and shall cause its Subsidiaries and their respective Representatives to, use reasonable best efforts to reasonably cooperate with and reasonably assist Parent, provide such assistance) at the ParentBuyer’s request, sole cost and expense, with any Financing Sources in connection with arranging, obtaining the Transactions as is reasonably requested by the Buyer and syndicating any Financing and causing the conditions in the Financing Documents and any commitment letters entered into in connection with such Financing to be satisfied, including using reasonable best efforts in the arrangement and consummation of the Equity Financing. Such assistance shall include the following: (i) as promptly as reasonably practicable, furnishing the Buyer and the Financing Sources with financial and other pertinent information that are in the possession or control of the Company or the Company Subsidiaries, regarding the Company and the Company Subsidiaries that are deemed necessary in the Buyer’s reasonable judgment, (ii) reasonably assisting with, and furnishing information for the purposes of, with the preparation of customary prospectuses (including any pro forma financial information and any information required under Article 18(2) of Commission Delegated Regulation (EU) 2019/980), offering documents, syndication documents and materials, including bank information memoranda and private placement memoranda, lender and investor presentations, rating agency materials presentations, and presentations similar documents and other customary marketing materials materials, in connection with the proposed financing and otherwise reasonably cooperating with the marketing efforts of the Buyer and the Financing (all Sources for any portion of such documents and materials, collectively, the “Marketing Documents”) (it being understood and agreed that the Marketing Documents shall include (or otherwise be subject to) any customary exculpation languagefinancing, as applicable, including providing the case may be, business description to be contained therein and providing and executing customary authorization letters with respect to the Company, its Affiliates and their respective Representatives), (ii) furnishing to the Parent as promptly as reasonably practicable financial statements and operational information (including consolidated financial statements for interim periods up until the Closing Date) that can be prepared without undue burden with respect to the Company and its Subsidiary as is reasonably requested by Parent (the “Required Information”)thereto, (iii) assisting participating in a reasonable number of meetings, drafting sessions, due diligence meetings and presentations with prospective lenders, and sessions with ratings agencies, in each case upon reasonable notice and at mutually agreeable dates and times in connection with the preparation of schedules to collateral agreements by providing information of the Company Entities required to be made available on such schedules for purposes of the arrangement or consummation of the Equity Financing, (iv) subject to any contractual agreement in effect, facilitating the pledging of collateral for the Financing, which shall not be required to be delivered or effective until at or promptly following the Effective Time, (v) subject to any contractual agreement in effect, obtaining the Payoff Letter, and the related lien releases, and instruments of termination or discharge, as applicable, required pursuant to Section 6.12, in each case which shall provide that, if sufficient funds are received by the financing sources under the Credit Agreement in order to pay off in full all obligations (other than the Excluded Obligations) in connection therewith or secured thereby, such release, termination and/or discharge shall be effective, and (vi) furnishing Parent as promptly as reasonably practical (and at least three (3) business days prior delivering to the Closing Date) with Buyer, within the time period specified in any debt commitment letter, all documentation and other information related relating to the Company and its Subsidiary the Company Subsidiaries required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, that has been reasonably requested in writing by Parent or its Financing Sources at least ten (10) business days prior to the extent such documentation and other information is deemed necessary by any Financing Source, (v) cooperating with the Financing Sources’ reasonable due diligence investigation and evaluation of the assets and properties of the Company and the Company Subsidiaries for the purpose of establishing collateral arrangements and otherwise reasonably facilitating the pledging of collateral (it being understood that no such pledging of collateral will be effective until at or after the Closing) (including obtaining for delivery at or immediately following the Closing Datethe certificates representing equity interests constituting collateral) and (vi) executing and delivering as of (but not before) the Closing definitive debt financing documents (which will not be effective before the Closing), including credit agreements, intercreditor agreements, guarantee agreements, pledge and security documents (including intellectual property filings with respect to intellectual property constituting collateral), corporate authorizations, secretary’s certificates (attaching such corporate authorizations, organizational documents and evidence of incumbency) or other certificates or documents, to the extent deemed necessary by the Buyer and otherwise using commercially reasonable efforts to facilitate the granting or perfection of collateral to secure any portion of the financings contemplated by the any debt commitment letters (or any permitted replacement thereof). The Company hereby consents will consent to the use of all of its and its Subsidiarythe Company’s Subsidiaries’ logos in connection with the Financing so long as Sources; provided, that such logos are used solely (i) in a manner that is not intended to or that is not reasonably likely to harm or disparage the Company or its Subsidiary the Company Subsidiaries or the reputation or goodwill of the Company or its Subsidiary and (ii) solely in connection with a description any of the Company, its business and products or the MergerCompany Subsidiaries.
(b) Notwithstanding the requirements of Section 6.16(a) or anything in this Agreement to the contrary, (i) neither the Company nor this Section 7.7 shall not be deemed to obligate any of its Affiliates or their respective Representatives shall be required to enter intoSeller, approve or perform (or commit to enter into, approve or perform) any certificate, document, agreement, or instrument, in each case which will be effective prior to the Effective Time, (ii) nothing herein shall require cooperation contemplated thereby to the extent it would interfere unreasonably with the business or operations of the Company or any of its Affiliates or their respective Affiliates, (iii) none of the Company nor any of its Affiliates or their respective Representatives, will be required to (1) pay or commit to pay any commitment or other fee, (2) reimburse or incur any costs or expenses or incur any other liability (including any guarantee, indemnity or pledge) in connection with the Financing or the Marketing Documents prior to the Effective Time, (3) provide any financial data other than the Required Information, or (4) provide any legal opinion or reliance letters or any certificate (in the case of the Company or its Subsidiary that would be required to be delivered prior to the Effective Time), comfort letter or opinion of any of its Representatives, (iv) nothing herein will involve any binding commitment by the Company, any of its Affiliates the Company Subsidiaries or any of their respective Representatives which commitment Affiliates to (i) agree to Equity Financing that is not conditioned on upon the Effective Time Closing and that does not terminate without liability to the Sellers, the Company, its Affiliates and or the Company Subsidiaries or any of their respective Representatives Affiliates upon the termination of this Agreement, (ii) pay any commitment or other similar fee, or (iii) be required to incur any other Liability in connection with the Equity Financing unless reimbursed and indemnified in full by the Buyer to the satisfaction of the Sellers Representative.
(vc) nothing herein The Company’s and the Company Subsidiaries’ cooperation pursuant to this Section 7.7 shall be at the Buyer’s written request with reasonable prior notice. The Company will require consent to the use of all of its and the Company’s Subsidiaries’ logos in connection with the Financing Sources; provided, any that such logos are used solely in a manner that is not reasonably likely to harm or disparage the Company or the Company Subsidiaries or the reputation or goodwill of its Affiliates or any of their respective Representatives to provide any information or take any action, the disclosure or taking of which would violate applicable Legal Requirements, any fiduciary duty, any Contract or obligation of confidentiality owing to a third party, or jeopardize the protection of the attorney-client privilege (or similar protections) held by the Company or any of its Affiliates; provided that, if the Company does not provide or cause its Representatives to provide such access or such information in reliance on the foregoing, then Subsidiaries. The Buyer shall keep the Company shall (1) provide informed on a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information current basis in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1) any Representative reasonable detail of the Company or its Subsidiary to deliver any certificate or opinion or take any other action under this Section 6.16 that could reasonably be expected to result in personal liability to such Representative; (2) the Board of Directors (or any committee or subcommittee thereof) or the board of directors, managers, managing member or any similar controlling body of any Subsidiary of the Company to approve (or otherwise take any corporate or similar action with respect to) any financing (including the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) the Company and its Subsidiary to take any action that would conflict with or violate its organizational or governance documents or any applicable Legal Requirements, or result in the contravention of, or that could reasonably be expected to result in a violation of breach of, or default under, any agreement to which the Company or its Subsidiary is a party.
(c) Subject to any applicable Legal Requirements, all non-public or other confidential information provided by the Company, its Subsidiary or any of their respective Representatives pursuant to this Agreement will be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Purchaser will be permitted to disclose such information to any Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties to the Financing and to any underwriters, initial purchasers or placement agents in connection with the Financing (and, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; or (ii) are subject to other confidentiality undertakings reasonably satisfactory to the Company and of which the Company is a beneficiary.
(d) If the Closing does not occur, promptly upon request by the Company, Parent will reimburse the Company for any documented and reasonable out-of-pocket costs and expenses (including attorneys’ fees) incurred by the Company or its Subsidiary in connection with the cooperation of the Company and its Subsidiary contemplated by this Section 6.16 (it being understood and agreed that the reimbursement set forth in this Section 6.16(d) shall not apply to any fees, costs, and expenses incurred by, or on behalf of, the Company, its Subsidiary or any status of its Representatives in connection with its ordinary course financial reporting requirements or in efforts to arrange the provision of data that, in each case, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding this Section 6.16)Equity Financing.
(e) The Parent shall indemnify, defend and hold harmless the Company Entities and their respective Representatives from and against any and all losses, damages, claims, interest, awards, judgments, penalties, costs and expenses suffered or incurred by any of them in connection with the Financing (including any action taken in accordance with this Section 6.16) and costs and expenses incurred in defending against the foregoing, except to the extent such losses, damages, claims, costs or expenses arise from the willful breach of this Agreement by the Company, as finally determined by a court of competent jurisdiction, or from fraud on the part of the Company.
Appears in 1 contract
Samples: Transaction Agreement and Plan of Merger (Sentinel Energy Services Inc.)
Financing Cooperation. (a) Subject Prior to Section 6.16(b)the Closing Date, prior to Closing or termination of this Agreement, the Company shall, and FH shall cause FX and its Subsidiaries and their respective Representatives to provide such reasonable cooperation in connection with any financing by XC or any of its Subsidiaries in connection with the Transactions as may be reasonably requested by XC or its Representatives. Without limiting the generality of the foregoing, FH shall cause FX and its Subsidiaries and their respective Representatives to, upon request, (i) prepare and furnish all financial and other pertinent information regarding FX and its Subsidiaries reasonably requested by XC (including such financial statements, schedules or other financial data relating to FX and its Subsidiaries reasonably requested by XC as may be reasonably necessary to consummate any such financing, including any pro forma financial statements or other information determined by XC to be legally required or customary in connection with any such financing); (ii) use its reasonable best efforts to obtain the consent of its auditor to the use of such auditor’s reports with respect to the financial statements of FX and its Subsidiaries in accordance with normal custom and practice and use reasonable best efforts to reasonably cooperate with and reasonably assist Parentcause such auditor to provide customary comfort letters to the underwriters, at the Parent’s requestinitial purchasers or placement agents, sole cost and expenseas applicable, in connection with arrangingany such financing; (iii) provide direct contact between (x) senior management and advisors, obtaining including auditors, of FX and syndicating any Financing and causing (y) the conditions in the Financing Documents and any commitment letters entered into proposed lenders, underwriters, initial purchasers or placement agents, as applicable, and/or XC’s auditors in connection with such Financing to be satisfied, including using reasonable best efforts in (i) assisting with, the financing, at reasonable times and furnishing information for upon reasonable advance notice; (iv) make available the purposes of, the employees and advisors of FX and its Subsidiaries to provide reasonable assistance with XC’s preparation of business projections, financing documents and offer materials; (v) obtain the cooperation and assistance of counsel to FX and its Subsidiaries in providing customary prospectuses legal opinions and other services; (vi) provide information, documents, authorization letters, opinions and certificates, enter into agreements (including any pro forma financial information supplemental indentures) and any information required under Article 18(2) of Commission Delegated Regulation (EU) 2019/980), offering documents, syndication documents and materials, including bank information memoranda and private placement memoranda, lender and investor presentations, rating agency materials and presentations and take other actions that are or may be customary marketing materials in connection with the Financing (all financing or necessary or desirable to permit XC to fulfill conditions or obligations under the financing documents, provided that such documents agreements entered into shall be conditioned upon, and materials, collectivelyshall not take effect until, the “Marketing Documents”RA Closing; (vii) (it being understood and agreed that the Marketing Documents shall include (or otherwise be subject to) any customary exculpation language, as the case may be, with respect to the Company, its Affiliates and their respective Representatives), (ii) furnishing to the Parent as promptly as reasonably practicable financial statements and operational information (including consolidated financial statements for interim periods up until the Closing Date) that can be prepared without undue burden with respect to the Company and its Subsidiary as is reasonably requested by Parent (the “Required Information”), (iii) assisting assist in the preparation of schedules one or more confidential information memoranda, prospectuses, offering memoranda and other marketing and syndication materials reasonably requested by XC; (viii) use commercially reasonable efforts to collateral agreements by providing information ensure that the syndication efforts benefit materially from the existing banking relationships of the Company Entities required to be made available on such schedules FH, FX and their respective Subsidiaries; (ix) permit XC’s reasonable use of FX’s and its Subsidiaries’ logos for purposes of the arrangement or consummation of the Financing, (iv) subject to any contractual agreement in effect, facilitating the pledging of collateral for the Financing, which shall not be required to be delivered or effective until at or promptly following the Effective Time, (v) subject to any contractual agreement in effect, obtaining the Payoff Letter, syndication and the related lien releases, and instruments of termination or dischargeunderwriting, as applicable, required pursuant of financing (subject to Section 6.12advance review of and consultation with respect to such use); (x) participate in meetings and presentations with prospective lenders and investors, as applicable (including the participation in each case which shall provide thatsuch meetings of FX’s senior management); (xi) use commercially reasonable efforts to assist in procuring any necessary rating agency ratings or approvals; (xii) not commence or effect any offering, if sufficient funds are received by placement or arrangement of any debt securities or bank financing competing with the proposed financing sources under (excluding, for the Credit Agreement in order avoidance of doubt, the RA Loan (and not permit any such offering, placement or arrangements to pay off in full all obligations (other than the Excluded Obligations) in connection therewith or secured thereby, such release, termination and/or discharge shall be effective, occur on its behalf); and (vixiii) furnishing Parent as promptly as reasonably practical (furnish XC and at least three (3) business days prior to the Closing Date) any lenders involved with such financing with all documentation and other information related required with respect to the Company and its Subsidiary required by regulatory authorities such financing under applicable “know your customer” and anti-money laundering rules and regulations. In addition, including the PATRIOT ActFH shall, that has been reasonably requested in writing by Parent or and shall cause its Financing Sources at least ten (10) business days prior to the Closing Date. The Company hereby consents to the use of its Subsidiaries and its Subsidiary’s logos in connection with the Financing so long as such logos are used solely their respective Representatives to, upon request, (i) in a manner use commercially reasonable efforts to ensure that is not intended the syndication efforts with respect to or that is not reasonably likely to harm or disparage such financing benefit materially from the Company or existing banking relationships of FH and its Subsidiary or the reputation or goodwill of the Company or its Subsidiary Subsidiaries and (ii) solely in connection not commence or effect any offering, placement or arrangement of any debt securities or bank financing competing with a description the proposed financing (excluding, for the avoidance of doubt, the CompanyRA Loan (and not permit any such offering, placement or arrangements to occur on its business and products or the Mergerbehalf).
(b) To the extent reasonably necessary for XC to receive the proceeds of the full amount of the Dividend Loan, (i) FH shall cause FX to use all reasonable best efforts to (A) obtain customary payoff letters from third-party lenders and trustees with respect to the indebtedness of FX and its Subsidiaries specified by XC to FH no later than ten (10) Business Days prior to the RA Closing and (B) deliver or cause to be delivered such payoff letters to XC at the RA Closing, and (ii) at the RA Closing, subject to XC making available necessary funds to do so, FH shall cause FX to use all reasonable best efforts to, and to cause its Subsidiaries to, permanently (x) terminate the credit facilities requested by XC to be so terminated, if and to the extent such facilities are specified by XC to FH no later than ten (10) Business Days prior to the RA Closing, and all related contracts to which FX or any of its Subsidiaries is a party and (y) cause to be released any Liens on its assets relating to such terminated credit facilities.
(c) Notwithstanding the requirements of Section 6.16(a) or anything in this Agreement Section 5.13 to the contrary, in fulfilling its obligations pursuant to this Section 5.13, (i) neither the Company nor any none of FH, its Affiliates Subsidiaries or their respective its Representatives shall be required to enter into, approve or perform (or commit to enter into, approve or perform) any certificate, document, agreement, or instrument, in each case which will be effective prior to the Effective Time, (ii) nothing herein shall require cooperation contemplated thereby to the extent it would interfere unreasonably with the business or operations of the Company or any of its Affiliates or their respective Affiliates, (iii) none of the Company nor any of its Affiliates or their respective Representatives, will be required to (1) pay or commit to pay any commitment or other fee, (2) reimburse or incur provide any costs or expenses security or incur any other liability (including any guarantee, indemnity or pledge) in connection with the Financing or the Marketing Documents any financing of XC prior to the Effective TimeRA Closing, (3ii) provide any financial data other than requested cooperation shall not unreasonably interfere with the Required Information, or (4) provide any legal opinion or reliance letters or any certificate (in the case ongoing operations of the Company or FX and its Subsidiary that would be required to be delivered prior to the Effective Time), comfort letter or opinion of any of its Representatives, (iv) nothing herein will involve any binding commitment by the Company, any of its Affiliates or any of their respective Representatives which commitment is not conditioned on the Effective Time and does not terminate without liability to the Company, its Affiliates and their respective Representatives upon the termination of this AgreementSubsidiaries, and (viii) nothing herein will require the Company, any of its Affiliates or any of their respective Representatives to provide any information or take any action, the disclosure or taking of which would violate applicable Legal Requirements, any fiduciary duty, any Contract or obligation of confidentiality owing to a third party, or jeopardize the protection of the attorney-client privilege (or similar protections) held by the Company or any of its Affiliates; provided that, if the Company does not provide or cause its Representatives to provide such access or such information in reliance on the foregoing, then the Company shall (1) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1) any Representative of the Company or its Subsidiary to deliver any certificate or opinion or take any other action under this Section 6.16 that could reasonably be expected to result in personal liability to such Representative; (2) the Board of Directors (or any committee or subcommittee thereof) or the board of directors, managers, managing member or any similar controlling body of any Subsidiary of the Company to approve (or otherwise take any corporate or similar action with respect to) any financing (including the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) the Company and its Subsidiary to take any action that would conflict with or violate its organizational or governance documents or any applicable Legal Requirements, or result in the contravention of, or that could reasonably be expected to result in a violation of breach of, or default under, any agreement to which the Company or its Subsidiary is a party.
(c) Subject to any applicable Legal Requirements, all non-public or other confidential information provided by the Company, its Subsidiary or any of their respective Representatives pursuant to this Agreement will be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Purchaser will be permitted to disclose such information to any Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties to the Financing and to any underwriters, initial purchasers or placement agents in connection with the Financing (and, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; or (ii) are subject to other confidentiality undertakings reasonably satisfactory to the Company and of which the Company is a beneficiary.
(d) If the Closing does not occurXC shall, promptly upon request by the CompanyFH, Parent will reimburse the Company FX for any all reasonable and documented and reasonable out-of-pocket costs and expenses (including attorneys’ fees) incurred by the Company FX or its Subsidiary any of FX’s Subsidiaries in connection with the cooperation of the Company and its Subsidiary contemplated by this Section 6.16 (it being understood and agreed that the reimbursement set forth in this Section 6.16(d) such cooperation. XC shall not apply to any fees, costs, and expenses incurred by, or on behalf of, the Company, its Subsidiary or any of its Representatives in connection with its ordinary course financial reporting requirements or in the provision of data that, in each case, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding this Section 6.16).
(e) The Parent shall indemnify, defend indemnify and hold harmless the Company Entities FX and their respective Representatives its Subsidiaries from and against any and all losses, damages, claims, interest, awards, judgments, penalties, costs and expenses losses or damages actually suffered or incurred by any of them directly in connection with the Financing arrangement of any such financing (including any action taken in accordance with this Section 6.16) and costs and expenses incurred in defending against the foregoing, except other than to the extent such lossesrelated to information provided by FH, damagesFX, claims, costs their respective Subsidiaries or expenses arise from the willful breach of this Agreement by the Company, as finally determined by a court of competent jurisdiction, or from fraud on the part of the Companytheir respective Representatives).
Appears in 1 contract
Financing Cooperation. (a) Subject to Section 6.16(b), prior to Closing or termination From the date of this AgreementAgreement until the Closing Date, the Company shall, and shall cause its Subsidiaries and their respective Representatives to, agrees to use reasonable best efforts to reasonably cooperate with provide, and reasonably assist Parentshall use reasonable best efforts to cause its Subsidiaries and its and their officers, directors and employees to use reasonable best efforts to provide, in each case at the Parent’s request, sole cost and expense, such cooperation as may be reasonably requested by Parent in connection with arranging, obtaining and syndicating the arrangement of any Financing and causing the conditions in the Financing Documents and any commitment letters entered into debt financing by Parent in connection with such Financing to be satisfiedthe transactions contemplated by this Agreement, including any consent or amendment under the Existing RBC Credit Facility (the “Debt Financing”), including using reasonable best efforts in to: (i) assisting with, and furnishing information for the purposes of, the preparation of customary prospectuses (including any pro forma furnish to Parent historical financial information of the Company and any information required under Article 18(2) of Commission Delegated Regulation (EU) 2019/980), offering documents, syndication documents and materials, including bank information memoranda and private placement memoranda, lender and investor presentations, rating agency materials and presentations and other customary marketing materials its Subsidiaries reasonably requested in connection with the Debt Financing, (ii) assist with the preparation of definitive documents for the Debt Financing and the schedules and exhibits thereto, in each case, as may be reasonably requested by Parent, (iii) cooperate with Parent in facilitating the pledge of collateral and delivering original certificates with respect to all such documents and materials, collectively, the “Marketing Documents”certificated securities (with transfer powers executed in blank) (it being understood that no such pledging of collateral will be effective until at or after the Closing and agreed that such delivery of originals shall occur at or after the Marketing Documents shall include Closing), and (or otherwise be subject toiv) any customary exculpation languageprovide Parent, as the case may be, with respect at least three (3) Business Days prior to the Company, its Affiliates Closing Date all documentation and their respective Representatives), (ii) furnishing to the Parent as promptly as reasonably practicable financial statements and operational other information (including consolidated financial statements for interim periods up until the Closing Date) that can be prepared without undue burden with respect to the Company and its Subsidiary Subsidiaries as is shall have been reasonably requested in writing by Parent (the “Required Information”), (iii) assisting in the preparation of schedules to collateral agreements by providing information of the Company Entities required to be made available on such schedules for purposes of the arrangement or consummation of the Financing, (iv) subject to any contractual agreement in effect, facilitating the pledging of collateral for the Financing, which shall not be required to be delivered or effective until at or promptly following the Effective Time, (v) subject to any contractual agreement in effect, obtaining the Payoff Letter, and the related lien releases, and instruments of termination or discharge, as applicable, required pursuant to Section 6.12, in each case which shall provide that, if sufficient funds are received by the financing sources under the Credit Agreement in order to pay off in full all obligations (other than the Excluded Obligations) in connection therewith or secured thereby, such release, termination and/or discharge shall be effective, and (vi) furnishing Parent as promptly as reasonably practical (and at least three ten (310) business days Business Days prior to the Closing Date) Date that is required in connection with all documentation and other information related to the Company and its Subsidiary required Debt Financing by U.S. regulatory authorities under applicable “know your know-your-customer” ”, beneficial ownership and anti-money laundering rules and regulations, including the PATRIOT Patriot Act. Notwithstanding the foregoing, that has been reasonably (A) such requested in writing by Parent cooperation shall not (i) unreasonably disrupt or interfere with the operations of the Company or its Financing Sources at least ten Subsidiaries or (10ii) business days cause competitive harm to the Company or its Subsidiaries if the transactions contemplated by this Agreement are not consummated, (B) nothing in this Section 5.16 shall require cooperation to the extent that it would reasonably be expected to (x) cause any condition to the Closing set forth in Article VI to not be satisfied, (y) increase materially the risk of any such condition not being satisfied or the satisfaction thereof being materially delayed, or (z) cause any breach of this Agreement, (C) neither the Company nor any of its Subsidiaries shall be required to (1) pay any commitment or other similar fee prior to the Closing DateEffective Time, (2) incur or assume any liability in connection with the Debt Financing prior to the Effective Time, (3) provide access to or disclose information where the Company determines that such access or disclosure would reasonably be likely to jeopardize the attorney-client privilege or contravene any applicable Law or contract or (4) take any action that will conflict with or violate their respective certificate of incorporation, by-laws or comparable organizational documents or result in the contravention of and (D) none of the Company, its Subsidiaries or their respective directors, officers or employees shall be required to execute, deliver or enter into, or perform any agreement, document or instrument with respect to any Debt Financing that is effective prior to the Closing. The Company hereby consents to the use of its and its Subsidiary’s Subsidiaries’ logos in connection with the Financing so long as Debt Financing; provided that such logos are used solely (i) in a manner that is not intended to or that is not to, nor reasonably likely to to, harm or disparage the Company or its Subsidiary or the reputation or goodwill of the Company or its Subsidiary and (ii) solely in connection with a description of the Company, its business and products or the MergerSubsidiaries.
(b) Notwithstanding the requirements of Section 6.16(a) or anything in this Agreement to the contrary, (i) neither the Company nor any of its Affiliates or their respective Representatives shall be required to enter into, approve or perform (or commit to enter into, approve or perform) any certificate, document, agreement, or instrument, in each case which will be effective prior to the Effective Time, (ii) nothing herein shall require cooperation contemplated thereby to the extent it would interfere unreasonably with the business or operations of the Company or any of its Affiliates or their respective Affiliates, (iii) none of the Company nor any of its Affiliates or their respective Representatives, will be required to (1) pay or commit to pay any commitment or other fee, (2) reimburse or incur any costs or expenses or incur any other liability (including any guarantee, indemnity or pledge) in connection with the Financing or the Marketing Documents prior to the Effective Time, (3) provide any financial data other than the Required Information, or (4) provide any legal opinion or reliance letters or any certificate (in the case of the Company or its Subsidiary that would be required to be delivered prior to the Effective Time), comfort letter or opinion of any of its Representatives, (iv) nothing herein will involve any binding commitment by the Company, any of its Affiliates or any of their respective Representatives which commitment is not conditioned on the Effective Time and does not terminate without liability to the Company, its Affiliates and their respective Representatives upon the termination of this Agreement, and (v) nothing herein will require the Company, any of its Affiliates or any of their respective Representatives to provide any information or take any action, the disclosure or taking of which would violate applicable Legal Requirements, any fiduciary duty, any Contract or obligation of confidentiality owing to a third party, or jeopardize the protection of the attorney-client privilege (or similar protections) held by the Company or any of its Affiliates; provided that, if the Company does not provide or cause its Representatives to provide such access or such information in reliance on the foregoing, then the Company shall (1) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1) any Representative of the Company or its Subsidiary to deliver any certificate or opinion or take any other action under this Section 6.16 that could reasonably be expected to result in personal liability to such Representative; (2) the Board of Directors (or any committee or subcommittee thereof) or the board of directors, managers, managing member or any similar controlling body of any Subsidiary of the Company to approve (or otherwise take any corporate or similar action with respect to) any financing (including the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) the Company and its Subsidiary to take any action that would conflict with or violate its organizational or governance documents or any applicable Legal Requirements, or result in the contravention of, or that could reasonably be expected to result in a violation of breach of, or default under, any agreement to which the Company or its Subsidiary is a party.
(c) Subject to any applicable Legal Requirements, all non-public or other confidential information provided by the Company, its Subsidiary or any of their respective Representatives pursuant to this Agreement will be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Purchaser will be permitted to disclose such information to any Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties to the Financing and to any underwriters, initial purchasers or placement agents in connection with the Financing (and, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; or (ii) are subject to other confidentiality undertakings reasonably satisfactory to the Company and of which the Company is a beneficiary.
(d) If the Closing does not occur, promptly upon request by the Company, Parent will reimburse the Company for any documented and reasonable out-of-pocket costs and expenses (including attorneys’ fees) incurred by the Company or its Subsidiary in connection with the cooperation of the Company and its Subsidiary contemplated by this Section 6.16 (it being understood and agreed that the reimbursement set forth in this Section 6.16(d) shall not apply to any fees, costs, and expenses incurred by, or on behalf of, the Company, its Subsidiary or any of its Representatives in connection with its ordinary course financial reporting requirements or in the provision of data that, in each case, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding this Section 6.16).
(e) The Parent shall indemnify, defend and hold harmless each of the Company Entities Company, its Subsidiaries and their respective Representatives Affiliates and representatives (each an “indemnified person”) from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments, penalties, costs judgments and expenses penalties suffered or incurred by any of them in connection with the Debt Financing (including any action taken in accordance with and the performance of their respective obligations under this Section 6.16) 5.16 and any information utilized in connection therewith, other than as a result of such indemnified person’s gross negligence or willful misconduct, as determined by a final judicial determination. Parent shall, promptly upon request of the Company, reimburse the Company and its Subsidiaries for all out-of-pocket fees, costs and expenses incurred by the Company or its Subsidiaries (including those of its Affiliates and representatives) in defending against connection with the foregoingcooperation required by this Section 5.16 (the Parent’s reimbursement obligations under this last sentence of Section 5.16, except the “Financing Obligations”).
(c) For the avoidance of doubt, in no event shall the receipt or availability of any funds or financing (including the Equity Financing or the Debt Financing) by Parent or any of its Affiliates or any other financing be a condition to any of Parent’s or Merger Sub’s obligations under this Agreement.
(d) At the request of Parent, the Company shall provide fully executed payoff letters prior to the extent such losses, damages, claims, costs or expenses arise from the willful breach Closing Date in form and substance reasonably satisfactory to Parent with respect to all indebtedness required as a result of this Agreement by the Company, as finally determined by a court of competent jurisdiction, or from fraud to be repaid on the part of the CompanyClosing Date (or requested by Parent to be so repaid), which payoff letters shall be accompanied by (i) any termination documents required to release any guarantees provided in connection therewith and (ii) any termination and/or release documents required to release any securities interests securing such indebtedness.
Appears in 1 contract
Financing Cooperation. (a) Subject to Section 6.16(b), On and prior to Closing or termination of this Agreementthe Closing, the Company shall, and shall cause its Subsidiaries and their respective Representatives each other Group Company to, use reasonable best efforts to provide, and use reasonable best efforts to cause the Group Companies’ Agents to provide, in each case in a reasonably cooperate with timely manner, reasonable cooperation and reasonably assist Parent, at the Parent’s request, sole cost and expense, assistance to Parent in connection with arrangingthe arrangement of any debt or equity financing for the Transactions, obtaining and syndicating any Financing and causing the conditions in the Financing Documents and any commitment letters entered into in connection with such Financing to be satisfiedincluding, including using reasonable best efforts in as reasonably requested, (i) assisting with, and furnishing information for with due diligence activities of any debt or equity financing sources relating to the purposes of, the preparation of customary prospectuses (including any pro forma financial information and any information required under Article 18(2) of Commission Delegated Regulation (EU) 2019/980), offering documents, syndication documents and materials, including bank information memoranda and private placement memoranda, lender and investor presentations, rating agency materials and presentations and other customary marketing materials in connection with the Financing (all such documents and materials, collectively, the “Marketing Documents”) (it being understood and agreed that the Marketing Documents shall include (or otherwise be subject to) any customary exculpation language, as the case may be, with respect to the Company, its Affiliates and their respective Representatives), Group Companies; (ii) furnishing making management of the Group Companies available to the Parent as promptly as reasonably practicable financial statements participate in virtually-held due diligence meetings, marketing sessions, and operational information (including consolidated financial statements for interim periods up until the Closing Date) that can be prepared without undue burden sessions with respect to the Company rating agencies and its Subsidiary as is reasonably requested by Parent (the “Required Information”), debt and equity financing sources; (iii) assisting in with the preparation of schedules to collateral agreements by providing information of the Company Entities required to be made available on such schedules for purposes of the arrangement or consummation of the Financing, any Offering Documents; (iv) subject to any contractual agreement in effect, facilitating the pledging of collateral for the Financing, which shall not be required to be delivered or effective until at or promptly following the Effective Time, (v) subject to any contractual agreement in effect, obtaining the Payoff Letterpromptly, and the related lien releases, and instruments of termination or discharge, as applicable, required pursuant to Section 6.12, in each case which shall provide that, if sufficient funds are received by the financing sources under the Credit Agreement in order to pay off in full all obligations (other than the Excluded Obligations) in connection therewith or secured thereby, such release, termination and/or discharge shall be effective, and (vi) furnishing Parent as promptly as reasonably practical (and any event at least three (3) business days prior to the Closing Date) with , furnishing all documentation and other information related to the Company and its Subsidiary required reasonably requested by regulatory authorities under Parent in connection with applicable “know your customer” and anti-money laundering rules and regulationsLaws, including the USA PATRIOT ActAct of 2001, that has been as amended; and (v) providing such certificates, documents and financial and other information as may be reasonably requested in writing by Parent or its Financing Sources at least ten (10) business days prior to the Closing Date. The Company hereby consents to the use of its and its Subsidiary’s logos in connection with debt and equity financing sources, including customary comfort letters from the Financing so long as such logos are used solely (i) in a manner Group Companies’ independent accountants; provided that is not intended to or that is not reasonably likely to harm or disparage the Company or its Subsidiary or the reputation or goodwill of the Company or its Subsidiary and (ii) solely in connection with a description of the Company, its business and products or the Merger.
(b) Notwithstanding the requirements of Section 6.16(a) or anything in this Agreement to the contrary, (i) neither the Company nor any of its Affiliates or their respective Representatives shall be required to enter into, approve or perform (or commit to enter into, approve or perform) any certificate, document, agreement, or instrument, in each case which will be effective prior to the Effective Time, (ii) nothing herein shall require (A) such cooperation contemplated thereby to the extent it would interfere unreasonably with the business or operations of the Group Companies or require travel by any Group Company officers or employees; (B) the Group Companies to prepare or deliver any financial statements or financial information not previously provided to Parent; or (C) deliver or cause the delivery of any legal opinions or any of its Affiliates or their respective Affiliatescertificate as to solvency. Notwithstanding anything in this Agreement to the contrary, (iii) none of in no event shall the Company Company, nor any of its Affiliates or their respective Representativesother Group Company, will be required to (1) pay bear any out-of-pocket cost or commit to expense, pay any commitment or other fee, (2) reimburse fee or incur any costs Liability (collectively, the “Financing Liabilities”) or expenses make, execute, deliver or incur take any other liability (including corporate actions to authorize any guaranteecommitment, indemnity Contract, certificate or pledge) document prior to Closing in connection with the Financing any such debt or the Marketing Documents prior to the Effective Timeequity financing. Parent shall indemnify, (3) provide any financial data other than the Required Information, or (4) provide any legal opinion or reliance letters or any certificate (in the case of the Company or its Subsidiary that would be required to be delivered prior to the Effective Time), comfort letter or opinion of any of its Representatives, (iv) nothing herein will involve any binding commitment by the Company, any of its Affiliates or any of their respective Representatives which commitment is not conditioned on the Effective Time hold harmless and does not terminate without liability to the Company, its Affiliates and their respective Representatives upon the termination of this Agreement, and (v) nothing herein will require the Company, any of its Affiliates or any of their respective Representatives to provide any information or take any action, the disclosure or taking of which would violate applicable Legal Requirements, any fiduciary duty, any Contract or obligation of confidentiality owing to a third party, or jeopardize the protection of the attorney-client privilege (or similar protections) held by the Company or any of its Affiliates; provided that, if the Company does not provide or cause its Representatives to provide such access or such information in reliance on the foregoing, then the Company shall (1) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1) any Representative of the Company or its Subsidiary to deliver any certificate or opinion or take any other action under this Section 6.16 that could reasonably be expected to result in personal liability to such Representative; (2) the Board of Directors (or any committee or subcommittee thereof) or the board of directors, managers, managing member or any similar controlling body of any Subsidiary of the Company to approve (or otherwise take any corporate or similar action with respect to) any financing (including the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) the Company and its Subsidiary to take any action that would conflict with or violate its organizational or governance documents or any applicable Legal Requirements, or result in the contravention of, or that could reasonably be expected to result in a violation of breach of, or default under, any agreement to which the Company or its Subsidiary is a party.
(c) Subject to any applicable Legal Requirements, all non-public or other confidential information provided by the Company, its Subsidiary or any of their respective Representatives pursuant to this Agreement will be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Purchaser will be permitted to disclose such information to any Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties to the Financing and to any underwriters, initial purchasers or placement agents in connection with the Financing (and, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; or (ii) are subject to other confidentiality undertakings reasonably satisfactory to the Company and of which the Company is a beneficiary.
(d) If the Closing does not occur, promptly upon request by the Company, Parent will reimburse the Company for any documented and reasonable out-of-pocket costs and expenses (including attorneys’ fees) Financing Liabilities incurred by the Company or its Subsidiary Group Companies and their Affiliates in connection with performing the cooperation of the Company and its Subsidiary contemplated by this Section 6.16 (it being understood and agreed that the reimbursement set forth covenants contained in this Section 6.16(d) shall not apply to any fees, costs, and expenses incurred by, or on behalf of, the Company, its Subsidiary or any of its Representatives in connection with its ordinary course financial reporting requirements or in the provision of data that, in each case, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding this Section 6.16).
(e) The Parent shall indemnify, defend and hold harmless the Company Entities and their respective Representatives from and against any and all losses, damages, claims, interest, awards, judgments, penalties, costs and expenses suffered or incurred by any of them in connection with the Financing (including any action taken in accordance with this Section 6.16) and costs and expenses incurred in defending against the foregoing5.15, except to the extent such losses, damages, claims, costs or expenses arise resulting from the gross negligence or willful breach of this Agreement by the Company, as finally determined by a court of competent jurisdiction, or from fraud on the part misconduct of the CompanyGroup Companies or any of their Affiliates.
Appears in 1 contract
Samples: Merger Agreement (Kbr, Inc.)
Financing Cooperation. (a) Subject 6.11.1 Prior to the Effective Time and subject to Section 6.16(b), prior to Closing or termination of this Agreement6.11.2, the Company shall, shall use its reasonable best efforts to and shall cause its Subsidiaries and shall use reasonable best efforts to cause their respective Representatives to, use reasonable best efforts to reasonably cooperate with and reasonably assist Parentprovide all cooperation that is necessary, at the Parent’s request, sole cost and expense, proper or advisable in connection with arranging, obtaining Parent’s and syndicating any Merger Sub’s Financing and causing to the conditions extent customarily provided by companies in the Financing Documents and any commitment letters entered into in connection with such Financing to Company’s position for financings of the type contemplated by the Financing, as may be satisfiedreasonably requested by Parent, US HoldCo or Merger Sub, including using reasonable best efforts in to:
(i) assisting withmake senior management and advisors (including financial advisors, counsel and auditors) of the Company and its Subsidiaries available to participate in a reasonable number of meetings, presentations, road shows and due diligence sessions with proposed lenders or agents or investors with respect to the Financing, and furnishing information for in sessions with rating agencies or other syndication activities, all at reasonable times and locations to be mutually agreed (acting reasonably) and upon reasonable notice;
(ii) provide reasonable access by Parent and any proposed lenders or agents, and their respective officers, employees, consultants and advisors (including legal, valuation and accounting advisors), to the purposes ofbooks and records, properties, Company Employees and Representatives and assist with due diligence activities relating to the Company’s and its Subsidiaries’ financial information, all at reasonable times and locations to be mutually agreed (acting reasonably) and upon reasonable notice;
(iii) assist with the preparation of customary prospectuses (including any pro forma information memoranda, preliminary and final offering memoranda or prospectuses, registration statements, financial information and any information required under Article 18(2) of Commission Delegated Regulation (EU) 2019/980), offering documents, syndication documents and materialsother materials to be used in connection with the Financing, including bank promptly furnishing any additional customary information memoranda as Parent reasonably requests in order to prepare such materials;
(iv) assist with the preparation of and, subject to the occurrence of the Effective Time, execute and private placement memorandadeliver any documentation as may be reasonably requested by Parent, lender and investor presentations, rating agency materials and presentations and other customary marketing materials US HoldCo or Merger Sub in connection with the Financing (all such including the assumption of any existing Indebtedness of the Company or its Subsidiaries) and otherwise facilitate and, as necessary, obtain surveys and title insurance as reasonably requested by Parent, US HoldCo or Merger Sub;
(v) provide customary representation and authorization letters to the Financing Sources authorizing the distribution of Company information in documents and materialsprovided to prospective lenders for the purposes of the Financing, collectivelyincluding the syndication of the Facilities Agreement, which shall contain customary representations to the “Marketing Documents”) (it being understood and agreed Financing Sources that the Marketing Documents shall include information provided by the Company (x) does not contain a material misstatement or otherwise be subject toomission such that the statements made, in light of the circumstances under which they were made, are misleading, and (y) any customary exculpation language, as the case may be, with respect to information to be included in public side versions of such documents, if any, does not include material non-public information about the Company, Company or its Affiliates Subsidiaries;
(vi) request and their respective Representativescooperate in obtaining customary Lien terminations and/or releases and instruments of discharge (including payoff documentation), relating to (iiin each case) furnishing to the Parent as promptly as reasonably practicable financial statements and operational information (including consolidated financial statements for interim periods up until the Closing Date) that can be prepared without undue burden with respect to any Indebtedness of the Company and its Subsidiary Subsidiaries;
(vii) provide information necessary for Parent to prepare pro forma financial information and pro forma financial statements and other materials for rating agency presentations, bank information memoranda, business projections, private placement memoranda, presentations and similar documents used in connection with the Financing;
(viii) assist in procuring any necessary rating agency ratings or approvals and participate in a reasonable number of sessions with rating agencies, all at reasonable times and location to be mutually determined (acting reasonably) and upon reasonable notice;
(ix) request that its independent accountants and former independent accountants provide reasonable assistance and cooperation to Parent, US HoldCo or Merger Sub, including by requesting that they participate in due diligence sessions, assisting in the preparation of any pro forma financial statements to be included in the materials relating to the Financing and provide consent for the use of their audit reports relating to the Company in materials relating to the Financing, all as reasonably requested by Parent;
(x) furnish to Parent and its Financing Sources as promptly as practicable (A) all financial statements of the Company and its Subsidiaries that are necessary to satisfy any applicable condition set forth in the documents used in connection with the Financing, including the Facilities Agreement, (B) the financial information of the Company and its Subsidiaries necessary for Parent to prepare any pro forma financial statements for the historical periods required by the documents used in connection with the Financing, including the Facilities Agreement, as are customarily included (which shall also include providing cooperation that is reasonably requested by Parent (in its preparation of such pro forma financial statements or any related pro forma adjustments or, without limitation of the “Required Information”cooperation required by Section 6.18.3, any conversion or reconciliation of Company Financial Statements), and (iiiC) assisting such other financial and other pertinent information regarding the Company and its Subsidiaries (including information regarding the business, operations and financial projections thereof) as may be reasonably requested by Parent, US HoldCo or Merger Sub and customarily provided for financings of the type contemplated by the Facilities Agreement to assist in the preparation of schedules to collateral agreements by providing a customary confidential information memorandum or other customary information documents used in financings (or the syndication of financings), including of the Company Entities required type contemplated by the Facilities Agreement;
(xi) furnish to be made available on such schedules for purposes of Parent and its Financing Sources, at least five Business Days prior to the arrangement or consummation of the Financing, (iv) subject to any contractual agreement in effect, facilitating the pledging of collateral for the Financing, which shall not be required to be delivered or effective until at or promptly following the anticipated Effective Time, (v) subject to any contractual agreement in effect, obtaining the Payoff Letter, and the related lien releases, and instruments of termination or discharge, as applicable, required pursuant to Section 6.12, in each case which shall provide that, if sufficient funds are received by the financing sources under the Credit Agreement in order to pay off in full all obligations (other than the Excluded Obligations) in connection therewith or secured thereby, such release, termination and/or discharge shall be effective, and (vi) furnishing Parent as promptly as reasonably practical (and at least three (3) business days prior to the Closing Date) with all documentation and other information related to about the Company and its Subsidiary Subsidiaries required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, regulations (including the PATRIOT Patriot Act, that has been reasonably ) to the extent requested in writing by Parent or its Financing Sources at least ten (10) business calendar days prior to the Closing Dateanticipated Effective Time, as required to be delivered pursuant to the Facilities Agreement or that is otherwise necessary to satisfy the conditions thereof; and
(xii) subject to the occurrence of the Effective Time, taking all corporate actions necessary to permit consummation of the Financing as may be reasonably requested by Parent, US HoldCo or Merger Sub. The Company hereby consents to the use of its and its Subsidiary’s Subsidiaries’ logos in connection with the Financing so long as (including in respect of the syndication of the Facilities Agreement); provided that such logos are used solely (i) in a manner that is not intended to or that is not reasonably likely to harm or disparage the Company or any of its Subsidiary Subsidiaries or the reputation or goodwill of the Company or any of its Subsidiary Subsidiaries or any of their logos and (ii) solely on such other customary terms and conditions as the Company shall reasonably impose. It is understood by the Parties that information provided by the Company pursuant to Section 6.11.1 may be disclosed to prospective lenders and investors in connection with the syndication and marketing of the Financing, in each case subject to confidentiality undertakings from such prospective lenders and investors customary for a description syndication process and subject to customary acknowledgements from such lenders and investors as to the receipt of material non-public information in compliance with Applicable Law (to the extent material non-public information is disclosed), and that such disclosure shall not be restricted by the existing Confidentiality Agreement between the parties.
6.11.2 Notwithstanding anything in this Section 6.11 to the contrary, in fulfilling its obligations pursuant to this Section 6.11, (i) nothing in this Section 6.11 shall require cooperation to the extent that it would (A) unreasonably interfere with the ongoing business or operations of the Company or its Subsidiaries, (B) cause the Company or its Subsidiaries to incur Liability in connection with the Financing prior to the Effective Time (other than in connection with customary representation and authorization letters and other than such Liabilities that Parent commits to reimburse), (C) cause any director, officer or employee of the Company or its Subsidiaries to incur any personal liability, (D) in the reasonable judgment of the Company after consultation with its outside legal counsel, (x) result in the material contravention of, or a default under, any Applicable Laws or under any Company Material Contract or (y) require the Company to provide access to or disclose information that the Company determines would result in a loss or waiver of attorney-client privilege of the Company or its Subsidiaries (in each case it being agreed that the Company shall give notice to Parent of the fact that it is withholding such information or documents pursuant to this clause (D), and thereafter the Company and Parent shall reasonably cooperate to endeavor to cause such information to be provided in a manner that would not reasonably be expected to violate the applicable restriction or waive the applicable privilege or protection), or (E) require the Company to prepare separate financial statements for any Subsidiary of the Company, its business and products (ii) none of the board of directors (or the Merger.
(bequivalent bodies) Notwithstanding the requirements of Section 6.16(a) or anything in this Agreement to the contrary, (i) neither the Company nor any of and its Affiliates or their respective Representatives Subsidiaries shall be required to enter into, approve pass any resolution or perform (or commit to enter into, approve or perform) take any certificate, document, agreement, or instrument, in each case which will be similar actions approving the Financing that are effective prior to the Effective Time, (ii) nothing herein shall require cooperation contemplated thereby to the extent it would interfere unreasonably with the business or operations of the Company or any of its Affiliates or their respective Affiliates, and (iii) none of the Company nor any of Company, its Affiliates Subsidiaries or their respective Representatives, will its Representatives shall be required to (1) pay or commit to pay any commitment arrangement or underwriting or other fee, (2) reimburse fee or incur provide any costs or expenses security or incur any other liability (including any guarantee, indemnity or pledge) Liability in connection with the any Financing or the Marketing Documents prior to the Effective Time, (3) provide any financial data other than the Required Information, or (4) provide any legal opinion or reliance letters or any certificate (in the case of . Parent shall reimburse the Company or its Subsidiary that would be required to be delivered prior to the Effective Time), comfort letter or opinion of any of its Representatives, (iv) nothing herein will involve any binding commitment by the Company, any of its Affiliates or any of their respective Representatives which commitment is not conditioned on the Effective Time for all reasonable and does not terminate without liability to the Company, its Affiliates and their respective Representatives upon the termination of this Agreement, and (v) nothing herein will require the Company, any of its Affiliates or any of their respective Representatives to provide any information or take any action, the disclosure or taking of which would violate applicable Legal Requirements, any fiduciary duty, any Contract or obligation of confidentiality owing to a third party, or jeopardize the protection of the attorneydocumented out-client privilege (or similar protections) held of-pocket costs incurred by the Company or any of its Affiliates; provided that, if the Company does not provide or cause Subsidiaries in connection with fulfilling its Representatives to provide such access or such information in reliance on the foregoing, then the Company shall (1) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1) any Representative of the Company or its Subsidiary to deliver any certificate or opinion or take any other action under this Section 6.16 that could reasonably be expected to result in personal liability to such Representative; (2) the Board of Directors (or any committee or subcommittee thereof) or the board of directors, managers, managing member or any similar controlling body of any Subsidiary of the Company to approve (or otherwise take any corporate or similar action with respect to) any financing (including the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) the Company and its Subsidiary to take any action that would conflict with or violate its organizational or governance documents or any applicable Legal Requirements, or result in the contravention of, or that could reasonably be expected to result in a violation of breach of, or default under, any agreement to which the Company or its Subsidiary is a party.
(c) Subject to any applicable Legal Requirements, all non-public or other confidential information provided by the Company, its Subsidiary or any of their respective Representatives obligations pursuant to this Agreement will be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Purchaser will be permitted to disclose such information to any Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties to the Financing and to any underwriters, initial purchasers or placement agents in connection with the Financing (and, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; or (ii) are subject to other confidentiality undertakings reasonably satisfactory to the Company and of which the Company is a beneficiary.
(d) If the Closing does not occur, promptly upon request by the Company, Parent will reimburse the Company for any documented and reasonable out-of-pocket costs and expenses Section 6.11 (including reasonable attorneys’ fees) incurred by , but excluding, for the Company or its Subsidiary in connection with avoidance of doubt, the cooperation costs of the Company and its Subsidiary contemplated by this Section 6.16 (it being understood and agreed that the reimbursement set forth in this Section 6.16(d) shall not apply to preparation of any fees, costs, and expenses incurred by, annual or on behalf of, the Company, its Subsidiary or any of its Representatives in connection with its ordinary course quarterly financial reporting requirements or in the provision of data that, in each case, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding this Section 6.16statements).
(e) The . Parent shall indemnify, defend indemnify and hold harmless the Company Entities and its Subsidiaries (and their respective Representatives Representatives) from and against any and all losses, damages, claims, interest, awards, judgments, penalties, costs and or expenses actually suffered or incurred by any of them in connection with the Financing and any other financing or refinancing transactions undertaken by Parent or its Subsidiaries in connection with the Merger (including any action taken in accordance with this Section 6.16) and costs and expenses incurred in defending against the foregoing, except other than to the extent resulting from information provided to Parent in writing by the Company or its Subsidiaries), except in the event such losses, damages, claims, costs loss or expenses arise damage arises out of or results from the gross negligence, willful misconduct or bad faith by the Company or its Subsidiaries in fulfilling their obligations pursuant to this Section 6.11 or Section 6.12, or a material breach of this Agreement by the Company, as finally determined by a court of competent jurisdiction, or from fraud on the part of the Company.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Stillwater Mining Co /De/)
Financing Cooperation. (a) Subject to Section 6.16(b), prior to Closing or termination of this Agreement, Seller and the Company shall, and shall cause its Subsidiaries each Company Subsidiary to, and shall use their respective Representatives to, use reasonable best efforts to cause their and each Company Subsidiary’s Representatives to, provide all cooperation, as may be reasonably cooperate with requested by Purchaser, to assist Purchaser in causing the conditions to the Debt Commitment Letter to be satisfied and as is otherwise reasonably assist Parent, at the Parent’s request, sole cost and expense, requested by Purchaser in connection with arrangingarranging and obtaining the Debt Financing (provided that such requested cooperation is consistent with applicable Law and does not unreasonably interfere with the ongoing operations of Seller, obtaining and syndicating the Company or any Financing and causing the conditions in the Financing Documents and any commitment letters entered into in connection with such Financing to be satisfiedCompany Subsidiary), including using reasonable best efforts in including:
(i) assisting with, preparing and furnishing information for Purchaser and the purposes of, Lenders as promptly as practicable the preparation financial statements and other financial data required to satisfy the conditions set forth in paragraph 7 of customary prospectuses Exhibit D of the Debt Commitment Letter (including provided that the Company shall not be required to actually prepare any pro forma financial information and any information required under Article 18(2) of Commission Delegated Regulation (EU) 2019/980)or pro forma financial statements, offering documents, syndication documents and materials, including bank information memoranda and private placement memoranda, lender and investor presentations, rating agency materials and presentations and other customary marketing materials but the Company shall assist Purchaser in connection with the Financing (all such documents preparation of pro forma financial information and materials, collectively, the “Marketing Documents”pro forma financial statements) (it the information referred to in this clause (i) being understood and agreed that the Marketing Documents shall include (or otherwise be subject to) any customary exculpation language, referred to as the case may be, with respect to the Company, its Affiliates and their respective Representatives), (ii) furnishing to the Parent as promptly as reasonably practicable financial statements and operational information (including consolidated financial statements for interim periods up until the Closing Date) that can be prepared without undue burden with respect to the Company and its Subsidiary as is reasonably requested by Parent (the “Required Information”);
(ii) causing Seller’s and the Company’s management team (including senior management) to assist in preparation for and to participate in a reasonable number of meetings, presentations, due diligence sessions, road show presentations and bank information memoranda and other drafting sessions with Lenders, potential lenders and rating agencies at reasonable times and upon reasonable advance notice;
(iii) using reasonable best efforts to cause the Company’s external auditors to provide assistance and cooperation to Purchaser, including participating in drafting sessions and accounting due diligence sessions, assisting in the preparation of schedules any pro forma financial statements referred to collateral agreements in clause (i) above, and providing any necessary and customary “comfort letters”;
(iv) assisting Purchaser and the Lenders in the preparation of Debt Marketing Documents (and any supplements thereto), including by promptly providing customary information to be included in any Debt Marketing Documents (including, subject to Seller and the Company having been given a reasonable opportunity to review and comment on any such Debt Marketing Documents, customary authorization letters to the Lenders for the Debt Financing authorizing the distribution of information to prospective lenders or investors and containing a customary representation that such information does not contain a material misstatement or omission and containing a representation that the public side versions of such documents, if any, do not include material nonpublic information about Seller, the Company, their respective subsidiaries or their securities);
(v) reasonably cooperating with the marketing efforts of Purchaser and the Lenders in connection with the Debt Financing, including direct contact between senior management of Seller and the Company and potential lenders in the Debt Financing and using reasonable best efforts to ensure any syndication and marketing efforts benefit from the existing lending and investment banking relationships of Seller and the Company;
(vi) taking all corporate and other actions, subject to the occurrence of the Company Entities required Closing, to permit the consummation of the Debt Financing and the proceeds thereof to be made available on such schedules to Purchaser at the Closing;
(vii) reasonably assisting Purchaser in obtaining any corporate credit and family ratings from any ratings agencies contemplated by the Debt Commitment Letter, including assisting Purchaser and the Lenders in the preparation of customary materials for purposes rating agency presentations;
(viii) furnishing to Purchaser and its financing sources documents reasonably required by Purchaser or its financing sources relating to the repayment of any existing indebtedness of the arrangement Company and/or any Company Subsidiary, and the release of guarantees incurred, and liens granted, by the Company and/or any Company Subsidiary in respect of any existing indebtedness of Seller or consummation its affiliates;
(ix) causing the Company and the Company Subsidiaries (A) to assist in the preparation of, and to execute and deliver, any pledge and security documents, credit agreements, indentures, guarantees, ancillary documents and instruments, hedging agreements, closing certificates and other documents related to the Debt Financing (including delivery of a certificate of the Financingchief financial officer (or other officer with reasonably equivalent responsibilities) of the Company with respect to solvency matters in the form set forth as an annex to the Debt Commitment Letter), in each case, subject to the occurrence of the Closing, (ivB) subject to any contractual agreement provide information required by, and otherwise assist in effectthe preparation of, facilitating schedules thereto as may be reasonably requested by Purchaser and (C) otherwise to facilitate the pledging of collateral for and the granting of security interests in respect of the Debt Financing;
(x) using reasonably best efforts to deliver original stock certificates, which shall not original stock powers and other equity instruments (together with appropriate original powers relating thereto) and original promissory notes (together with appropriate original note allonges relating thereto) to the Lenders on the Closing Date;
(xi) taking customary ministerial company actions, subject to and only effective upon the occurrence of the Closing, reasonably requested by Purchaser to permit the consummation of the Debt Financing;
(xii) updating any Required Information provided to Purchaser and the Lenders as may be required necessary so that the Required Information (A) is Compliant and (B) meets the applicable requirements set forth in the definition of “Required Information”, and providing Purchaser prompt notice of any Required Information ceasing to be delivered or effective until at or promptly following the Effective Time, Compliant; and
(vxiii) subject to any contractual agreement in effect, obtaining the Payoff Letter, and the related lien releases, and instruments of termination or discharge, as applicable, required pursuant to Section 6.12, in each case which shall provide that, if sufficient funds are received by the financing sources under the Credit Agreement in order to pay off in full all obligations (other than the Excluded Obligations) in connection therewith or secured thereby, such release, termination and/or discharge shall be effective, and (vi) furnishing Parent as promptly as reasonably practical (and at least three (3) business days prior to the Closing Date) with , providing all documentation and other information related to about the Company and its Subsidiary required the Company Subsidiaries as is reasonably requested in writing by regulatory authorities under Purchaser at least eight (8) days prior to the Closing in connection with the Debt Financing that relates to applicable “know your customer” and anti-money laundering rules and regulations, regulations including without limitation the USA PATRIOT Act, that has been reasonably requested in writing by Parent or its Financing Sources at least ten (10) business days prior to the Closing Date. The Company hereby consents to the use of its and its Subsidiary’s logos in connection with the Financing so long as such logos are used solely (i) in a manner that is not intended to or that is not reasonably likely to harm or disparage the Company or its Subsidiary or the reputation or goodwill of the Company or its Subsidiary and (ii) solely in connection with a description of the Company, its business and products or the Merger.
(b) Notwithstanding the requirements of Section 6.16(a) or anything in this Agreement to the contrary, (i) neither Seller, the Company (except with respect to any authorization letter delivered pursuant to clause (a)(iv) above) nor any of its Affiliates or their respective Representatives Company Subsidiary shall be required to enter into, approve or perform (or commit to enter into, approve or perform) any certificate, document, agreement, or instrument, in each case which will be effective prior to the Effective Time, (ii) nothing herein shall require cooperation contemplated thereby to the extent it would interfere unreasonably with the business or operations of the Company or any of its Affiliates or their respective Affiliates, (iii) none of the Company nor any of its Affiliates or their respective Representatives, will be required to (1) pay or commit to pay any commitment or other fee, (2) reimburse similar fee or incur enter into any costs binding agreement or expenses commitment or incur any other actual or potential liability (including any guarantee, indemnity or pledge) obligation in connection with the Debt Financing (or the Marketing Documents prior any Alternative Financing) that is not subject to the Effective Timeoccurrence of the Closing, (3ii) provide any financial data other than the Required Informationno director, manager, officer or (4) provide any legal opinion or reliance letters or any certificate (in the case employee of the Company or its Subsidiary that would be required to be delivered prior to the Effective Time)Seller, comfort letter or opinion of any of its Representatives, (iv) nothing herein will involve any binding commitment by the Company, any of its Affiliates or any of their respective Representatives which commitment is not conditioned on the Effective Time and does not terminate without liability to the Company, its Affiliates and their respective Representatives upon the termination of this Agreement, and (v) nothing herein will require the Company, any of its Affiliates or any of their respective Representatives to provide any information or take any action, the disclosure or taking of which would violate applicable Legal Requirements, any fiduciary duty, any Contract or obligation of confidentiality owing to a third party, or jeopardize the protection of the attorney-client privilege (or similar protections) held by the Company or any of its Affiliates; provided that, if the Company does not provide or cause its Representatives to provide such access or such information in reliance on the foregoing, then the Company Subsidiary shall (1) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1) any Representative of the Company or its Subsidiary be required to deliver any certificate or opinion or take any other action under this pursuant to Section 6.16 that could 7.10 to the extent any such action would reasonably be expected to result in personal liability to such Representative; director, manager, officer or employee, and (2iii) none of Seller, the Board Company, any of Directors the Company Subsidiaries or any of their respective directors or officers shall be obligated to adopt resolutions or execute consents to approve or authorize the execution of the Debt Financing (or any committee Alternative Financing), provided that this clause (iii) shall not prohibit the adoption or subcommittee thereof) or the board of directors, managers, managing member or any similar controlling body execution of any Subsidiary resolutions or consents effective no earlier than the Closing Date by any persons that shall remain or will become officers or directors of the Company to approve (or otherwise take any corporate or similar action with respect to) any financing (including the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) of the Company Subsidiaries as of the Closing. Seller and its Subsidiary the Company hereby consent to take any action the use of the Company’s and the Company Subsidiaries’ trademarks and logos in connection with the Debt Financing; provided, that would conflict with or violate its organizational or governance documents or any applicable Legal Requirementssuch trademarks and logos are used solely in a manner that is not intended, or result in the contravention ofreasonably likely, to harm or that could reasonably be expected to result in a violation of breach of, or default under, any agreement to which disparage the Company or its Subsidiary is a partythe reputation or goodwill of the Company.
(c) Subject to any applicable Legal Requirements, all non-public or other confidential information provided by the Company, its Subsidiary or any of their respective Representatives pursuant to this Agreement will be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Purchaser will be permitted to disclose such information to any Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties to the Financing and to any underwriters, initial purchasers or placement agents in connection with the Financing (and, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; or (ii) are subject to other confidentiality undertakings reasonably satisfactory to the Company and of which the Company is a beneficiary.
(d) If the Closing does not occurshall, promptly upon request by the CompanySeller, Parent will reimburse the Company Seller for any all reasonable and documented and reasonable out-of-pocket costs and expenses (including attorneys’ fees) incurred by the Company or its Subsidiary in connection with the cooperation of the Company and its Subsidiary contemplated by this Section 6.16 (it being understood and agreed that the reimbursement set forth in this Section 6.16(d) shall not apply to any fees, costs, and expenses incurred by, or on behalf ofSeller, the Company, the Company Subsidiaries and its Subsidiary or any of its and their respective Representatives in connection with its ordinary course financial reporting requirements or in the provision of data thattheir respective obligations pursuant to Section 7.10(a). Purchaser shall indemnify and hold harmless Seller, in each case, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding this Section 6.16).
(e) The Parent shall indemnify, defend and hold harmless the Company Entities Subsidiaries and their respective Representatives Representatives, from and against any and all claims, losses, liabilities, damages, claims, interest, awards, judgments, penaltiesinquiries, fines and reasonable fees, costs and expenses expenses, including attorneys’ fees and disbursements, suffered or incurred by any of them in connection with the Financing or any Alternative Financing and any information supplied or provided in connection therewith (including any action taken in accordance with this Section 6.16except (i) and costs and expenses incurred in defending against the foregoing, except to the extent such lossessuffered or incurred as a result of the bad faith, damagesgross negligence, claims, costs willful misconduct or expenses arise from the willful material breach of this Agreement by Seller, the Company, any Company Subsidiary or any Representative thereof, in each case as finally determined by a court of competent jurisdictionjurisdiction or (ii) with respect to any information provided by Seller, the Company or any Company Subsidiary in connection with satisfying the conditions set forth in paragraph 7 of Exhibit D of the Debt Commitment Letter). Notwithstanding anything contained herein or otherwise, the parties hereby acknowledge and agree that Purchaser shall not be required to make any payment under this Section 7.10(c) prior to the earlier to occur of the Closing or the termination of this Agreement.
(d) In the event the Closing occurs after November 15, 2017 (as a result of a material breach by Purchaser of its covenants under this Agreement, or from fraud on as a result of delay by the part Lenders that constitutes a breach by the Lenders or is related to a breach by Purchaser of its covenants under this Agreement), Purchaser shall, promptly upon request by Seller following Closing, reimburse Seller, in an aggregate amount not to exceed $5 million, for any amendment, consent, or waiver fee that Seller is required to pay the Companylenders under the Credit Agreement, dated as of January 19, 2017, among Seller, the lenders party thereto, and Xxxxxxx Xxxxx Bank USA, as administrative agent (as amended by the First Amendment and Limited Waiver to Credit Agreement dated July 19, 2017, the “Seller Credit Agreement”) as consideration for such lenders’ agreement to extend the Waiver Termination Date (as defined in the Seller Credit Agreement) thereunder; provided, that, in no event shall the reimbursement pursuant to this Section 7.10(d) be payable in the event that Closing fails to occur, or is delayed as a result of delay in obtaining regulatory approvals under the HSR Act or any other Antitrust Law.
Appears in 1 contract
Samples: Share Purchase Agreement (Synchronoss Technologies Inc)
Financing Cooperation. (a) Subject Prior to Section 6.16(b), prior to Closing or termination of this Agreementthe Closing, the Company shallshall provide, and shall cause the Company Subsidiary to provide, and shall use its Subsidiaries and their respective Representatives to, use reasonable best efforts to reasonably cooperate with cause its Representatives to provide, on a timely basis, all reasonable cooperation requested by Parent and reasonably assist Parent, at the Parent’s request, sole cost and expense, that is customary in connection with arranging, obtaining and syndicating any Financing and causing the conditions in arrangement of the Financing Documents and or any commitment letters entered into Alternate Financing to be incurred in connection with the Transactions (provided that such Financing to be satisfiedrequested cooperation does not unreasonably interfere with the ongoing operations of the Company), including using reasonable best efforts in to (i) assisting withfacilitate the provision of a credit agreement, and furnishing information for the purposes ofguarantees, the preparation pledges of customary prospectuses (including any pro forma financial information and any information required under Article 18(2) of Commission Delegated Regulation (EU) 2019/980), offering documents, syndication documents and materials, including bank information memoranda and private placement memoranda, lender and investor presentations, rating agency materials and presentations collateral and other customary marketing materials documents in connection with the Financing (in each case, effective as of the Closing), (ii) provide financial and other pertinent information regarding the Company and the Company Subsidiary as may be reasonably requested in writing by Parent in order to consummate the Financing, in each case indentifying any information that constitutes material non-public information, (iii) provide information with respect to the properties and assets of the Company and the Company Subsidiary as may be reasonably requested by Parent, (iv) participate in a reasonable number of informational and other meetings in connection with the Financing, (v) assist Parent and its financing sources in the preparation of all agreements (including review of schedules for completeness), offering documents, an offering memorandum and other marketing materials for the Financing or any such documents and materialsAlternate Financing, collectively, the “Marketing Documents”) (it being understood and agreed that information and documents provided by the Marketing Documents shall include Company may be delivered to agents and lenders under the Financing Letters and their representatives (or otherwise be subject to) any to customary exculpation language, as the case may be, with respect arrangements for confidentiality that are acceptable to the Company, its Affiliates and their respective Representatives), (ii) furnishing to the Parent as promptly as reasonably practicable financial statements and operational information (including consolidated financial statements for interim periods up until the Closing Date) that can be prepared without undue burden with respect to the Company and its Subsidiary as is reasonably requested by Parent (the “Required Information”), (iii) assisting in the preparation of schedules to collateral agreements by providing information of the Company Entities required to be made available on such schedules for purposes of the arrangement or consummation of the Financing, (iv) subject to any contractual agreement in effect, facilitating the pledging of collateral for the Financing, which shall not be required to be delivered or effective until at or promptly following the Effective Time, (v) subject to any contractual agreement in effect, obtaining the Payoff Letter, and the related lien releases, and instruments of termination or discharge, as applicable, required pursuant to Section 6.12, in each case which shall provide that, if sufficient funds are received by the financing sources under the Credit Agreement in order to pay off in full all obligations (other than the Excluded Obligations) in connection therewith or secured thereby, such release, termination and/or discharge shall be effective, and (vi) furnishing Parent as promptly as reasonably practical (and at least three (3) business days prior to the Closing Date) with all documentation and other information related to the Company and its Subsidiary required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, that has been reasonably requested in writing by Parent or its Financing Sources at least ten (10) business days prior to the Closing Date. The Company hereby consents consenting to the use of its the Company’s and its the Company Subsidiary’s logos in connection with the Financing so long as (provided that such logos are used solely (i) in a manner that is not intended to or that is not reasonably likely to harm or disparage the Company or its the Company Subsidiary or the reputation or goodwill of the Company or its Subsidiary the Company Subsidiary) and (iivi) solely in connection with a description using commercially reasonable efforts to ensure that the syndication of the Financing benefits materially from the existing lending relationships of the Company. No certificate, its business document or instrument referred to above shall be effective until the Closing Date, and products or the Merger.
(b) Notwithstanding the requirements of Section 6.16(a) or anything in this Agreement to the contrary, (i) neither the Company nor any of its Affiliates or their respective Representatives shall not be required to enter into, approve or perform (or commit to enter into, approve or perform) any certificate, document, agreement, or instrument, in each case which will be effective prior to the Effective Time, (ii) nothing herein shall require cooperation contemplated thereby to the extent it would interfere unreasonably with the business or operations of the Company or any of its Affiliates or their respective Affiliates, (iii) none of the Company nor any of its Affiliates or their respective Representatives, will be required to (1) pay or commit to pay any commitment or other fee, (2) reimburse or incur any costs or expenses similar fee or incur any other liability (including any guarantee, indemnity or pledge) obligation in connection with the Financing or the Marketing Documents prior to the Effective Time, (3) provide any financial data other than the Required Information, or (4) provide any legal opinion or reliance letters or any certificate (in the case of the Company or its Subsidiary that would be required to be delivered prior to the Effective Time), comfort letter or opinion of any of its Representatives, (iv) nothing herein will involve any binding commitment by the Company, any of its Affiliates or any of their respective Representatives which commitment is not conditioned on the Effective Time and does not terminate without liability to the Company, its Affiliates and their respective Representatives upon the termination of this Agreement, and (v) nothing herein will require the Company, any of its Affiliates or any of their respective Representatives to provide any information or take any action, the disclosure or taking of which would violate applicable Legal Requirements, any fiduciary duty, any Contract or obligation of confidentiality owing to a third party, or jeopardize the protection of the attorney-client privilege (or similar protections) held by the Company or any of its Affiliates; provided that, if the Company does not provide or cause its Representatives to provide such access or such information in reliance on the foregoing, then the Company shall (1) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1) any Representative of the Company or its Subsidiary to deliver any certificate or opinion or take any other action under this Section 6.16 that could reasonably be expected to result in personal liability to such Representative; (2) the Board of Directors (or any committee or subcommittee thereof) or the board of directors, managers, managing member or any similar controlling body of any Subsidiary of the Company to approve (or otherwise take any corporate or similar action with respect to) any financing (including the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) the Company and its Subsidiary to take any action that would conflict with or violate its organizational or governance documents or any applicable Legal Requirements, or result in the contravention of, or that could reasonably be expected to result in a violation of breach of, or default under, any agreement to which the Company or its Subsidiary is a partyClosing Date.
(cb) Subject to any applicable Legal Requirements, all non-public or other confidential information provided by the Company, its Subsidiary or any of their respective Representatives pursuant to this Agreement will be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Purchaser will be permitted to disclose such information to any Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties to the Financing and to any underwriters, initial purchasers or placement agents in connection with the Financing (and, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; or (ii) are subject to other confidentiality undertakings reasonably satisfactory to the Company and of which the Company is a beneficiary.
(d) If the Closing does not occur, shall promptly upon request by the Company, Parent will reimburse the Company for any documented and all reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred by the Company or its Subsidiary in connection with the cooperation of the Company and its Subsidiary contemplated by this Section 6.16 (it being understood 8.10 and agreed that the reimbursement set forth in this Section 6.16(d) shall not apply to any fees, costs, and expenses incurred by, or on behalf of, the Company, its Subsidiary or any of its Representatives in connection with its ordinary course financial reporting requirements or in the provision of data that, in each case, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding this Section 6.16).
(e) The Parent shall indemnify, defend indemnify and hold harmless the Company Entities and their its respective Representatives directors, officers, employees and representatives from and against any and all losses, damages, claims, interest, awards, judgments, penalties, costs and or expenses suffered or incurred by any of them in connection with the Financing (including any action taken in accordance with this Section 6.16) and costs and expenses incurred in defending against the foregoing, except to the extent such losses, damages, claims, costs or expenses arise from the willful breach of this Agreement by the Company, as finally determined by a court of competent jurisdiction, or from fraud on the part arrangement of the CompanyFinancing and any information used in connection therewith.
Appears in 1 contract
Samples: Merger Agreement (Ats Corp)
Financing Cooperation. (a) Subject Prior to Section 6.16(b)the Closing, prior to Closing or termination of this Agreement, the Company Seller shall, and shall cause its Subsidiaries and their respective Representatives the Sold Companies to, use reasonable best efforts to reasonably cooperate with and reasonably assist Parentprovide to Buyer, at the ParentBuyer’s request, sole cost and expense, in connection with arranging, obtaining and syndicating any Financing and causing the conditions in the Financing Documents and any commitment letters entered into in connection with such Financing to be satisfied, including using reasonable best efforts in (i) assisting with, and furnishing information for the purposes of, the preparation of customary prospectuses (including any pro forma financial information and any information required under Article 18(2) of Commission Delegated Regulation (EU) 2019/980), offering documents, syndication documents and materials, including bank information memoranda and private placement memoranda, lender and investor presentations, rating agency materials and presentations and other customary marketing materials cooperation reasonably requested by Buyer that is necessary in connection with the Financing Debt Financing, including (all such documents i) participation by senior members of management of the Sold Companies (together with their counterparts at Buyer) in meetings, due diligence sessions and materials, collectively, the “Marketing Documents”) (it being understood and agreed that the Marketing Documents shall include (or otherwise be subject to) any customary exculpation language, as the case may be, sessions with respect to the Company, its Affiliates and their respective Representatives)rating agencies, (ii) furnishing to assisting Buyer in the Parent as promptly as reasonably practicable financial statements preparation of a confidential information memorandum and operational information (including consolidated financial statements marketing materials for interim periods up until the Closing Date) that can be prepared without undue burden with respect to the Company and its Subsidiary as is reasonably requested by Parent (the “Required Information”)Debt Financing, (iii) assisting preparing and furnishing Buyer as promptly as practicable (and in the preparation of schedules to collateral agreements by providing information any event within thirty (30) days of the Company Entities required to be made available on such schedules for purposes end of each calendar month and within forty-five (45) days of the arrangement or consummation end of each calendar quarter) with the unaudited consolidated balance sheet of the FinancingSold Companies as of the end of each calendar month and each calendar quarter prior to the Closing and the related statements of income, changes in equity and cash flows for such periods, (iv) subject to any contractual agreement in effect, reasonably facilitating the pledging of collateral for (provided that (A) none of the Financingdocuments or certificates shall be executed or delivered except in connection with the Closing, which (B) the effectiveness thereof shall not be required to conditioned upon, or become operative after, the occurrence of the Closing and (C) no liability shall be delivered imposed on the Seller or effective until at any Sold Company or promptly following the Effective Timeany officers or employees involved), and (v) subject providing to any contractual agreement in effect, obtaining the Payoff Letter, and the related lien releases, and instruments of termination or discharge, as applicable, required pursuant to Section 6.12, in each case which shall provide that, if sufficient funds are received by the Buyer’s financing sources under the Credit Agreement in order to pay off in full all obligations (other than the Excluded Obligations) in connection therewith or secured thereby, such release, termination and/or discharge shall be effective, and (vi) furnishing Parent as promptly as reasonably practical (and at least three (3) business days prior to the Closing Date) with all documentation and other information related to the Company and its Subsidiary required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act. Notwithstanding the foregoing, that has been reasonably (1) such requested in writing by Parent or its Financing Sources at least ten (10) business days prior to the Closing Date. The Company hereby consents to the use of its and its Subsidiary’s logos in connection cooperation shall not unreasonably interfere with the Financing so long as such logos are used solely (i) in a manner that is not intended to or that is not reasonably likely to harm or disparage the Company or its Subsidiary or the reputation or goodwill of the Company or its Subsidiary and (ii) solely in connection with a description of the Company, its ongoing business and products or operations of Seller, the Merger.
(b) Notwithstanding the requirements Sold Companies and any other Subsidiaries of Section 6.16(a) or anything in this Agreement to the contrarySeller, (i2) neither none of Seller, the Company nor Sold Companies and any other Subsidiaries of its Affiliates or their respective Representatives Seller shall be required to enter into, approve or perform (or commit to enter into, approve or perform) any certificate, document, agreement, or instrument, in each case which will be effective prior to the Effective Time, (ii) nothing herein shall require cooperation contemplated thereby to the extent it would interfere unreasonably with the business or operations of the Company or any of its Affiliates or their respective Affiliates, (iii) none of the Company nor any of its Affiliates or their respective Representatives, will be required to (1) pay or commit to pay any commitment or other fee, (2) reimburse or incur any costs or expenses fee or incur any other liability (including any guarantee, indemnity or pledge) obligation in connection with the financings contemplated by the Debt Financing or the Marketing Documents prior to the Effective TimeCommitment, (3) provide none of Seller, the Sold Companies and any financial data other than Subsidiaries of Seller or their respective officers, directors or employees shall be required to execute or enter into or perform any agreement with respect to the Required Informationfinancing contemplated by the Debt Financing Commitment, or (4) provide any legal opinion or reliance letters or any certificate (except in the case of the Company Sold Companies, for agreements that are contingent upon the Closing or its Subsidiary that are effective only after the Closing, (4) such assistance shall not include any actions that Seller reasonably believes would be required cause any representation, warranty, covenant or other obligation in this Agreement to be delivered breached or any condition to closing hereunder to fail to be satisfied, (5) 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 Effective Time)Closing for which Seller has not received prior reimbursement or is not otherwise indemnified by Buyer, comfort letter and (6) cause any director, officer or opinion employee of the Seller or any Subsidiary of its Representatives, Seller to incur any personal liability.
(ivb) nothing herein will involve any binding commitment by the CompanyNeither Seller, any of its Affiliates or Subsidiaries nor any of their respective Representatives which commitment is not conditioned on the Effective Time and does not terminate without liability to the Companyofficers, its Affiliates and their respective Representatives upon the termination of this Agreement, and (v) nothing herein will require the Company, any of its Affiliates or any of their respective Representatives to provide any information or take any action, the disclosure or taking of which would violate applicable Legal Requirements, any fiduciary duty, any Contract or obligation of confidentiality owing to a third party, or jeopardize the protection of the attorney-client privilege (or similar protections) held by the Company or any of its Affiliates; provided that, if the Company does not provide or cause its Representatives to provide such access or such information in reliance on the foregoing, then the Company shall (1) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1) any Representative of the Company or its Subsidiary to deliver any certificate or opinion or take any other action under this Section 6.16 that could reasonably be expected to result in personal liability to such Representative; (2) the Board of Directors (or any committee or subcommittee thereof) or the board of directors, managersemployees, managing member or any similar controlling body of any Subsidiary of the Company to approve (or otherwise take any corporate or similar action with respect to) any financing (including the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) the Company accountants, consultants, legal counsel, agents, investment bankers and its Subsidiary other representatives shall be required to take any action that would (i) subject such Person to actual or potential liability, to bear any cost or expense or to pay any commitment or other similar fee or make any other payment or incur any other liability or provide or agree to provide any indemnity in connection with the Debt Financing or their performance of their respective obligations under this Section 5.32 and any information utilized in connection therewith or (ii) conflict with or violate its any Laws or such Person’s organizational or governance documents or any applicable Legal Requirements, or result in the contravention of, or that could reasonably be expected to result in a violation of breach of, or default under, any agreement to which the Company or its Subsidiary is a party.
(c) Subject to any applicable Legal Requirements, all non-public or other confidential information provided by the Company, its Subsidiary or any of their respective Representatives pursuant to this Agreement will be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Purchaser will be permitted to disclose such information to any Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties to the Financing and to any underwriters, initial purchasers or placement agents in connection with the Financing (and, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; or (ii) are subject to other confidentiality undertakings reasonably satisfactory to the Company and of which the Company is a beneficiary.
(d) If the Closing does not occur, promptly upon request by the Company, Parent will reimburse the Company for any documented and reasonable out-of-pocket costs and expenses (including attorneys’ fees) incurred by the Company or its Subsidiary in connection with the cooperation of the Company and its Subsidiary contemplated by this Section 6.16 (it being understood and agreed that the reimbursement set forth in this Section 6.16(d) documents. Buyer shall not apply to any fees, costs, and expenses incurred by, or on behalf of, the Company, its Subsidiary or any of its Representatives in connection with its ordinary course financial reporting requirements or in the provision of data that, in each case, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding this Section 6.16).
(e) The Parent shall indemnify, defend indemnify and hold harmless the Company Entities Seller, its Subsidiaries 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, claims, interest, awards, judgments, penalties, costs and expenses Losses suffered or incurred by any of them in connection with the arrangement of the Debt Financing and the performance of their respective obligations under this Section 5.32 (including any action taken in accordance with this Section 6.16) and 5.32). Buyer shall, promptly upon request by Seller, reimburse Seller for all reasonable costs and expenses incurred by Seller or its Subsidiaries in defending against the foregoingconnection with this Section 5.32 (including those of its accountants, except to the extent such lossesconsultants, damageslegal counsel, claimsagents, costs or expenses arise from the willful breach of this Agreement by the Company, as finally determined by a court of competent jurisdiction, or from fraud on the part of the Companyinvestment bankers and other representatives).
Appears in 1 contract
Financing Cooperation. (a) Subject Prior to Section 6.16(b), prior to Closing or termination of this Agreementthe Closing, the Company shallshall use its reasonable best efforts to, and shall cause its Subsidiaries to use their reasonable best efforts to, and shall use its reasonable efforts to cause its and their respective Representatives to, use provide, at the expense of Parent, all cooperation reasonably requested by Parent necessary and customary for the arrangement of the Debt Financing (provided, that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company or any of its Subsidiaries), including by (i) participating in a reasonable number of meetings (including meetings with prospective lenders), presentations, road shows, due diligence sessions and sessions with rating agencies, at reasonable times and with reasonable advance notice, (ii) executing and delivering Definitive Agreements and other certificates (including a certificate of the chief financial officer of or person performing similar functions for the Company with respect to solvency matters substantially in the form attached to the Debt Commitment Letter) as may be reasonably requested by Parent, and to the extent required by the Debt Financing, using reasonable best efforts to facilitate the pledging of, and perfection of security interests in, collateral, in each such case, effective no earlier than the Effective Time, (iii) furnishing Parent and the Lenders as promptly as reasonably cooperate practicable the financial statements of the Company and its consolidated Subsidiaries required by paragraph 4 in Exhibit D to the Debt Commitment Letter (such financial statements, the “Required Financial Information”) and, following the delivery of a request therefor to the Company by Parent (which notice shall state with specificity the information requested), such financial and reasonably assist Parent, other information regarding the Company as is readily available to the Company at the Parent’s request, sole cost such time and expense, is customarily required in connection with arrangingthe execution of financings of a type similar to the Debt Financing, obtaining and syndicating any Financing and causing the conditions in the Financing Documents and any commitment letters entered into in connection with such Financing to be satisfied(iv) if requested by Parent, including using reasonable best efforts to assist Parent in connection with Parent’s preparation of customary pro forma financial statements as required by paragraph 5 in Exhibit D to the Debt Commitment Letter; provided, that (ix) assisting with, and furnishing information Parent shall be responsible for the purposes ofpreparation of such pro forma financial statements and any pro forma adjustments giving effect to the Merger and the other transactions contemplated herein and (y) the Company’s assistance shall relate solely to the financial information and data derived from the Company’s historical books and records, (v) in each case following Parent’s reasonable request, using reasonable best efforts to assist Parent and Merger Sub in the preparation of customary prospectuses (A) confidential information memoranda (including any pro forma financial a version that does not include material non-public information and any information required under Article 18(2executing and delivering one or more customary authorization and representation letters contemplated by the Debt Commitment Letter or otherwise that are customary in the Debt Financing) of Commission Delegated Regulation (EU) 2019/980), offering documents, syndication documents and materials, including bank information memoranda and private placement memoranda, lender and investor presentations, rating agency materials and presentations and other customary marketing materials required in connection with the Financing (all such documents and materials, collectively, the “Marketing Documents”) (it being understood and agreed that the Marketing Documents shall include (or otherwise be subject to) any customary exculpation language, as the case may be, with respect financings similar to the Company, its Affiliates and their respective Representatives)Debt Financing, (iiB) furnishing materials for rating agency presentations and (C) definitive documentation for the Debt Financing, (vi) following Parent’s reasonable request, using reasonable best efforts to cause directors and officers who will continue to hold such offices and positions from and after the Parent as promptly as reasonably practicable financial statements and operational information (including consolidated financial statements for interim periods up until the Closing Date) that can be prepared without undue burden with respect Effective Time to execute resolutions or consents of the Company and its Subsidiary Subsidiaries that do not become effective until the Effective Time with respect to entering into the definitive documentation for the Debt Financing and otherwise as is reasonably requested by Parent (the “Required Information”), (iii) assisting in the preparation of schedules necessary to collateral agreements by providing information of the Company Entities required to be made available on such schedules for purposes of the arrangement or authorize consummation of the Financing, (iv) subject to any contractual agreement in effect, facilitating the pledging of collateral for the Financing, which shall not be required to be delivered or effective until at or promptly following the Effective Time, (v) subject to any contractual agreement in effect, obtaining the Payoff Letter, and the related lien releases, and instruments of termination or discharge, as applicable, required pursuant to Section 6.12, in each case which shall provide that, if sufficient funds are received by the financing sources under the Credit Agreement in order to pay off in full all obligations (other than the Excluded Obligations) in connection therewith or secured thereby, such release, termination and/or discharge shall be effective, Debt Financing and (vivii) furnishing Parent as promptly as reasonably practical (and if requested by Parent, provide, at least three (3) business days Business Days prior to the Closing Date) with , all documentation and other information related relating to the Company and its Subsidiary Subsidiaries as is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT ActAct and including, that has been reasonably if the Company or any of its subsidiaries qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certificate (each as defined in the Debt Commitment Letter), to the extent requested by Parent in writing by Parent or its Financing Sources at least ten nine (109) business days Business Days prior to the Closing Date. Notwithstanding the foregoing, neither the Company nor any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 5.13 that (A) would require the Company, its Subsidiaries or any Persons who are officers or directors of the Company or its Subsidiaries to pass resolutions or consents to approve or authorize the execution of the Debt Financing that is effective prior to the Effective Time or execute or deliver any certificate, document, instrument or agreement (other than the authorization and representation letters referred to in clause (v)(A) above) or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Effective Time, (B) cause any representation or warranty in this Agreement to be breached by the Company or any of its Subsidiaries, (C) require the Company or any of its Subsidiaries to pay any commitment or other similar fee or incur any other expense, liability or obligation (other than those set forth in this Section 5.13) in connection with the Debt Financing prior to the Closing or have any obligation of the Company or any of its Subsidiaries under any agreement, certificate, document or instrument be effective until the Closing, (D) cause any director, officer or employee or stockholder of the Company or any of its Subsidiaries to incur any personal liability, (E) conflict with the organizational documents of the Company or its Subsidiaries or any Laws, (F) reasonably be expected to result (with or without notice, lapse of time, or both) in a material violation or breach of, or a default under, any Contract to which the Company or any of its Subsidiaries is a party, (G) provide access to or disclose information that the Company or any of its Subsidiaries determines would jeopardize any attorney-client privilege of the Company or any of its Subsidiaries, (H) prepare any financial statements or information that (x) are not available to it and prepared in the ordinary course of its financial reporting practice and (y) would not otherwise be available to it or capable of being prepared by it without undue burden or other than with the use of its commercially reasonable efforts or (I) require the Company or any of its Subsidiaries to enter into any instrument or agreement (other than the authorization and representation letters referred to in clause (v)(A) above) that is effective prior to the Effective Time or that would be effective if the Closing does not occur. Nothing contained in this Section 5.13 or otherwise shall require the Company or any of its Subsidiaries, prior to the Closing, to be an issuer or other obligor with respect to the Debt Financing. Parent shall, promptly upon request by the Company, reimburse the Company following termination of this Agreement for all reasonable out-of-pocket costs incurred by the Company or its Subsidiaries or their respective Representatives in connection with the cooperation contemplated by this Section 5.13 and shall indemnify and hold harmless the Company and its Subsidiaries and their respective Representatives from and against any and all losses suffered or incurred by them in connection with the arrangement of the Debt Financing, any action taken by them at the request of Parent pursuant to this Section 5.13 and any information used in connection therewith (other than information provided in writing by the Company or its Subsidiaries specifically in connection with its obligations pursuant to this Section 5.13).
(b) For the avoidance of doubt, the parties hereto acknowledge and agree that the provisions contained in this Section 5.13, represent the sole obligation of the Company, its Subsidiaries and their respective Representatives with respect to cooperation in connection with the arrangement of any financing (including the Financing) to be obtained by Parent or Merger Sub with respect to the transactions contemplated by this Agreement and no other provision of this Agreement (including the Exhibits and Schedules hereto) shall be deemed to expand or modify such obligations. In no event shall the receipt or availability of any funds or financing (including, for the avoidance of doubt, the Financing) by Parent, Merger Sub or any of their respective Affiliates or any other financing or other transactions be a condition to any of Parent’s or Merger Sub’s obligations under this Agreement.
(c) All non-public or otherwise confidential information regarding the Company or its Subsidiaries obtained by Parent or its Representatives pursuant to this Section 5.13 shall be kept confidential and otherwise treated in accordance with the Confidentiality Agreement or other confidentiality obligations that are substantially similar to those contained in the Confidentiality Agreement (which, with respect to the Lenders, shall be satisfied by the confidentiality provisions applicable thereto under the Debt Commitment Letter if made for the benefit of the Company). The Company hereby consents to the use of its and its Subsidiary’s the Company Subsidiaries’ logos in connection with the Financing Debt Financing, so long as the Company has a reasonable opportunity to preview such use of logos and such logos (i) are used solely (i) in a manner that is not intended to or that is not reasonably likely to harm or disparage the Company or its Subsidiary Subsidiaries or the reputation or goodwill of the Company or its Subsidiary and Subsidiaries; (ii) are used solely in connection with a description of the Company, its business and products or the Merger.
Merger (b) Notwithstanding the requirements of Section 6.16(a) or anything including in this Agreement connection with any marketing materials related to the contrary, (i) neither the Company nor any of its Affiliates or their respective Representatives shall be required to enter into, approve or perform (or commit to enter into, approve or perform) any certificate, document, agreement, or instrument, in each case which will be effective prior to the Effective Time, (ii) nothing herein shall require cooperation contemplated thereby to the extent it would interfere unreasonably with the business or operations of the Company or any of its Affiliates or their respective Affiliates, Debt Financing); and (iii) none of the Company nor any of its Affiliates or their respective Representatives, will be required to (1) pay or commit to pay any commitment or other fee, (2) reimburse or incur any costs or expenses or incur any other liability (including any guarantee, indemnity or pledge) are displayed and presented in connection a manner consistent with the Financing or the Marketing Documents prior to the Effective Time, (3) provide any financial data other than the Required Information, or (4) provide any legal opinion or reliance letters or any certificate (in the case of the Company or its Subsidiary that would be required to be delivered prior to the Effective Time), comfort letter or opinion of any of its Representatives, (iv) nothing herein will involve any binding commitment by the Company, any of its Affiliates or any of their respective Representatives which commitment is not conditioned on the Effective Time and does not terminate without liability to the Company, its Affiliates and their respective Representatives upon the termination of this Agreement, and (v) nothing herein will require the Company, any of its Affiliates or any of their respective Representatives to provide any information or take any action, the disclosure or taking of which would violate applicable Legal Requirements, any fiduciary duty, any Contract or obligation of confidentiality owing to a third party, or jeopardize the protection of the attorney-client privilege (or similar protections) held by the Company or any of its Affiliates; provided that, if the Company does not provide or cause its Representatives to provide such access or such information in reliance on the foregoing, then the Company shall (1) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1) any Representative of the Company or its Subsidiary to deliver any certificate or opinion or take any other action under this Section 6.16 that could reasonably be expected to result in personal liability to such Representative; (2) the Board of Directors (or any committee or subcommittee thereof) or the board of directors, managers, managing member or any similar controlling body of any Subsidiary of the Company to approve (or otherwise take any corporate or similar action with respect to) any financing (including the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) the Company and its Subsidiary to take any action that would conflict with or violate its organizational or governance documents or any applicable Legal Requirements, or result in the contravention of, or that could reasonably be expected to result in a violation of breach of, or default under, any agreement to which the Company or its Subsidiary is a party’s past practices.
(c) Subject to any applicable Legal Requirements, all non-public or other confidential information provided by the Company, its Subsidiary or any of their respective Representatives pursuant to this Agreement will be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Purchaser will be permitted to disclose such information to any Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties to the Financing and to any underwriters, initial purchasers or placement agents in connection with the Financing (and, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; or (ii) are subject to other confidentiality undertakings reasonably satisfactory to the Company and of which the Company is a beneficiary.
(d) If the Closing does not occur, promptly upon request by the Company, Parent will reimburse the Company for any documented and reasonable out-of-pocket costs and expenses (including attorneys’ fees) incurred by the Company or its Subsidiary in connection with the cooperation of the Company and its Subsidiary contemplated by this Section 6.16 (it being understood and agreed that the reimbursement set forth in this Section 6.16(d) shall not apply to any fees, costs, and expenses incurred by, or on behalf of, the Company, its Subsidiary or any of its Representatives in connection with its ordinary course financial reporting requirements or in the provision of data that, in each case, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding this Section 6.16).
(e) The Parent shall indemnify, defend and hold harmless the Company Entities and their respective Representatives from and against any and all losses, damages, claims, interest, awards, judgments, penalties, costs and expenses suffered or incurred by any of them in connection with the Financing (including any action taken in accordance with this Section 6.16) and costs and expenses incurred in defending against the foregoing, except to the extent such losses, damages, claims, costs or expenses arise from the willful breach of this Agreement by the Company, as finally determined by a court of competent jurisdiction, or from fraud on the part of the Company.
Appears in 1 contract
Financing Cooperation. (a) Subject to Section 6.16(b), prior to Closing or termination of this Agreement, the Company shallSeller shall use its reasonable best efforts, and shall cause its Subsidiaries each of the Sale Entities to use their reasonable best efforts, and each of them shall use their respective Representatives to, use reasonable best efforts to cause their respective representatives to use their reasonable best efforts, to provide customary cooperation, to the extent reasonably cooperate with and reasonably assist Parent, at the Parent’s request, sole cost and expenserequested by Buyer in writing, in connection with arrangingthe offering, obtaining and syndicating arrangement, syndication, consummation, issuance or sale of any Financing and causing or Alternative Financing obtained in accordance with this Section 5.13 (provided that such requested cooperation does not unreasonably interfere with the conditions in ongoing operations of Seller, the Financing Documents and Sale Entities or any commitment letters entered into in connection with such Financing of its Affiliates), including, to be satisfiedthe extent so requested, including using reasonable best efforts in to: (i) assisting with, furnish promptly to Buyer the Financing Information and furnishing information for the purposes of, the preparation of customary prospectuses (including any pro forma such other financial information and any information required under Article 18(2) of Commission Delegated Regulation (EU) 2019/980), offering documents, syndication documents and materials, including bank information memoranda and private placement memoranda, lender and investor presentations, rating agency materials and presentations and other customary marketing materials regarding the Sale Entities as is reasonably requested by Buyer in connection with the Financing and reasonably available to Seller; (all such documents ii) provide reasonable and materialscustomary assistance to Buyer and the Financing Parties in the preparation of, collectively, the “Marketing Documents”) (it being understood and agreed that the Marketing Documents shall include (or otherwise be subject to) any customary exculpation language, as the case may be, provide information with respect to the CompanySale Entities customarily included in, (A) customary offering documents, offering memoranda, offering circulars, private placement memoranda, registration statements, prospectuses, syndication documents and other syndication materials, including information memoranda,
(b) The actions contemplated in this Section 5.13 with respect to the Financing do not and shall not (i) require such cooperation from Seller or the Sale Entities to the extent it would require Seller, the Sale Entities, any of its Affiliates and or their respective Subsidiaries, or any of its or their respective directors, officers, employees or stockholders (“Representatives”), to incur any monetary liability, pay any fees, reimburse any expenses, or provide any indemnity, in each case, prior to the Closing that is not contingent on the Closing or for which Buyer is not obligated to reimburse or indemnify Seller, the Sale Entities or their Subsidiaries under this Agreement, or take any actions that would cause Seller, the Sale Entities or any of their Subsidiaries to breach this Agreement or become unable to satisfy a condition to the Closing, (ii) furnishing to involve any binding commitment or agreement by Seller, the Parent as promptly as reasonably practicable financial statements and operational information (including consolidated financial statements for interim periods up until the Closing Date) that can be prepared without undue burden with respect to the Company and Sale Entities, any of their Subsidiaries, or any of its Subsidiary as is reasonably requested by Parent (the “Required Information”), (iii) assisting in the preparation of schedules to collateral agreements by providing information of the Company Entities required to be made available on such schedules for purposes of the arrangement or consummation of the Financing, (iv) subject to any contractual agreement in effect, facilitating the pledging of collateral for the Financing, which shall not be required to be delivered or effective until at or promptly following the Effective Time, (v) subject to any contractual agreement in effect, obtaining the Payoff Letter, and the related lien releases, and instruments of termination or discharge, as applicable, required pursuant to Section 6.12, in each case which shall provide that, if sufficient funds are received by the financing sources under the Credit Agreement in order to pay off in full all obligations their Representatives (other than the Excluded Obligations) in connection therewith customary authorization and representation letters and other than other actions by officers or secured thereby, such release, termination and/or discharge shall be effective, and (vi) furnishing Parent as promptly as reasonably practical (and at least three (3) business days prior to directors continuing employment with Buyer following the Closing Date) with all documentation and that, in the case of such other information related to the Company and its Subsidiary required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulationsactions, including the PATRIOT Act, that has been reasonably requested in writing by Parent or its Financing Sources at least ten (10) business days prior to are contingent upon the Closing Date. The Company hereby consents to the use of its and its Subsidiary’s logos in connection with the Financing so long as such logos are used solely (i) in a manner that is would not intended to or that is not reasonably likely to harm or disparage the Company or its Subsidiary or the reputation or goodwill of the Company or its Subsidiary and (ii) solely in connection with a description of the Company, its business and products or the Merger.
(b) Notwithstanding the requirements of Section 6.16(a) or anything in this Agreement to the contrary, (i) neither the Company nor any of its Affiliates or their respective Representatives shall be required to enter into, approve or perform (or commit to enter into, approve or perform) any certificate, document, agreement, or instrument, in each case which will be effective prior to the Effective Time, (iiClosing) nothing herein shall require cooperation contemplated thereby to the extent it would interfere unreasonably with the business or operations of the Company or any of its Affiliates or their respective Affiliates, (iii) none of the Company nor any of its Affiliates or their respective Representatives, will be required to (1) pay or commit to pay any which commitment or other fee, (2) reimburse or incur any costs or expenses or incur any other liability (including any guarantee, indemnity or pledge) in connection with the Financing or the Marketing Documents prior to the Effective Time, (3) provide any financial data other than the Required Information, or (4) provide any legal opinion or reliance letters or any certificate (in the case of the Company or its Subsidiary that would be required to be delivered prior to the Effective Time), comfort letter or opinion of any of its Representatives, (iv) nothing herein will involve any binding commitment by the Company, any of its Affiliates or any of their respective Representatives which commitment agreement is not conditioned on the Effective Time Closing and does not terminate without liability to Seller, the CompanySale Entities, any of their Subsidiaries, or any of its Affiliates and or their respective Representatives upon the termination of this Agreement, (iii) require any director, manager or officer to execute or deliver any document or instrument: (A) other than in such Person’s capacity as a director, manager or officer and solely on behalf of the applicable Sale Entity (and not in any personal capacity), (B) if such Person reasonably believes in good faith that any representation, warranty or certification contained therein is not true or (C) if such Person reasonably believes in good faith that execution or delivery of such document or instrument could result in personal liability, (iv) require such cooperation to the extent it would unreasonably interfere with the operations of the Sale Entities or create a material risk of damage or destruction to any material property or assets of the Sale Entities or any of their Subsidiaries, (v) nothing herein will require Seller. the CompanySale Entities, any of its Affiliates their Subsidiaries, or any of its or their Representatives to be the issuer of any securities or issue any offering document prior to Closing, (vi) require Seller, the Sale Entities, any of their Subsidiaries, or any of its or their respective Representatives to provide any information the disclosure of which is prohibited by applicable law or take any actionContract, (vii) require Seller, the disclosure or taking of which would violate applicable Legal RequirementsSale Entities, any fiduciary dutyof their Subsidiaries, any Contract or obligation of confidentiality owing to a third party, or jeopardize the protection of the attorney-client privilege (or similar protections) held by the Company or any of its Affiliates; provided that, if the Company does not provide or cause its their respective Representatives to provide take any action that will conflict with or violate the Organizational Documents of such access person or such information any
(c) Buyer shall, promptly on request by Seller, reimburse Seller for all reasonable and documented out-of-pocket costs incurred by Seller, the Sale Entities or their Affiliates (or their respective representatives) in reliance on connection with the foregoingcooperation required by Section 5.13(a) and shall indemnify and hold harmless Seller from and against any and all losses suffered or incurred by Seller, then the Company shall (1) provide a written notice to Parent stating that it is withholding such access Sale Entities or such information and (2) reasonably cooperate (their Affiliates in connection with the arrangement of the Financing, any action taken by them at the request of ParentBuyer or its representatives pursuant to this Section 5.13 and any information used in connection therewith.
(d) to provide The Parties acknowledge and agree that the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing provisions contained in this Section 6.16 will require (1) any Representative 5.13 represent the sole obligation of Seller. the Company or its Subsidiary to deliver any certificate or opinion or take any other action under this Section 6.16 that could reasonably be expected to result in personal liability to such Representative; (2) the Board of Directors (or any committee or subcommittee thereof) or the board of directorsSale Entities and their Subsidiaries, managers, managing member or any similar controlling body of any Subsidiary of the Company to approve (or otherwise take any corporate or similar action Affiliates and Representatives with respect to) to cooperation in connection with the arrangement of any financing (including the Financing) to be obtained by Buyer with respect to the Contemplated Transactions, and no other provision of this Agreement shall be deemed to expand or Contracts modify such obligations. In no event shall the receipt or availability of any funds or financing (including the Financing) by Buyer any Financing Document or commitment letter) related thereto; or (3) the Company and of its Subsidiary to take any action that would conflict with or violate its organizational or governance documents Affiliates or any applicable Legal Requirementsother financing or other transactions be a condition to any of Buyer’s obligations under this Agreement. Notwithstanding anything to the contrary in this Agreement, or result the Sale Entities’ breach of any of the covenants required to be performed by it under this Section 5.13 shall not be considered in determining the contravention ofsatisfaction of the condition set forth in Section 6.3, or that could reasonably be expected unless such breach is the primary cause of Buyer being unable to result in a violation obtain the proceeds of breach of, or default under, any agreement to which the Company or its Subsidiary is a partyFinancing at the Closing.
(ce) Subject to any applicable Legal Requirements, all All non-public or other otherwise confidential information provided by regarding the Company, its Subsidiary Sale Entities or any of their respective Representatives Affiliates obtained by Buyer or its representatives pursuant to this Agreement will Section 5.13 shall be kept confidential in accordance with the Confidentiality Agreement, except ; provided that Parent and Purchaser will Buyer shall be permitted to disclose such information to any (i) the Financing Sources or prospective equity or debt financing sources Parties subject to their confidentiality obligations under the Debt Commitment Letter and other financial institutions and investors that are or may become parties the Definitive Agreements, (ii) to potential Financing Parties to the Financing extent necessary and to any underwriters, initial purchasers or placement agents consistent with customary practices in connection with the Financing subject to customary confidentiality arrangements (andincluding through customary “click through” arrangements or customary provisions of the Definitive Agreements), in each caseand (iii) otherwise, to their respective counsel the extent necessary and auditors) so long as such Persons (i) agree to be bound by consistent with customary practices in connection with the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; or (ii) are Financing, subject to other customary confidentiality undertakings arrangements reasonably satisfactory to the Company and of which the Company is a beneficiary.
(d) If the Closing does not occur, promptly upon request by the Company, Parent will reimburse the Company for any documented and reasonable out-of-pocket costs and expenses (including attorneys’ fees) incurred by the Company or its Subsidiary in connection with the cooperation of the Company and its Subsidiary contemplated by this Section 6.16 (it being understood and agreed that the reimbursement set forth in this Section 6.16(d) shall not apply to any fees, costs, and expenses incurred by, or on behalf of, the Company, its Subsidiary or any of its Representatives in connection with its ordinary course financial reporting requirements or in the provision of data that, in each case, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding this Section 6.16).
(e) The Parent shall indemnify, defend and hold harmless the Company Entities and their respective Representatives from and against any and all losses, damages, claims, interest, awards, judgments, penalties, costs and expenses suffered or incurred by any of them in connection with the Financing (including any action taken in accordance with this Section 6.16) and costs and expenses incurred in defending against the foregoing, except to the extent such losses, damages, claims, costs or expenses arise from the willful breach of this Agreement by the Company, as finally determined by a court of competent jurisdiction, or from fraud on the part of the Company.Sale Entities. 66
Appears in 1 contract
Financing Cooperation. (a) Subject to Section 6.16(b), prior to Closing or termination of this Agreement, the The Company shall, and shall cause its Subsidiaries and their respective Representatives use commercially reasonable efforts to cause its representatives (including legal and accounting advisors) to, use provide reasonable best efforts to reasonably cooperate with and reasonably assist Parent, at the Parent’s request, sole cost and expense, in connection with arranging, obtaining and syndicating any Financing and causing the conditions in the Financing Documents and any commitment letters entered into in connection with such Financing to be satisfied, including using reasonable best efforts in (i) assisting with, and furnishing information for the purposes of, the preparation of customary prospectuses (including any pro forma financial information and any information required under Article 18(2) of Commission Delegated Regulation (EU) 2019/980), offering documents, syndication documents and materials, including bank information memoranda and private placement memoranda, lender and investor presentations, rating agency materials and presentations and other customary marketing materials cooperation in connection with the Financing as may be reasonably requested by the Parent including (i) providing to the Financing Sources all such documents and materials, collectively, the “Marketing Documents”) (it being understood and agreed that the Marketing Documents shall include (or otherwise be subject to) any customary exculpation language, as the case may be, material financing information in their possession with respect to the Company, its Affiliates including, but not limited to, information and their respective Representatives), projections prepared by the Company relating to the Company; (ii) furnishing making the Company's senior officers and other representatives reasonably available to the Parent as promptly as Financing Sources in connection with the Financing, to reasonably practicable financial statements participate in due diligence sessions and operational information (including consolidated financial statements for interim periods up until the Closing Date) that can be prepared without undue burden with respect to reasonably participate in presentations related to the Company and its Subsidiary as is reasonably requested by Parent (the “Required Information”), Financing; (iii) assisting in the preparation of schedules to collateral agreements by providing information of the Company Entities required to be made available on such schedules for purposes of the arrangement or consummation of the Financing, (iv) subject to any contractual agreement in effect, reasonably facilitating the pledging of collateral for (provided that no such pledge or security documents shall be effective until the FinancingClosing); and (iv) such other necessary actions reasonably requested by Parent in connection therewith; provided, that (y) any costs, fees and expenses attributable to any action undertaken by the Company Group or any of their representatives (including attorneys and accountants) incurred following the date hereof pursuant to or in connection with the Financing or any alternative or additional financing (which amounts shall not include allocation of employee salaries or Company overhead other than any overtime expenses of employees demonstrably related to the foregoing) (“Financing Reimbursement Amounts”), shall be at Parent's sole cost and expense, and (z) neither the Company or its Affiliates nor any of their representatives shall be required to be delivered pay any commitment or effective until at similar fee or promptly following the Effective Time, (v) subject to otherwise incur any contractual agreement in effect, obtaining the Payoff Letter, and the related lien releases, and instruments of termination or discharge, as applicable, required pursuant to Section 6.12, in each case which shall provide that, if sufficient funds are received by the financing sources under the Credit Agreement in order to pay off in full all obligations (other than the Excluded Obligations) liability in connection therewith or secured thereby, such release, termination and/or discharge shall be effective, and (vi) furnishing Parent as promptly as reasonably practical (and at least three (3) business days with the Financing prior to the Closing Date) with all documentation and other information related to Closing. Parent shall promptly following written request by the Company and its Subsidiary required by regulatory authorities under applicable “know your customer” and anti(which request shall include reasonable, non-money laundering rules and regulations, including privileged supporting documentation) reimburse the PATRIOT Act, that has been reasonably requested in writing by Parent or its Company for any Financing Sources at least ten (10) business days prior Reimbursement Amounts. Parent's obligation to pay the Closing DateCompany for the Financing Reimbursement Amounts shall survive any termination of this Agreement. The Company hereby consents to the use of its and its Subsidiary’s the Company's logos in connection with the Financing so long as Financing; provided that such logos are used solely (i) in a manner that is not intended to or that is not nor reasonably likely to harm or disparage the Company or its Subsidiary or the reputation or goodwill of the Company or its Subsidiary and (ii) solely in connection with a description of the Company, its business and products or the Merger.
(b) Notwithstanding anything to the requirements of Section 6.16(a) or anything contrary contained in this Agreement to the contraryAgreement, (i) neither Parent acknowledges and agrees that any and all actions undertaken by the Company nor Group, the Representative or any of their respective Affiliates pursuant to Section 5.3(a) are so undertaken as a mere accommodation to Parent, its Affiliates and/or Parent's financing sources, or their respective representatives, and that any such actions requested by Parent and its Affiliates or their respective Representatives representatives that may alter, modify or otherwise affect any representation, warranty, covenant or agreement contained in this Agreement shall not be required to enter intodeemed a breach or inaccuracy of any representation, approve warranty, covenant or perform (or commit to enter into, approve or perform) any certificate, document, agreement, or instrument, in each case which will be effective prior to the Effective Time, (ii) nothing herein shall require cooperation contemplated thereby to the extent it would interfere unreasonably with the business or operations of the Company or any of its Affiliates or their respective Affiliates, (iii) none of the Company nor any of its Affiliates or their respective Representatives, will be required to (1) pay or commit to pay any commitment or other fee, (2) reimburse or incur any costs or expenses or incur any other liability (including any guarantee, indemnity or pledge) in connection with the Financing or the Marketing Documents prior to the Effective Time, (3) provide any financial data other than the Required Informationfailure of, or (4) provide any legal opinion or reliance letters or any certificate (failure to satisfy, a condition set forth in this Agreement. Except in the case of the Company fraud or its Subsidiary that would be required to be delivered prior to the Effective Time), comfort letter or opinion of any of its Representatives, (iv) nothing herein will involve any binding commitment by the Company, any of its Affiliates or any of their respective Representatives which commitment is not conditioned on the Effective Time and does not terminate without liability to the Company, its Affiliates and their respective Representatives upon the termination of this Agreement, and (v) nothing herein will require the Company, any of its Affiliates or any of their respective Representatives to provide any information or take any action, the disclosure or taking of which would violate applicable Legal Requirements, any fiduciary duty, any Contract or obligation of confidentiality owing to a third party, or jeopardize the protection of the attorney-client privilege (or similar protections) held willful breach by the Company or any of its Affiliates; provided that, if the Company does not provide or cause its Representatives to provide such access or such information in reliance on the foregoing, then the Company shall (1) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1) any Representative of the Company or its Subsidiary to deliver any certificate or opinion or take any other action under this Section 6.16 that could reasonably be expected to result in personal liability to such Representative; (2) the Board of Directors (or any committee or subcommittee thereof) or the board of directors, managers, managing member or any similar controlling body of any Subsidiary of the Company to approve (or otherwise take any corporate or similar action with respect to) any financing (including the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) the Company and its Subsidiary to take any action that would conflict with or violate its organizational or governance documents or any applicable Legal Requirements, or result in the contravention of, or that could reasonably be expected to result in a violation of breach of, or default under, any agreement to which the Company or its Subsidiary is a party.
(c) Subject to any applicable Legal Requirements, all non-public or other confidential information provided by the Company, its Subsidiary or any of their respective Representatives pursuant to this Agreement will be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Purchaser will be permitted to disclose such information to any Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties to the Financing and to any underwriters, initial purchasers or placement agents in connection with the Financing (and, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; or (ii) are subject to other confidentiality undertakings reasonably satisfactory to the Company and of which the Company is a beneficiary.
(d) If the Closing does not occur, promptly upon request by the Company, Parent will reimburse the Company for any documented and reasonable out-of-pocket costs and expenses (including attorneys’ fees) incurred by the Company or its Subsidiary in connection with the cooperation of the Company and its Subsidiary contemplated by this Section 6.16 (it being understood and agreed that the reimbursement set forth in this Section 6.16(d) shall not apply to any fees, costs, and expenses incurred by, or on behalf of, the Company, its Subsidiary or any of its Representatives in connection with its ordinary course financial reporting requirements or in the provision of data that, in each case, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding this Section 6.16).
(e) The Parent shall indemnify, defend and hold harmless the Company Entities and their respective Representatives Seller Indemnified Parties from and against any and all losses, damages, claims, interest, awards, judgments, penalties, costs and expenses Damages actually suffered or incurred by any of them in connection with the Financing Seller Indemnified Parties, to the extent arising out of: (including y) any action taken by a Company Indemnified Party at the request of Parent pursuant to Section 5.3(a) or (z) any information utilized in accordance with this Section 6.16) and costs and expenses incurred in defending against the foregoing, except connection therewith (other than historical information related to the extent such lossesCompany Group provided in writing to Parent by the Company Group specifically for use in the Financing offering materials), damages, claims, costs or expenses arise from the willful breach and this indemnification shall survive termination of this Agreement by the Company, as finally determined by a court of competent jurisdiction, or from fraud on the part of the CompanyAgreement.
Appears in 1 contract
Samples: Merger Agreement (Aspect Software Group Holdings Ltd.)
Financing Cooperation. (a) Subject Prior to Section 6.16(b), prior to Closing or termination of this Agreementthe Closing, the Company shallshall provide to Parent and Merger Sub, and shall cause its Subsidiaries and their respective Representatives to, and shall use its reasonable best efforts to cause the Representatives of the Company and its Subsidiaries to, provide to Parent and Merger Sub all cooperation reasonably cooperate with and requested by Parent that is necessary or reasonably assist Parent, at the Parent’s request, sole cost and expense, required in connection with arranging, obtaining and syndicating any Financing and causing the conditions in the Financing Documents and any commitment letters entered into in connection with such Financing to be satisfiedFinancing, including the following: (i) using reasonable best efforts to cause the Company’s senior officers and other Representatives to participate in meetings, presentations, road shows, due diligence sessions (iincluding accounting due diligence sessions), drafting sessions and sessions with rating agencies; (ii) assisting with, and furnishing information for the purposes of, with the preparation of appropriate and customary prospectuses (including any pro forma financial information and any information required under Article 18(2) of Commission Delegated Regulation (EU) 2019/980)materials for rating agency presentations, offering documents, syndication documents and materials, including bank information memoranda and private placement memoranda, lender and investor presentations, rating agency materials and presentations and other customary marketing materials similar documents proper or advisable in connection with the Financing Financing; (all such iii) using its reasonable best efforts to assist with the preparation of any loan agreement, currency or interest hedging agreement, other definitive financing documents and materialson terms satisfactory to Parent, collectivelyprovided that (A) there shall be no obligation to deliver any certificate, the “Marketing Documents”) (it being understood and agreed that the Marketing Documents shall include (opinion, comfort letter or otherwise be subject to) any customary exculpation language, other document as the case may be, with respect a condition to the Company, Financing and (B) no obligation of the Company or any of its Affiliates Subsidiaries under any such document or agreement shall be effective until the Effective Time; (iv) using reasonable best efforts to furnish on a confidential basis to Parent and Merger Sub and their respective Representatives)financing sources, (ii) furnishing to the Parent as promptly as reasonably practicable practicable, with financial statements and operational other pertinent information (including consolidated financial statements for interim periods up until the Closing Date) that can be prepared without undue burden with respect to regarding the Company and its Subsidiary Subsidiaries as is may be reasonably requested by Parent (and that is within the “Required Information”), (iii) assisting Company’s possession and in the preparation of schedules form that the Company customarily prepares and within the timeframes so prepared; (v) providing monthly financial statements (excluding footnotes) to collateral agreements by providing information the extent the Company customarily prepares such financial statements within the time such statements are customarily prepared; and (vi) using reasonable best efforts, as appropriate, to have its independent accountants provide its reasonable cooperation and assistance; provided, however, that nothing herein or in this Agreement shall require such cooperation to the extent it would unreasonably interfere with the business or operations of the Company Entities or its Subsidiaries; and provided further; that notwithstanding anything in this Agreement to the contrary, until the Effective Time occurs, neither the Company nor any of its Subsidiaries shall be required to be made available on such schedules for purposes adopt any resolutions, assume any obligations thereunder or pay any commitment or other similar fee or give any indemnities. The foregoing notwithstanding, nothing in this Section 6.13 shall limit or restrict the obligation of Parent and Merger Sub to implement this Agreement and no failure of the Company, and its subsidiaries or any of their respective Representatives to perform any of their respective obligations pursuant to this Section 6.13 shall directly or indirectly provide any basis for Parent or Merger Sub to fail to perform its obligations pursuant to this Agreement, unless any refusal by the Company to take action required pursuant to this Section 6.13 is intentionally done for the purpose of preventing the Financing from occurring prior to the End Date. Parent shall, promptly upon written request by the Company, reimburse the Company for all reasonable and documented out-of-pocket expenses to the extent such costs are incurred by the Company or its Subsidiaries at the written request of Parent in connection with the cooperation provided pursuant to this Section 6.13 and Parent shall indemnify and hold harmless the Company and its Subsidiaries and their respective directors, officers, employees and Representatives from and against any and all Costs suffered or incurred by them in connection with the arrangement or consummation of the Financing, except in the event that such Costs arose out of a knowing and material breach of this Section 6.13.
(ivb) subject to any contractual agreement in effect, facilitating the pledging of collateral for the Financing, which shall not be required to be delivered or effective until at or promptly following the Effective Time, (v) subject to any contractual agreement in effect, obtaining the Payoff Letter, Parent and the related lien releases, Merger Sub acknowledge and instruments of termination or discharge, as applicable, required pursuant to Section 6.12, in each case which shall provide that, if sufficient funds are received by the financing sources under the Credit Agreement in order to pay off in full all obligations (other than the Excluded Obligations) in connection therewith or secured thereby, such release, termination and/or discharge shall be effective, and (vi) furnishing Parent as promptly as reasonably practical (and at least three (3) business days prior to agree that the Closing Dateis not conditioned on the availability of the Required Transaction Funds.
(c) with all documentation and other information related to the Company and its Subsidiary required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, that has been reasonably requested in writing by Parent or its Financing Sources at least ten (10) business days prior to the Closing Date. The Company hereby consents to the use of its and its Subsidiary’s Subsidiaries’ logos in connection with the Financing so long as Financing; provided that such logos are used solely (i) in a manner that is not intended to or that is not reasonably likely to harm or disparage the Company or any of its Subsidiary Subsidiaries or the reputation or goodwill of the Company or its Subsidiary and (ii) solely in connection with a description of the Company, its business and products or the Merger.
(b) Notwithstanding the requirements of Section 6.16(a) or anything in this Agreement to the contrary, (i) neither the Company nor any of its Affiliates Subsidiaries and its or their respective Representatives shall be required to enter into, approve marks or perform (or commit to enter into, approve or perform) any certificate, document, agreement, or instrument, in each case which will be effective prior to create the Effective Time, (ii) nothing herein shall require cooperation contemplated thereby to the extent it would interfere unreasonably with the business or operations of impression that the Company or has any of its Affiliates or their respective Affiliates, (iii) none of the Company nor any of its Affiliates or their respective Representatives, will be required to (1) pay or commit to pay any commitment or other fee, (2) reimburse or incur any costs or expenses or incur any other liability (including any guarantee, indemnity or pledge) in connection with the Financing or the Marketing Documents prior to the Effective Time, (3) provide any financial data other than the Required Information, or (4) provide any legal opinion or reliance letters or any certificate (in the case of the Company or its Subsidiary that would be required to be delivered prior to the Effective Time), comfort letter or opinion of any of its Representatives, (iv) nothing herein will involve any binding commitment by the Company, any of its Affiliates or any of their respective Representatives which commitment is not conditioned on obligations thereunder unless and until the Effective Time and does not terminate without liability to the Company, its Affiliates and their respective Representatives upon the termination of this Agreement, and (v) nothing herein will require the Company, any of its Affiliates or any of their respective Representatives to provide any information or take any action, the disclosure or taking of which would violate applicable Legal Requirements, any fiduciary duty, any Contract or obligation of confidentiality owing to a third party, or jeopardize the protection of the attorney-client privilege (or similar protections) held by the Company or any of its Affiliates; provided that, if the Company does not provide or cause its Representatives to provide such access or such information in reliance on the foregoing, then the Company shall (1) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1) any Representative of the Company or its Subsidiary to deliver any certificate or opinion or take any other action under this Section 6.16 that could reasonably be expected to result in personal liability to such Representative; (2) the Board of Directors (or any committee or subcommittee thereof) or the board of directors, managers, managing member or any similar controlling body of any Subsidiary of the Company to approve (or otherwise take any corporate or similar action with respect to) any financing (including the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) the Company and its Subsidiary to take any action that would conflict with or violate its organizational or governance documents or any applicable Legal Requirements, or result in the contravention of, or that could reasonably be expected to result in a violation of breach of, or default under, any agreement to which the Company or its Subsidiary is a partyoccurs.
(c) Subject to any applicable Legal Requirements, all non-public or other confidential information provided by the Company, its Subsidiary or any of their respective Representatives pursuant to this Agreement will be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Purchaser will be permitted to disclose such information to any Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties to the Financing and to any underwriters, initial purchasers or placement agents in connection with the Financing (and, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; or (ii) are subject to other confidentiality undertakings reasonably satisfactory to the Company and of which the Company is a beneficiary.
(d) If the Closing does not occur, promptly upon request by the Company, Parent will reimburse the Company for any documented and reasonable out-of-pocket costs and expenses (including attorneys’ fees) incurred by the Company or its Subsidiary in connection with the cooperation of the Company and its Subsidiary contemplated by this Section 6.16 (it being understood and agreed that the reimbursement set forth in this Section 6.16(d) shall not apply to any fees, costs, and expenses incurred by, or on behalf of, the Company, its Subsidiary or any of its Representatives in connection with its ordinary course financial reporting requirements or in the provision of data that, in each case, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding this Section 6.16).
(e) The Parent shall indemnify, defend and hold harmless the Company Entities and their respective Representatives from and against any and all losses, damages, claims, interest, awards, judgments, penalties, costs and expenses suffered or incurred by any of them in connection with the Financing (including any action taken in accordance with this Section 6.16) and costs and expenses incurred in defending against the foregoing, except to the extent such losses, damages, claims, costs or expenses arise from the willful breach of this Agreement by the Company, as finally determined by a court of competent jurisdiction, or from fraud on the part of the Company.
Appears in 1 contract
Financing Cooperation. (a) Subject Prior to Section 6.16(b), prior to Closing or termination of this AgreementEffective Time, the Company shallwill, and shall will cause its Subsidiaries and their respective Representatives to, and will use reasonable best efforts to reasonably cooperate with cause the Representatives of the Company and reasonably assist its Subsidiaries to, provide to Parent, at the Parent’s request, sole cost and expense, such cooperation as may be reasonably and customarily requested by Parent in connection with arrangingobtaining the Debt Financing no later than the Closing Date, obtaining and syndicating any Financing and causing the conditions in the Financing Documents and any commitment letters entered into in connection with such Financing to be satisfied, including using which reasonable best efforts in shall include, but not be limited to:
(i) assisting participation in, and assistance with, as applicable, the Marketing Efforts related to the Debt Financing; provided, any meetings or conference calls shall be at times and locations to be mutually agreed;
(ii) furnishing information to Parent the Financing Information and assisting Parent with Parent’s preparation of pro forma and projected financial information; provided, the Company shall not be responsible for the purposes of, the preparation of customary prospectuses (including any such pro forma and/or projected financial information which shall be prepared solely by the Parent and any the Company shall have no liability with respect to such information required under Article 18(2prepared by the Parent;
(iii) of Commission Delegated Regulation (EU) 2019/980), offering documents, syndication documents assisting Parent in obtaining corporate and materials, including bank information memoranda and private placement memoranda, lender and investor presentations, rating agency materials and presentations and other customary marketing materials facilities ratings in connection with the Debt Financing required by Section 3(d) of the Debt Commitment Letter; provided that any meetings, presentations, conference calls or other required activities in connection therewith shall be scheduled for times and at location’s to be mutually agreed;
(all such documents and materialsiv) upon reasonable request, collectively, the “Marketing Documents”) (it being understood and agreed that identifying any material non-public information contained in the Marketing Documents shall include (or otherwise be subject to) any customary exculpation language, as the case may be, Materials with respect to the Company;
(v) delivering such due diligence materials as are reasonably available to it without undue burden or expense and as are reasonably requested by Parent and customarily delivered in connection with the Marketing Materials;
(vi) assisting in the negotiation, its Affiliates execution and their respective Representatives)delivery of definitive financing documents, (ii) furnishing including credit agreements, guarantee and collateral documents, customary closing certificates, perfection certificates and any schedules thereto as may be required by the Financing Sources and other customary documents as may be reasonably requested by Parent; provided, that such documents be effective only upon Closing and that the Company shall have no liability with respect to such documents prior to the Closing; and
(vii) taking all corporate actions, subject to the occurrence of the Closing, reasonably requested by Parent as promptly as reasonably practicable financial statements and operational information to permit the consummation of the Debt Financing; provided that none of the boards of directors (including consolidated financial statements for interim periods up or equivalent bodies) of the Company or its Subsidiaries shall be required to enter into any resolutions or take similar action approving the Debt Financing until the Closing Datehas occurred.
(b) that can be prepared without undue burden The Company will, and will cause its Subsidiaries to, provide to Parent:
(i) if any Indebtedness remains outstanding as of the Closing, a customary payoff letter with respect to such Indebtedness, from each holder of such outstanding Indebtedness (A) indicating the amount required to discharge such Indebtedness at Closing and/or releasing the obligations of the Company and its Subsidiary as is reasonably requested by Parent (the “Required Information”), (iii) assisting in the preparation of schedules to collateral agreements by providing information of the Company Entities required to be made available on such schedules for purposes of the arrangement or consummation of the Financing, (iv) subject to any contractual agreement in effect, facilitating the pledging of collateral for the Financing, which shall not be required to be delivered or effective until at or promptly following the Effective Time, (v) subject to any contractual agreement in effect, obtaining the Payoff Letter, and the related lien releases, and instruments of termination or discharge, as applicable, required pursuant to Section 6.12, in each case which shall provide that, if sufficient funds are received by the financing sources under the Credit Agreement in order to pay off in full all obligations (other than the Excluded Obligations) in connection therewith or secured thereby, such release, termination and/or discharge shall be effectiveSubsidiaries thereunder, and (viB) furnishing Parent as promptly as reasonably practical if such Indebtedness is secured by any liens, agreeing to release such liens upon receipt of the payoff amount; and
(and ii) Customary KYC Information at least three (3) business days Business Days prior to the Closing Date) with all documentation and other information related Date to the Company and its Subsidiary required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, that has been reasonably extent such information was requested in writing by Parent or its Financing Sources at least ten (10) business days Business Days prior to the Closing Date. The Company hereby consents to the use of its and its Subsidiary’s logos closing in connection accordance with the Financing so long as such logos are used solely (i) in a manner that is not intended to or that is not reasonably likely to harm or disparage the Company or its Subsidiary or the reputation or goodwill definition of the Company or its Subsidiary and (ii) solely in connection with a description of the Company, its business and products or the MergerCustomary KYC Information.
(bc) Notwithstanding the requirements of Section 6.16(a) or anything in this Agreement Section 5.21 to the contrary, nothing herein will require (i) neither the Company nor any of its Affiliates or their respective Representatives shall be required to enter into, approve or perform (or commit to enter into, approve or perform) any certificate, document, agreement, or instrument, in each case which will be effective prior to the Effective Time, (ii) nothing herein shall require such cooperation contemplated thereby to the extent it would interfere unreasonably with the business or operations of the Company or any of its Affiliates Subsidiaries or their respective Affiliatesresult in undue burden or expense, (iiiii) none delivery of the Company nor any of its Affiliates or their respective Representatives, will be required to (1) pay or commit to pay any commitment or other fee, (2) reimburse or incur any costs or expenses or incur any other liability (including any guarantee, indemnity or pledge) in connection with the Financing or the Marketing Documents prior to the Effective Time, (3) provide any financial data other than the Required Information, or (4) provide any legal opinion or reliance letters or any certificate (information in the case of the Company or its Subsidiary that would be required to be delivered prior to the Effective Time), comfort letter or opinion of any of its Representatives, (iv) nothing herein will involve any binding commitment by the Company, any of its Affiliates or any of their respective Representatives which commitment is a form not conditioned on the Effective Time and does not terminate without liability to the Company, its Affiliates and their respective Representatives upon the termination of this Agreement, and (v) nothing herein will require the Company, any of its Affiliates or any of their respective Representatives to provide any information or take any action, the disclosure or taking of which would violate applicable Legal Requirements, any fiduciary duty, any Contract or obligation of confidentiality owing to a third party, or jeopardize the protection of the attorney-client privilege (or similar protections) held customarily prepared by the Company or any of its Affiliates; provided thatfinancial information with respect to a fiscal period that has not yet ended, if the Company does not provide or cause its Representatives to provide such access or such information in reliance on the foregoing, then the Company shall (1) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate (at the request of Parent) to provide for which the applicable access quarterly or information in a way that would annual report has not violate such applicable Legal Requirementsbeen filed with the SEC or delivery of projections, fiduciary duty (iii) delivery of any legal opinions or Contract solvency certificate, or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1) any Representative of the Company or its Subsidiary to deliver any certificate or opinion or take any other action under this Section 6.16 that could reasonably be expected to result in personal liability to such Representative; (2iv) the Board taking of Directors (or any committee or subcommittee thereof) or the board of directors, managers, managing member or any similar controlling body of any Subsidiary of the Company to approve (or otherwise take any corporate or similar action with respect to) any financing (including the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) the Company and its Subsidiary to take any action that would conflict with or violate its organizational or governance documents or any applicable Legal Requirements(x) the Company Organizational Documents, or result in the contravention of, or that could would reasonably be expected to result in a violation of or breach of, or default under, any agreement material written agreement, Contract, subcontract, lease, license understanding, instrument, note, bond, mortgage, indenture, option, warranty, insurance policy, benefit plan or other legally binding commitment to which the Company or any of the its Subsidiary Subsidiaries is a party.
(c) Subject to any applicable Legal Requirements, all non-public or other confidential information provided by the Company, its Subsidiary or any of their respective Representatives pursuant to this Agreement will be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Purchaser will be permitted to disclose such information to any Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties to the Financing and to any underwriters, initial purchasers or placement agents in connection with the Financing (and, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by case that are not contingent upon the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; Effective Time or (iiy) are subject to other confidentiality undertakings reasonably satisfactory to the Company and of which the Company is a beneficiaryany applicable Laws.
(d) If Notwithstanding anything in this Section 5.21 to the Closing does contrary, neither the Company nor any of its Subsidiaries will be required to (i) prior to the Effective Time, bear any out-of-pocket cost or expense that is not occurreimbursed pursuant to this Section 5.21 or pay any fee in connection with the Debt Financing, or (ii) enter into any agreement or commitment that would be effective prior to the Effective Time. Furthermore, Parent will, promptly upon request by the Company, Parent will reimburse the Company for any documented and all reasonable out-of-pocket costs and expenses (including attorneys’ feesfees and expenses of counsel) incurred by the Company or Company, any of its Subsidiary Subsidiaries and its and their respective Representatives, in connection with the cooperation of the Company and its Subsidiary contemplated by their respective obligations pursuant to this Section 6.16 (it being understood and agreed that 5.21. Parent will, prior to the reimbursement set forth in this Section 6.16(d) shall not apply to any feesEffective Time, costs, and expenses incurred by, or on behalf of, the Company, its Subsidiary or any of its Representatives in connection with its ordinary course financial reporting requirements or in the provision of data that, in each case, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding this Section 6.16).
(e) The Parent shall indemnify, defend indemnify and hold harmless the Company Entities Company, any of its Subsidiaries and its and their respective Representatives from and against any and all losses, damages, claims, interest, awards, judgments, penalties, costs Liabilities and expenses Damages suffered or incurred by any of them in connection with the Debt Financing (including and any action taken information utilized in accordance with this Section 6.16) and costs and expenses incurred in defending against the foregoing, except connection therewith. The Company hereby consents to the extent use of all of its and its Subsidiaries’ names and logos in connection with the Debt Financing; provided, that such losses, damages, claims, costs or expenses arise from names and logos are used solely in the willful breach of this Agreement by the Company, as finally determined by a court of competent jurisdictionmatter that is not intended, or from fraud on reasonably likely, to harm or disparage the part Company or its Subsidiaries or the reputation or the goodwill of the CompanyCompany or its Subsidiaries.
Appears in 1 contract
Samples: Merger Agreement (Inteliquent, Inc.)
Financing Cooperation. (a) Subject Prior to Section 6.16(b)and, prior to Closing or termination of this Agreementif applicable, concurrently with the Closing, the Company shall, and shall cause its Subsidiaries and their respective Representatives to, use its and their (and its and their Representatives’) reasonable best efforts to provide such cooperation as may be reasonably cooperate with and reasonably assist Parent, at the Parent’s request, sole cost and expense, requested by Parent in connection with arrangingthe arrangement of the Financing; provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries. Without limiting the generality of the foregoing sentence, obtaining prior to the Closing, the Company shall, and syndicating any shall cause its Subsidiaries to, use its and their reasonable best efforts to: (i) as promptly as practicable provide information (financial or otherwise) relating to the Company and its Subsidiaries to Parent and to the Financing and causing the conditions Sources (including information to be used in the Financing Documents preparation of an information package regarding the business, operations, financial condition, financial projections and any commitment letters entered into prospects of Parent and the Company that is customary or reasonably necessary for the completion of such financing) to the extent reasonably requested by Parent in connection with such Financing to be satisfied, including using reasonable best efforts in (i) assisting with, and furnishing information for the purposes of, the Parent’s preparation of customary prospectuses offering or information documents to be used for the completion of the Financing, (including any pro forma financial information ii) cooperate and any information required under Article 18(2) assist with the due diligence, rating agency processes and marketing efforts of Commission Delegated Regulation (EU) 2019/980)Parent, offering documents, syndication documents its Representatives and materialsthe Financing Sources, including bank participating in a reasonable number of meetings, due diligence sessions and road shows, at times and at locations reasonably acceptable to the Company and ensuring that any syndication efforts benefit from the existing lending and investment banking relationships of the Company, (iii) reasonably assist Parent in preparing customary offering memoranda, rating agency presentations, lender presentations, confidential information memoranda and private placement memoranda, lender financial statements (including pro forma and investor presentationsprojected financial statements), rating agency materials and presentations prospectuses and other customary marketing materials in connection with similar documents, including delivery of (A) audited consolidated balance sheets and related audited statements of income, stockholders’ equity and cash flows of the Financing Company for each of the three (all 3) fiscal years most recently ended at least 90 days prior to the Closing Date (and audit reports for such documents and materials, collectively, the “Marketing Documents”) (it being understood and agreed that the Marketing Documents financial statements shall include (or otherwise not be subject to) to any customary exculpation language, as the case may be, with respect to the Company, its Affiliates and their respective Representatives“going concern” qualifications), (iiB) furnishing unaudited consolidated balance sheets and related unaudited statements of income, comprehensive income, stockholders’ equity and cash flows of the Company for each subsequent fiscal quarter ended more than 45 days prior to the Closing Date and (C) all other historical financial and other information regarding the Company reasonably necessary to permit Parent as promptly as reasonably practicable to prepare pro forma and projected financial statements customary for the Financing or the Alternative Financing, (iv) make available, on a customary and operational reasonable basis and upon reasonable notice, appropriate personnel, including senior management and Representatives of the Company and its Subsidiaries, documents and information (including consolidated financial statements for interim periods up until the Closing Date) that can be prepared without undue burden with respect relating to the Company and its Subsidiary Subsidiaries, in each case, as is may be reasonably requested by Parent (or the “Required Information”)Financing Sources, (iii) assisting or as may be requested by the SEC, in connection with the preparation of schedules to collateral agreements by providing information completion of the Company Entities required to be made available on such schedules for purposes of Financing or the arrangement or consummation of the Alternative Financing, (iv) subject to any contractual agreement in effect, facilitating the pledging of collateral for the Financing, which shall not be required to be delivered or effective until at or promptly following the Effective Time, (v) subject provide to any contractual agreement in effect, obtaining Parent and the Payoff LetterFinancing Sources promptly, and the related lien releases, and instruments of termination or discharge, as applicable, required pursuant to Section 6.12, in each case which shall provide that, if sufficient funds are received by the financing sources under the Credit Agreement in order to pay off in full all obligations (other than the Excluded Obligations) in connection therewith or secured thereby, such release, termination and/or discharge shall be effective, and (vi) furnishing Parent as promptly as reasonably practical (and any event at least three (3) business days Business Days prior to the Closing Date) with , all documentation and other information related to about the Company and its Subsidiary Affiliates required by the Financing Sources or regulatory authorities with respect to the Financing under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, that has been reasonably is required under the Commitment Letter to the extent such documentation and other information is requested in writing by Parent or its Financing Sources to the Company at least ten (10) business days 10 Business Days prior to the Closing Date. The Company hereby , (vi) obtain any necessary consents from the Company’s independent public accounting firm in connection with any filings with the SEC, (vii) obtain customary comfort letters and consents from the Company’s independent public accounting firm for use of their reports in any materials relating to the use Financing or the Alternative Financing and in connection with any filings required to be made by Parent with the SEC, (viii) subject to customary confidentiality provisions, provide customary “10b-5” certifications and authorization letters to the Financing Sources authorizing the distribution of its information to prospective lenders, (ix) deliver notices of prepayment and/or notices for termination of commitments within the time periods required in connection with the prepayment of any indebtedness or other obligations of the Company, including the Credit Agreement, and obtain customary payoff letters and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of such indebtedness or other obligations, including the Credit Agreement, (x) reasonably assist with the pledging of collateral and the preparation of the definitive documentation for the Financing or the Alternative Financing, including by providing information reasonably necessary for the completion of any schedules thereto, in each case to the extent, and solely to the extent, such materials relate to information concerning the Company and its Subsidiary’s logos Subsidiaries, (xi) provide or cause to be provided any customary certificates, or other customary closing documents as may reasonably be requested in connection with the Financing so long as and the Alternative Financing and (xii) consent to the use of the trademarks, service marks and logos of the Company or any of its Subsidiaries in connection with the Financing; provided that such trademarks, service marks and logos are used solely (i) in a manner that is not intended to or that is not reasonably likely to harm or disparage the Company or any of its Subsidiary or Subsidiaries and in conformance with the reputation or goodwill of Company’s quality control guidelines and procedures as provided to Parent by the Company or its Subsidiary and prior to the date of this Agreement (ii) solely in connection it being understood that all goodwill associated with a description such use shall inure to the sole benefit of the Company, its business and products or the Merger.
(b) ). Notwithstanding the requirements of Section 6.16(a) or anything in this Agreement to the contraryforegoing, (i1) neither the Company nor any of its Affiliates Subsidiaries shall be required to pay any commitment or other similar fee or incur prior to the Closing any other liability or obligation in connection with the Financing, unless Parent reimburses or is required to reimburse or indemnify the Company and its Subsidiaries pursuant to this Agreement or otherwise agrees to do so, (2) none of the Company, its Subsidiaries or their respective Representatives shall be required to execute or enter into, approve into or perform (any agreement with respect to the Financing that is not contingent upon the Closing occurring or commit to enter into, approve or perform) any certificate, document, agreement, or instrument, in each case which will that would be effective prior to the Effective TimeClosing (other than the “10b-5” certifications and authorization letters contemplated by clause (viii) of this Section 6.17(a) and for the avoidance of doubt, the boards of directors or other equivalent governing bodies of Parent, Merger Sub, and/or the Surviving Corporation shall enter into or provide any resolutions, consents, approvals or other closing arrangements on behalf of the Company and its Subsidiaries as may be required by the Financing Sources pursuant to the Commitment Letter at, or as of, the Closing), and (ii3) nothing herein shall require cooperation contemplated thereby obligate the Company or any of its Subsidiaries to (a) take any action in respect of the Financing to the extent it that such action would cause any condition to Closing set forth in Article VII to fail to be satisfied by the Outside Date or otherwise result in a breach of this Agreement by the Company, (b) take any action to the extent such action would unreasonably interfere unreasonably with the business or operations of the Company or its Subsidiaries, (c) issue in its own name any bank information memoranda or high-yield offering prospectuses or memoranda required in relation to the Financing (it being understood that any such information memoranda or prospectus or memoranda shall reflect the Surviving Corporation and all or certain of its Affiliates Subsidiaries as obligors) or their respective Affiliates, (iiid) none of the Company nor any of its Affiliates or their respective Representatives, will be required to (1) pay or commit to pay any commitment or other fee, (2) reimburse or incur any costs or expenses or incur any other liability (including any guarantee, indemnity or pledge) in connection with the Financing or the Marketing Documents prior to the Effective Time, (3) provide any financial data other than the Required Informationprovide, or (4) provide cause to be provided, any legal opinion by its counsel, or reliance letters to provide, or cause to be provided, any certificate (information or take, or cause to be taken, any action to the extent it would reasonably be expected, in the case reasonable judgment of the Company or its Subsidiary that would be required to be delivered prior to the Effective Time), comfort letter or opinion of any of its Representatives, (iv) nothing herein will involve any binding commitment by the Company, any of its Affiliates or any of their respective Representatives which commitment is not conditioned on the Effective Time and does not terminate without liability to the Company, its Affiliates and their respective Representatives upon the termination of this Agreement, and (v) nothing herein will require the Company, any of its Affiliates or any of their respective Representatives to provide any information or take any action, the disclosure or taking of which would violate applicable Legal Requirements, any fiduciary duty, any Contract or obligation of confidentiality owing to a third party, or jeopardize the protection of the attorney-client privilege (or similar protections) held by the Company or any of its Affiliates; provided that, if the Company does not provide or cause its Representatives to provide such access or such information in reliance on the foregoing, then the Company shall (1) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1) any Representative of the Company or its Subsidiary to deliver any certificate or opinion or take any other action under this Section 6.16 that could reasonably be expected to result in personal liability to such Representative; (2) the Board of Directors (or any committee or subcommittee thereof) or the board of directors, managers, managing member or any similar controlling body of any Subsidiary of the Company to approve (or otherwise take any corporate or similar action with respect to) any financing (including the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) the Company and its Subsidiary to take any action that would conflict with or violate its organizational or governance documents or any applicable Legal Requirements, or result in the contravention of, or that could reasonably be expected to result in a violation of breach of, the Company’s or default under, any agreement to which the Company of its Subsidiaries’ organizational documents or its Subsidiary is a partyapplicable Law or loss of any privilege.
(cb) Subject to any applicable Legal Requirements, all non-public or other confidential information provided by the Company, its Subsidiary or any of their respective Representatives pursuant to this Agreement will be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Purchaser will be permitted to disclose such information to any Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties to the Financing and to any underwriters, initial purchasers or placement agents in connection with the Financing (and, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; or (ii) are subject to other confidentiality undertakings reasonably satisfactory to the Company and of which the Company is a beneficiary.
(d) If the Closing does not occurshall, promptly upon written request by the Company, Parent will reimburse the Company for any all reasonable and documented and reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiary Subsidiaries in connection with the satisfying its obligations under this Section 6.17 or other cooperation of provided by the Company and its Subsidiary contemplated by this Section 6.16 (it being understood and agreed that the reimbursement set forth in this Section 6.16(d) shall not apply to any fees, costs, and expenses incurred by, or on behalf of, the Company, its Subsidiary or any of its Representatives in connection with Subsidiaries or any of its ordinary course financial reporting requirements or in their respective Representatives) at the provision request of data thatParent (or any of its Subsidiaries or any of its or their respective Representatives). Parent and Merger Sub shall, in each caseon a joint and several basis, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding this Section 6.16).
(e) The Parent shall indemnify, defend indemnify and hold harmless the Company Entities and its Subsidiaries and their respective Representatives from and against any and all losses, claims, damages, claimsliabilities, interestcosts, awardsexpenses, fees (including reasonable attorneys’ fees), judgments, penaltiesfines, costs penalties and expenses amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of any thereof) suffered or incurred in connection with any action taken by the Company, any of them its Subsidiaries or any of their respective Representatives pursuant to this Section 6.17 or other cooperation provided by the Company (or any of its Subsidiaries or any of its or their respective Representatives) at the request of Parent (or any of its Subsidiaries or any of its or their respective Representatives) (other than the use of any information provided by the Company, any of its Subsidiaries or any of their respective Representatives for use in connection with the Financing (including any action taken in accordance with this Section 6.16) and costs and expenses incurred in defending against the foregoingFinancing), except to the extent such losses, claims, damages, claimsliabilities, costs or expenses arise from the willful breach of this Agreement by the Companycosts, as finally expenses, fees, judgments, fines, penalties and amounts paid in settlement are determined by a final non-appealable judgment of a court of competent jurisdictionjurisdiction to have arisen out of, or from fraud on resulted from, the part gross negligence or willful misconduct of the Company, any of its Subsidiaries or any of their respective Representatives.
Appears in 1 contract
Financing Cooperation. (a) Subject Prior to Section 6.16(b), prior to Closing or termination of this Agreementthe Acceptance Time, the Company shallshall provide, and shall cause its Subsidiaries to provide, and shall use its commercially reasonable efforts to cause its and their respective Representatives toofficers, use employees and advisors, including legal and accounting, to provide reasonable best efforts to reasonably cooperate with and reasonably assist Parent, at the Parent’s request, sole cost and expense, cooperation requested by Parent in connection with arranging, obtaining and syndicating the arrangement of any Financing and causing the conditions in the Financing Documents and any commitment letters entered into debt or equity financing transaction by Parent in connection with such Financing to be satisfiedthe Merger (the “Prospective Financing”), including using its commercially reasonable best efforts to (a) provide financial and other relevant information regarding the Company and its Subsidiaries that is reasonably necessary and cooperate in (i) assisting with, and furnishing information for the purposes of, the preparation of customary prospectuses (including any pro forma financial information for the Merger (including information to be used in the preparation of an information package, offering memorandum, prospectus, prospectus supplement or similar document regarding the business, assets, operations, financial projections and any information prospects of Parent and the Company customary for such financing or reasonably necessary for the completion of the Prospective Financing) as may be required under Article 18(2to obtain the Prospective Financing, (b) cooperate with the marketing efforts for the Prospective Financing (including consenting to the reasonable use of Commission Delegated Regulation (EU) 2019/980the logos of the Company and its Subsidiaries), offering documents(c) participate as appropriate in meetings, syndication documents and materials, including bank information memoranda and private placement memoranda, lender and investor presentations, road shows, drafting sessions, and sessions with the rating agency materials agencies as are reasonably necessary to consummate the Prospective Financing, (d) assist Parent and presentations its financing sources in the amendment or termination of, or in obtaining any relevant waiver from the lenders or counterparties of the Company or any of its Subsidiaries in relation to, any of the Company’s or any of its Subsidiaries’ existing credit agreements, currency or interest hedging agreements, or other agreements (including, for the avoidance of doubt, any arrangements creating security interests), in each case, on terms satisfactory to Parent and other customary marketing materials that are reasonably requested by Parent in connection with the Prospective Financing (all such documents and materialsconditioned upon the occurrence of the Acceptance Time, collectively, the “Marketing Documents”) (in each case it being understood and agreed that the Marketing Documents shall include (or otherwise be subject to) any customary exculpation language, as the case may be, with respect to the Company, its Affiliates information and their respective Representatives), (ii) furnishing to the Parent as promptly as reasonably practicable financial statements and operational information (including consolidated financial statements for interim periods up until the Closing Date) that can be prepared without undue burden with respect to documents provided by the Company and its Subsidiary as is reasonably requested by Parent Subsidiaries may be delivered to agents and lenders and their respective representatives and (the “Required Information”), (iii) assisting in the preparation of schedules to collateral agreements by providing information of the Company Entities required to be made available on such schedules for purposes of the arrangement or consummation of the Financing, (ive) subject to any contractual agreement in effectthe appropriate confidentiality undertakings, facilitating the pledging of collateral for the Financing, which shall not be required to be delivered cooperate reasonably with Parent’s financing sources’ or effective until at or promptly following the Effective Time, (v) subject to any contractual agreement in effect, obtaining the Payoff Letter, and the related lien releases, and instruments of termination or dischargeunderwriters’, as applicable, required pursuant to Section 6.12due diligence. Notwithstanding the foregoing, in each case which shall provide that, if sufficient funds are received by the financing sources under the Credit Agreement in order to pay off in full all obligations (other than the Excluded Obligations) in connection therewith or secured thereby, such release, termination and/or discharge shall be effective, and (vi) furnishing Parent as promptly as reasonably practical (and at least three (3) business days prior to the Closing Date) with all documentation and other information related to the Company and its Subsidiary required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, that has been reasonably requested in writing by Parent or its Financing Sources at least ten (10) business days prior to the Closing Date. The Company hereby consents to the use of its and its Subsidiary’s logos in connection with the Financing so long as such logos are used solely (i) in a manner that is not intended to or that is not reasonably likely to harm or disparage the Company or its Subsidiary or the reputation or goodwill no obligation of the Company or its Subsidiary and (ii) solely in connection with a description of the Company, its business and products or the Merger.
(b) Notwithstanding the requirements of Section 6.16(a) or anything in this Agreement to the contrary, (i) neither the Company nor any of its Affiliates or their respective Representatives shall be required Subsidiaries related to enter into, approve or perform any financing (or commit other than cooperation pursuant to enter into, approve or performthis Section 6.16) any certificate, document, agreement, or instrument, in each case which will be effective prior to the Effective Time, (ii) nothing herein shall require such cooperation contemplated thereby to the extent it would interfere unreasonably interfere, in an unreasonable manner, with the business or operations of the Company or any of its Affiliates or their respective AffiliatesSubsidiaries, and (iii) none of neither the Company nor any of its Affiliates or their respective Representatives, Subsidiaries will be required to (1) pay or commit to pay any commitment fee or other fee, (2) reimburse similar fee or incur any costs or expenses or incur liability with respect to any other liability (including any guarantee, indemnity or pledge) in connection with the Financing or the Marketing Documents financing prior to the Effective Time. Parent (A) will promptly, (3) provide any financial data other than the Required Information, or (4) provide any legal opinion or reliance letters or any certificate (in the case upon request of the Company or its Subsidiary that would be required to be delivered prior to the Effective Time), comfort letter or opinion of any of its Representatives, (iv) nothing herein will involve any binding commitment by the Company, any of its Affiliates or any of their respective Representatives which commitment is not conditioned on the Effective Time and does not terminate without liability to the Company, its Affiliates and their respective Representatives upon the termination of this Agreement, and (v) nothing herein will require the Company, any of its Affiliates or any of their respective Representatives to provide any information or take any action, the disclosure or taking of which would violate applicable Legal Requirements, any fiduciary duty, any Contract or obligation of confidentiality owing to a third party, or jeopardize the protection of the attorney-client privilege (or similar protections) held by the Company or any of its Affiliates; provided that, if the Company does not provide or cause its Representatives to provide such access or such information in reliance on the foregoing, then the Company shall (1) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1) any Representative of the Company or its Subsidiary to deliver any certificate or opinion or take any other action under this Section 6.16 that could reasonably be expected to result in personal liability to such Representative; (2) the Board of Directors (or any committee or subcommittee thereof) or the board of directors, managers, managing member or any similar controlling body of any Subsidiary of the Company to approve (or otherwise take any corporate or similar action with respect to) any financing (including the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) the Company and its Subsidiary to take any action that would conflict with or violate its organizational or governance documents or any applicable Legal Requirements, or result in the contravention of, or that could reasonably be expected to result in a violation of breach of, or default under, any agreement to which the Company or its Subsidiary is a party.
(c) Subject to any applicable Legal Requirements, all non-public or other confidential information provided by the Company, its Subsidiary or any of their respective Representatives pursuant to this Agreement will be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Purchaser will be permitted to disclose such information to any Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties to the Financing and to any underwriters, initial purchasers or placement agents in connection with the Financing (and, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; or (ii) are subject to other confidentiality undertakings reasonably satisfactory to the Company and of which the Company is a beneficiary.
(d) If the Closing does not occur, promptly upon request by the Company, Parent will reimburse the Company for any documented and reasonable all out-of-pocket costs and expenses (including attorneys’ fees) incurred by the Company Company, any of its Subsidiaries or its Subsidiary Representatives in connection with the cooperation of the Company and its Subsidiary contemplated Subsidiaries requested by Parent pursuant to this Section 6.16 6.16, (it being understood B) acknowledges and agreed agrees that the reimbursement set forth in this Section 6.16(d) shall not apply to any fees, costs, and expenses incurred by, or on behalf of, the Company, its Subsidiary Subsidiaries and Representatives will not have any responsibility for, or incur any of its Representatives in connection with its ordinary course financial reporting requirements or in liability to any Person under the provision of data that, in each case, was already prepared or was being prepared by Prospective Financing prior to the Effective Time and (C) will indemnify and hold harmless the Company, its Subsidiary or Subsidiaries and its Representatives in the ordinary course of business notwithstanding this Section 6.16).
(e) The Parent shall indemnify, defend and hold harmless the Company Entities and their respective Representatives from and against any and all losses, damages, claims, interest, awards, judgments, penalties, costs and or expenses to the extent suffered or incurred by any of them in connection with the arrangement of the Prospective Financing (including any action taken in accordance with pursuant to this Section 6.16) 6.16 and costs and expenses incurred any information used in defending against the foregoingconnection therewith, except to the extent that such losses, damages, claims, costs or expenses arise resulted from or arose out of the willful breach misconduct of, or information provided by, the Company or any of its Subsidiaries. Notwithstanding anything to the contrary in this Agreement, the Company agrees that, prior to the Acceptance Time, the Company shall either (1) deliver to Parent a fully executed and effective waiver under the Credit Agreement, in form and substance reasonably satisfactory to Parent, waiving any Default (as defined in the Credit Agreement) or Event of Default (as defined in the Credit Agreement) in connection with the consummation of the Offer, the Merger and the other transactions contemplated by this Agreement by or (2) repay all amounts owed under the CompanyCredit Agreement, as finally determined by a court terminate the Credit Agreement and provide evidence, in form and substance reasonably satisfactory to Parent, of competent jurisdiction, or from fraud on the part of the Companysuch termination.
Appears in 1 contract
Financing Cooperation. (a) Subject Prior to Section 6.16(b), prior to Closing or termination of this Agreementthe Closing, the Company shall, and shall cause each of its Subsidiaries to, at Parent’s sole cost and their respective Representatives toexpense, use reasonable best efforts to provide to Parent such assistance and cooperation reasonably cooperate with and reasonably assist Parent, at the Parent’s request, sole cost and expense, requested by Parent in connection with arrangingParent obtaining, obtaining and syndicating at Parent’s sole option, any Financing and causing the conditions in the Financing Documents and any commitment letters entered into in connection with such Financing to be satisfieddebt, including using reasonable best efforts in (i) assisting with, and furnishing information for the purposes of, the preparation of customary prospectuses (including any pro forma financial information and any information required under Article 18(2) of Commission Delegated Regulation (EU) 2019/980), offering documents, syndication documents and materials, including bank information memoranda and private placement memoranda, lender and investor presentations, rating agency materials and presentations and other customary marketing materials equity or hybrid financing in connection with the Financing transactions contemplated hereby (all such documents and materials, collectively, the “Marketing DocumentsFinancing”) (it being understood and agreed that the Marketing Documents shall include (or otherwise be subject to) any customary exculpation language, as the case may be, with respect to the Company, its Affiliates and their respective Representatives), including:
(iii) promptly furnishing to Parent and the Parent as promptly as reasonably practicable Financing Sources all financial statements and operational information (including consolidated financial statements for interim periods up until the Closing Date) that can be prepared without undue burden with respect to regarding the Company and its Subsidiary Subsidiaries as is reasonably requested by Parent (the “Required Information”), (iii) assisting in the preparation of schedules to collateral agreements by providing information of the Company Entities required to be made available on such schedules for purposes of the arrangement or consummation of the Financing, (iv) subject to any contractual agreement in effect, facilitating the pledging of collateral for the Financing, which shall not be required to be delivered or effective until at or promptly following the Effective Time, (v) subject to any contractual agreement in effect, obtaining the Payoff Letter, and the related lien releases, and instruments of termination or discharge, as applicable, required pursuant to Section 6.12, in each case which shall provide that, if sufficient funds are received by the financing sources under the Credit Agreement in order to pay off in full all obligations (other than the Excluded Obligations) in connection therewith or secured thereby, such release, termination and/or discharge shall be effective, and (vi) furnishing Parent as promptly as reasonably practical (and at least three (3) business days prior to the Closing Date) with all documentation and other information related to the Company and its Subsidiary required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, that has been reasonably requested in writing by Parent or its Financing Sources at least ten (10) business days prior to the Closing Date. The Company hereby consents to the use of its and its Subsidiary’s logos in connection with the Financing so long as such logos are used solely (i) in a manner that is not intended to or that is not reasonably likely to harm or disparage the Company or its Subsidiary or the reputation or goodwill of the Company or its Subsidiary and Parent;
(ii) solely in connection with a description make members of the Companysenior management, its business representatives and products or the Merger.
(b) Notwithstanding the requirements of Section 6.16(a) or anything in this Agreement to the contrary, (i) neither the Company nor any of its Affiliates or their respective Representatives shall be required to enter into, approve or perform (or commit to enter into, approve or perform) any certificate, document, agreement, or instrument, in each case which will be effective prior to the Effective Time, (ii) nothing herein shall require cooperation contemplated thereby to the extent it would interfere unreasonably with the business or operations advisors of the Company or any of its Affiliates or their respective AffiliatesSubsidiaries reasonably available for customary meetings (including accounting due diligence sessions), drafting sessions and sessions with rating agencies, otherwise cooperating with the marketing efforts for any of the Financing and assisting Parent in obtaining ratings as contemplated by the Financing;
(iii) none assisting Parent and the Financing Sources with the preparation of rating agency presentations, bank information memoranda, lender presentations, offering documents, offering memoranda, investor presentations and similar documents required in connection with any Financing, including any customary authorization letters reasonably required in connection therewith;
(iv) with respect to financial information and data derived from the Company’s historical books and records, assisting Parent with the preparation of pro forma financial information and pro forma financial statements of the Company nor any of and its Affiliates Subsidiaries to the extent required by SEC rules and regulations or their respective Representativesnecessary or reasonably requested by Parent or the Financing Sources, it being agreed that the Company will not be required to actually prepare any such pro forma financial information or pro forma financial statements or provide any information or assistance relating to (1A) pay the proposed debt and equity capitalization or commit any assumed interest rates, dividends (if any) and fees and expenses relating to pay such debt or equity capitalization, (B) any commitment post-Closing or pro forma cost savings, synergies, capitalization, ownership or other fee, (2) reimburse or incur pro forma adjustments desired to be incorporated into any costs or expenses or incur any other liability (including any guarantee, indemnity or pledge) information used in connection with the Financing or (C) any financial information related to Parent or any of its Subsidiaries or any adjustments that are not directly related to the Marketing Documents Merger;
(v) executing and delivering as of the Closing (but not prior to the Closing) any pledge and security documents, currency or interest hedging arrangements, other definitive financing documents, or other certificates or documents as may be reasonably requested by Parent or the Financing Sources (including a certificate of an authorized officer of the Company with respect to solvency matters) and otherwise reasonably facilitating the pledging of collateral and the granting of security interests in respect of the Financing, it being understood that such documents will not take effect until the Effective Time, provided that, for the avoidance of doubt, this Section 5.23(a)(v) shall not require the Company or any Company Stockholder to pledge, or grant any security interest in, any portion of the Aggregate Merger Consideration;
(3vi) provide causing its independent auditors to (A) provide, consistent with customary practice, (x) customary auditors consents and customary “comfort” letters (including “negative assurance” comfort and change period comfort) with respect to financial information relating to the Company and its Subsidiaries as reasonably requested by Parent or as necessary or customary for the Financing (including any registered offering of equity securities or offering or private placement of debt securities pursuant to Rule 144A under the Securities Act) and (y) reasonable assistance to Parent in connection with Xxxxxx’s preparation of pro forma financial data statements and information and (B) attend accounting due diligence sessions and drafting sessions;
(vii) furnishing Parent and the Financing Sources with lease operating statements with respect to the oil and gas reserves evaluated in the Company’s proved Hydrocarbon reserve report for the Oil & Gas Properties as of December 31, 2022 and as of September 30, 2023, and, to the extent the Closing Date has not occurred prior to February 15, 2024, as of December 31, 2023, prepared by Netherland Xxxxxx & Associates, Inc. or another independent petroleum engineering firm reasonably acceptable to Parent;
(viii) providing to Parent copies of any updates to the proved Hydrocarbon reserve report for the Oil & Gas Properties as of December 31, 2022 and as of September 30, 2023, and, to the extent the Closing Date has not occurred prior to February 15, 2024, as of December 31, 2023, prepared by Netherland Xxxxxx & Associates, Inc. or another independent petroleum engineering firm reasonably acceptable to Parent and obtaining from such independent petroleum engineering firm consents for the inclusion of such reports in bank information memorandum, offering memorandum or other marketing materials used in connection with any Financing;
(ix) subject to customary confidentiality arrangements, providing customary due diligence materials to the Financing Sources or their appropriate representatives;
(x) requesting customary payoff letters, Lien terminations and instruments of discharge, to be delivered pursuant to Section 5.22;
(xi) reasonably cooperating with the Financing Sources in connection with their evaluation of the Company and its Subsidiaries’ current assets, cash management and accounting systems, and policies and procedures relating thereto for the purpose of establishing collateral arrangements, and to the extent required in connection with any Financing, establish bank and other accounts and blocked account agreements and lock box arrangements in connection with the foregoing, provided that, such bank and other accounts, blocked account agreements and lock box arrangements shall be effective only upon the occurrence of the Closing; and
(xii) taking reasonable corporate (or organizational) actions, subject to and only effective upon the occurrence of the Closing, reasonably necessary to permit the consummation of any Financing; provided, that (1) nothing herein shall require such cooperation to the extent it would require the Company or its Subsidiaries to pay any fees, reimburse any expenses or give any indemnities prior to the Closing for which it will not receive reimbursement by or on behalf of Parent, or to give any indemnities or incur any liabilities other than indemnities, reimbursements and liabilities of the Required InformationCompany that are effective only after the Closing, (2) nothing herein shall require such cooperation from the Company or (4) provide any legal opinion or reliance letters or any certificate (in its Subsidiaries to the case extent it would unreasonably interfere with the ongoing operations of the Company or its Subsidiary Subsidiaries, (3) the Company and its Subsidiaries shall not be required to take any corporate or organizational action approving, or authorize, execute and deliver any document or contract relating to, any Financing, which in any case is not contingent upon the Closing or that would be required to be delivered effective prior to the Effective Time)Closing and no action, comfort letter liability or opinion obligation of the Company or its Subsidiaries under any such document shall be effective until the Closing, (4) nothing herein shall require cooperation or assistance from a Representative of the Company or any of its RepresentativesSubsidiaries to the extent such Representative is reasonably likely to incur any personal liability by providing such cooperation or assistance, (iv) nothing herein will involve any binding commitment by the Company, any of its Affiliates or any of their respective Representatives which commitment is not conditioned on the Effective Time and does not terminate without liability to the Company, its Affiliates and their respective Representatives upon the termination of this Agreement, and (v5) nothing herein will require the Company, any of its Subsidiaries or Affiliates or any of their respective Representatives to provide any information or take any action, the disclosure or taking of which would violate applicable Legal RequirementsApplicable Law, any fiduciary duty, any Contract contract, or obligation of confidentiality owing to a third third-party, or jeopardize the protection of the attorney-client privilege and (6) neither the Company nor any of its Affiliates shall be required to issue any offering documents, private placement memoranda, bank information memoranda, prospectuses or similar protections) held by documents in relation to any Financing, but any such documents may contain disclosure and financial statements reflecting the Company or any of its Affiliates; provided thatSubsidiaries as an obligor following the Closing. Notwithstanding anything to the contrary contained in this Section 5.23, the Company shall promptly (A) upon request, execute customary and reasonably appropriate with respect to the Company’s business, authorization and management representation letters to the extent required in connection with any Financing, (B) furnish and execute (as applicable) all documentation and other information required under applicable “know your customer” and anti-money laundering rules and regulations reasonably requested by Parent, (C) no later than five (5) Business Days prior to the Closing Date, if the Company does not provide or cause its Representatives to provide such access or such information in reliance on qualifies as a “legal entity customer” under the foregoingBeneficial Ownership Regulation, then the Company shall have delivered a certification regarding individual beneficial ownership solely to the extent expressly required by 31 C.F.R. §1010.230, and (1D) furnish to Parent audited or unaudited balance sheets and the related unaudited statements of operations, changes in stockholders’ equity and cash flows of the Company solely to the extent required for any Financing, (E) provide a written notice to Parent stating that it is withholding updates to the proved Hydrocarbon reserve report for the Oil & Gas Properties as of December 31, 2022, and if the Closing occurs on or after February 15, 2024, an additional proved Hydrocarbon reserve report for the Oil & Gas Properties as of December 31, 2023 prepared by Netherland Xxxxxx & Associates, Inc. or another independent petroleum engineering firm reasonably acceptable to Parent, in each case to the extent required for any Financing, and obtain from such access independent petroleum engineering firm consents for the inclusion of such reports in bank information memorandum, offering memorandum or such information other marketing materials used in connection with any Financing, and (2F) no later than three (3) Business Days prior to the Closing Date, all documentation and other information about the Company and its Subsidiaries as has been reasonably cooperate requested in writing at least five (at 5) Business Days prior to the request Closing Date by the Financing Sources that such Financing Sources reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act. The Company hereby consents to the use of Parentall of its and its Subsidiaries’ logos, names, service marks and trademarks in connection with the Financing, so long as such use (i) to provide the applicable access or information is in a way manner that would is not violate such applicable Legal Requirements, fiduciary duty intended to or Contract likely to harm or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1) disparage the Company or any Representative of its Subsidiaries or the reputation or goodwill of the Company or any of its Subsidiary to deliver any certificate or opinion or take any other action under this Section 6.16 that could reasonably be expected to result Subsidiaries and (ii) is solely in personal liability to such Representative; (2) the Board connection with a description of Directors (or any committee or subcommittee thereof) or the board of directors, managers, managing member or any similar controlling body of any Subsidiary of the Company to approve (or otherwise take any corporate or similar action with respect to) any financing (including the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) the Company and its Subsidiary to take any action that would conflict with or violate its organizational or governance documents or any applicable Legal Requirements, or result in the contravention of, or that could reasonably be expected to result in a violation of breach of, or default under, any agreement to which the Company or its Subsidiary is a party.
(c) Subject to any applicable Legal Requirements, all non-public or other confidential information provided by the Company, its Subsidiary business and products or any of their respective Representatives pursuant to the transactions contemplated by this Agreement will be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Purchaser will be permitted to disclose such information to any Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties to the Financing and to any underwriters, initial purchasers or placement agents in connection with the Financing (and, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; or (ii) are subject to other confidentiality undertakings reasonably satisfactory to the Company and of which the Company is a beneficiary.
(db) If the Closing does not occurParent shall promptly, promptly upon request by the Company, Parent will reimburse the Company for any all reasonable and documented and reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiary or Representatives in connection with the cooperation of the Company and its Subsidiary Subsidiaries contemplated by this Section 6.16 5.23.
(it being understood c) Parent shall indemnify the Company, each Subsidiary of the Company and agreed that each of their respective Affiliates (including Affiliates as of the reimbursement set forth date hereof who will cease to be Affiliates at the Effective Time) and their respective directors, officers, members, partners, members and employees and their heirs, successors and permitted assigns, each in this Section 6.16(d) shall not apply to their capacity as such, from, against and in respect of any feeslosses imposed on, costssustained, and expenses incurred or suffered by, or on behalf ofasserted against, the Company, its Subsidiary or any of its Representatives them, whether in connection with its ordinary course financial reporting requirements respect of third-party claims, direct claims or in otherwise, directly or indirectly relating to, arising out of or resulting from the arrangement of the Financing, any other financing and/or the provision of data that, in each case, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding this Section 6.16).
(e) The Parent shall indemnify, defend and hold harmless the Company Entities and their respective Representatives from and against any and all losses, damages, claims, interest, awards, judgments, penalties, costs and expenses suffered or incurred by any of them information utilized in connection with therewith to the Financing (including any action taken in accordance with this Section 6.16) and costs and expenses incurred in defending against the foregoingfullest extent permitted by Applicable Law, except to the extent such losses, damages, claims, costs or expenses losses arise from the willful breach of this Agreement or any misrepresentation or omission by the CompanyCompany with respect to information provided by the Company for such Financing.
(d) Until the completion of the Closing, as finally determined by a court of competent jurisdictionParent and Merger Sub shall use their respective reasonable best efforts to take, or from fraud cause to be taken, all actions, and to do, or cause to be done, all things necessary to: (i) comply with and maintain in full force and effect the Bridge Loan, (ii) satisfy (or obtain a waiver of), on a timely basis, all conditions and covenants to any funding under the part Bridge Loan and (iii) cause the Bridge Loan to fund to the extent necessary to permit Parent and Merger Sub to pay the Aggregate Cash Proceeds in full at the Closing. Neither Parent nor Merger Sub shall agree to or permit any amendments, supplements, replacements or other modifications to, obtain any replacement of, or grant any waivers of, any condition or other provision under the Bridge Loan without the prior written consent of the Company. In the event that (i) all or any portion of the Bridge Loan becomes or would reasonably be expected to become unavailable, (ii) Parent or Merger Sub becomes aware of any event or circumstance that would reasonably be expected to make the full amounts or any portion of the Bridge Loan unavailable to satisfy the funding of the Aggregate Cash Obligations on the Closing Date or (iii) any definitive agreement with respect to the Bridge Loan shall expire or be withdrawn, terminated, repudiated or rescinded, in whole or in part, for any reason, then Parent and Merger Sub shall promptly after the occurrence of such event, (A) notify the Company in writing thereof as promptly as practicable after obtaining knowledge thereof, (B) use their respective reasonable best efforts to arrange and obtain alternative debt and/or equity financing in an amount sufficient to enable Parent or Merger Sub to satisfy the payment of the Aggregate Cash Proceeds on the Closing Date, which alternative debt and/or equity financing shall not impose any terms that prevent, delay or impair the ability of Parent or Merger Sub to consummate the transactions contemplated hereby and (C) obtain and deliver a debt commitment letter and/or definitive financing documents to the Company with respect to such alternative financing arrangements, including true, correct and complete copies of any executed fee letters.
(e) Each of Parent and Xxxxxx Sub expressly acknowledges and agrees that neither the availability, the terms nor the obtaining of the Bridge Loan or any Financing is in any manner a condition to the Merger, the Closing or the obligations of Parent and/or Merger Sub to consummate the transactions contemplated hereby.
Appears in 1 contract
Samples: Merger Agreement (Talos Energy Inc.)
Financing Cooperation. (a) Subject During the period from the date of this Agreement to Section 6.16(bthe Closing Date, the parties hereto shall, subject to subsections (b), (c), (d) below, cooperate in good faith to implement any necessary, appropriate or desirable arrangements in connection with any financing in connection with the Transactions that may be obtained by or on behalf of Parent.
(b) The parties hereto acknowledge and agree that, prior to the Closing or termination Date, it may be necessary for the Company and/or Parent to enter into financing transactions (including, without limitation, the raising of this new financing, the refinancing of the Company Credit Agreement, the retirement, prepayment or redemption of the Company Credit Agreement and/or obtaining amendments, amendment and restatements, modifications, waivers or consents relating to the Company Credit Agreement) (any such financing transaction, a “Financing Transaction”). In connection with any Financing Transaction, the parties hereto shall, and shall cause its their Subsidiaries and their respective Representatives officers, directors and employees to, and shall use their reasonable best efforts to cause their respective accountants, consultants, investment bankers, legal counsel, agents, financial advisors and other advisors and representatives to, cooperate and use their reasonable best efforts to provide such information and documentation as may be necessary or reasonably cooperate with and reasonably assist Parent, at the Parent’s request, sole cost and expense, desirable in connection with arrangingthe structuring, obtaining marketing and syndicating execution of any Financing Transaction, including (i) participating in meetings and causing the conditions in the Financing Documents due diligence sessions and any commitment letters entered into rating agency presentations in connection with such Financing to be satisfiedTransaction and preparing customary materials in connection therewith, including using reasonable best efforts in (iii) assisting with, and furnishing information for the purposes of, with the preparation of customary prospectuses any portion of the disclosure in relation to such Financing Transaction that relates to the Merger or the Transactions (including any historical and pro forma financial information and any information operational data reasonably required under Article 18(2) of Commission Delegated Regulation (EU) 2019/980), offering documents, syndication documents and materials, including bank information memoranda and private placement memoranda, lender and investor presentations, rating agency materials and presentations and other customary marketing materials to be prepared in connection with the such Financing (all such documents and materials, collectively, the “Marketing Documents”) (it being understood and agreed that the Marketing Documents shall include (or otherwise be subject to) any customary exculpation language, as the case may be, with respect to the Company, its Affiliates and their respective Representatives), (ii) furnishing to the Parent as promptly as reasonably practicable financial statements and operational information (including consolidated financial statements for interim periods up until the Closing Date) that can be prepared without undue burden with respect to the Company and its Subsidiary as is reasonably requested by Parent (the “Required Information”Transaction), (iii) assisting in the preparation of schedules to executing and delivering any loan agreement, pledge and security agreement and other collateral agreements by providing information of the Company Entities required to documents, guarantees, indentures, other definitive financing documents, and other schedules, certificates, documents and legal opinions as may be made available on reasonably requested (provided that no such schedules for purposes of the arrangement or consummation of the Financing, (iv) subject to any contractual agreement in effect, facilitating the pledging of collateral for the Financing, which shall not documents will be required to be delivered or effective until at or promptly following the Effective Time, (v) subject to any contractual agreement in effect, obtaining the Payoff Letter, and the related lien releases, and instruments of termination or discharge, as applicable, required pursuant to Section 6.12, in each case which shall provide that, if sufficient funds are received by the financing sources under the Credit Agreement in order to pay off in full all obligations (other than the Excluded Obligations) in connection therewith or secured thereby, such release, termination and/or discharge shall be effective, and (vi) furnishing Parent as promptly as reasonably practical (and at least three (3) business days take effect prior to the Closing Date) with all documentation and other information related to the Company and its Subsidiary required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, that has been reasonably requested in writing by Parent or its Financing Sources at least ten (10) business days prior to the Closing Date. The Company hereby consents to the use of its and its Subsidiary’s logos in connection with the Financing so long as such logos are used solely (i) in a manner that is not intended to or that is not reasonably likely to harm or disparage the Company or its Subsidiary or the reputation or goodwill of the Company or its Subsidiary and (ii) solely in connection with a description of the Company, its business and products or the Merger.
(b) Notwithstanding the requirements of Section 6.16(a) or anything in this Agreement to the contrary, (i) neither the Company nor any of its Affiliates or their respective Representatives shall be required to enter into, approve or perform (or commit to enter into, approve or perform) any certificate, document, agreement, or instrument, in each case which will be effective prior to the Effective Time, (ii) nothing herein shall require cooperation contemplated thereby to the extent it would interfere unreasonably with the business or operations of the Company or any of its Affiliates or their respective Affiliates, (iii) none of the Company nor any of its Affiliates or their respective Representatives, will be required to (1) pay or commit to pay any commitment or other fee, (2) reimburse or incur any costs or expenses or incur any other liability (including any guarantee, indemnity or pledge) in connection with the Financing or the Marketing Documents prior to the Effective Time, (3) provide any financial data other than the Required Information, or (4) provide any legal opinion or reliance letters or any certificate (in the case of the Company or its Subsidiary that would be required to be delivered prior to the Effective Time), comfort letter or opinion of any of its Representatives, (iv) nothing herein will involve delivering, or procuring the delivery of, such information, certificates, authorization letters, comfort letters, representation letters and other documents as may be necessary or reasonably desirable by any binding commitment by the Companyparty to any such Financing Transaction (including, without limitation, any of its Affiliates or financial institutions appointed in any of their respective Representatives which commitment is not conditioned on the Effective Time and does not terminate without liability to the Company, its Affiliates and their respective Representatives upon the termination of this Agreement, and (v) nothing herein will require the Company, any of its Affiliates or any of their respective Representatives to provide any information or take any action, the disclosure or taking of which would violate applicable Legal Requirements, any fiduciary duty, any Contract or obligation of confidentiality owing to a third party, or jeopardize the protection of the attorney-client privilege (or similar protections) held by the Company or any of its Affiliates; provided that, if the Company does not provide or cause its Representatives to provide such access or such information in reliance on the foregoing, then the Company shall (1) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1) any Representative of the Company or its Subsidiary to deliver any certificate or opinion or take any other action under this Section 6.16 that could reasonably be expected to result in personal liability to such Representative; (2) the Board of Directors (or any committee or subcommittee thereof) or the board of directors, managers, managing member or any similar controlling body of any Subsidiary of the Company to approve (or otherwise take any corporate or similar action capacity with respect to) any financing (including the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) the Company and its Subsidiary to take any action that would conflict with or violate its organizational or governance documents or any applicable Legal Requirements, or result in the contravention of, or that could reasonably be expected to result in a violation of breach of, or default under, any agreement to which the Company or its Subsidiary is a party.
(c) Subject to any applicable Legal Requirements, all non-public or other confidential information provided by the Company, its Subsidiary or any of their respective Representatives pursuant to this Agreement will be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Purchaser will be permitted to disclose such information to any Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties to the Financing and to any underwritersTransaction). Parent shall promptly, initial purchasers or placement agents in connection with the Financing (and, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; or (ii) are subject to other confidentiality undertakings reasonably satisfactory to the Company and of which the Company is a beneficiary.
(d) If the Closing does not occur, promptly upon request by the Company, Parent will reimburse the Company for any all reasonable and documented and reasonable out-of-pocket costs and expenses (including reasonable and documented out-of-pocket attorneys’ fees) incurred by the Company or its any Company Subsidiary in connection with fulfilling its obligations under this Section 6.04.
(c) Notwithstanding anything to the cooperation of contrary in this Section 6.04, neither the Company and its Subsidiary contemplated nor Parent shall be required to (i) agree to pay any commitment or other similar fee, bear any cost or expense, incur any other liability or give any indemnities or guarantees to any third party or otherwise to take any similar action in connection with any Financing Transaction prior to the Closing, (ii) take any actions to the extent such actions would, in such party’s reasonable judgment, reasonably be expected to cause (x) any representation or warranty made by this Section 6.16 such party hereunder to be inaccurate or breached, (it being understood and agreed that y) the reimbursement failure of any closing condition set forth in Article VIII of this Agreement to be satisfied or any delay in the satisfaction of any such condition or (z) any other breach of this Agreement, (iii) enter into any Financing Transaction that is not conditioned upon the consummation of the Merger, (iv) disclose any information pursuant to this Section 6.16(d6.04 to the extent that such disclosure (A) is prohibited by applicable Law, (B) would cause a violation of any agreement to which the Company or any Company Subsidiary or Parent or any Parent Subsidiary, as applicable, is a party (provided that the Company or Parent, as applicable, shall use its reasonable best efforts to obtain the required consent of such third party to such access or disclosure) or (C) would be reasonably likely to risk a loss of legal privilege (provided, that the Company or Parent, as applicable, shall use its reasonable best efforts to allow for such access or disclosure (or as much of it as possible) in a manner that would not apply be reasonably likely to any feesrisk a loss of legal privilege).
(d) In the event that Parent has notified the Company at least five (5) Business Days prior to the Closing Date (or such shorter period as the Company may agree) that it intends to fully repay or cause to be fully repaid the Company Credit Agreement, coststhe Company shall, and expenses incurred byshall cause each Company Subsidiary to, or on behalf of, the Company, its Subsidiary or any of its Representatives in connection with its ordinary course financial reporting requirements or in the provision of data thatdeliver, in each case, was already prepared prior to the Closing Date, all notices and to take all other reasonable actions necessary to facilitate (A) the repayment in full on the Closing Date of all amounts and other obligations then outstanding under and (B) the termination (to the extent provided therein and pursuant to the terms thereof) on the Closing Date of (such repayments and terminations, the “Existing Credit Facilities Termination”) the Company Credit Agreement, including by providing no less than two (2) Business Days before the Closing Date to the Parent a payoff letter in customary form from the agent under the Company Credit Agreement (which, for the avoidance of doubt, may provide that such repayment and termination is conditioned upon the Closing), in form and substance reasonably satisfactory to Parent, which payoff letter shall, among other things, (i) indicate the total amount required to be paid to fully satisfy all principal, interest, prepayment premiums, penalties and any other monetary obligations then due and payable under the Company Credit Agreement (the “Payoff Amount”), (ii) provide that upon receipt of the Payoff Amount under each such payoff letter, such indebtedness and all related loan documents (or was being prepared by similar agreements) shall be terminated and (iii) provide that all Liens (if any) and guarantees in connection with the Company, its Subsidiary or its Representatives in Company Credit Agreement relating to the ordinary course Company and the Company Subsidiaries securing the obligations under the Company Credit Agreement shall be released and terminated upon receipt of business notwithstanding this Section 6.16)the Payoff Amount.
(e) The Parent shall indemnify, defend and hold harmless Mxxxxx Sub acknowledge and agree that the Company Entities and their respective Representatives from and against consummation of any and all losses, damages, claims, interest, awards, judgments, penalties, costs and expenses suffered or incurred by any of them in connection with the Financing (including any action taken in accordance with this Section 6.16) and costs and expenses incurred in defending against the foregoing, except Transaction is not a condition to the extent such losses, damages, claims, costs or expenses arise from the willful breach of this Agreement by the Company, as finally determined by a court of competent jurisdiction, or from fraud on the part of the CompanyClosing.
Appears in 1 contract
Financing Cooperation. (a) Subject Prior to Section 6.16(b), prior to Closing or the earlier of the Effective Time and the valid termination of this AgreementAgreement in accordance with ARTICLE VII, the Company shall, shall use its reasonable best efforts to provide (and shall cause each Subsidiary of the Company and direct its Subsidiaries and their respective Representatives to, to use reasonable best efforts to reasonably cooperate with and reasonably assist Parent, at the Parent’s request, sole cost and expense, provide) such cooperation in connection with arranging, obtaining and syndicating any Financing and causing the conditions in arrangement of the Financing Documents as is reasonably requested by Parent; provided, that the Company shall in no event be required to provide such assistance to the extent it would unreasonably interfere with the business or operations of the Company and any commitment letters entered into its Subsidiaries. Such assistance shall include using reasonable best efforts to assist Parent in connection with such Financing to be satisfiedarranging the Debt Financing, including using reasonable best efforts in to do the following, each of which shall be at Parent’s written request with reasonable prior notice and at Parent’s sole cost and expense:
(i) assisting withdeliver to Parent the Debt Financing Deliverables;
(ii) facilitate and assist in the preparation and negotiation of the Debt Financing Documents, including one or more credit agreements, pledge and security agreements, guarantees, certificates (including a solvency certificate) and other definitive financing documents as may be reasonably requested by Parent (including furnishing all (A) information relating to the Company and its Subsidiaries and their respective businesses to be included in any schedules thereto or in any perfection certificates and (B) stock certificates and any other pledged collateral to the extent held by the Company and its Subsidiaries); provided, that (x) the foregoing documentation (or, as applicable, the pledge of such pledged collateral) (other than the customary authorization letters described herein) shall be subject to the occurrence of the Closing and become effective no earlier than the Effective Time, and furnishing (y) in no event shall the Company or any of its officers, director or employees (other than Persons continuing in such roles after Closing) be required to approve, ratify or execute any of the Debt Financing Documents (other than the customary authorization letters described herein) prior to the consummation of the Merger (unless contingent on the consummation of the Merger);
(iii) make available to Parent, its advisors and its Financing Sources such financial and other pertinent information regarding the Company and each Subsidiary of the Company as may be reasonably requested by Parent, its advisors or its Financing Sources, including (I) the financial statements and other information necessary to satisfy the conditions set forth in paragraph 5 of Exhibit C of the Debt Commitment Letter, (II) unaudited financial statements of the Company for each fiscal quarter of the purposes ofCompany ended forty-five (45) days prior to the Closing and the audited financial statements of the Company for any fiscal year of the Company ended ninety (90) days prior to the Closing; (III) such information as is necessary to allow Parent, its advisors and its Financing Sources to prepare pro forma financial statements and (IV) customary authorization letters; and
(iv) assist with the preparation of customary prospectuses (including any pro forma financial information and any information required under Article 18(2) of Commission Delegated Regulation (EU) 2019/980), offering documents, syndication documents and materials, including bank information memoranda and private placement memoranda, lender and investor presentations, rating agency presentations, bank information memoranda, marketing materials and presentations other similar documents and other customary marketing materials in connection with the Debt Financing, participate in a reasonable number of meetings, presentations, road shows, drafting sessions and due diligence sessions (in each case, including via video conference) with providers or potential providers of the Debt Financing and ratings agencies and otherwise assist in the marketing efforts of Parent and its Financing Sources; provided, that nothing in this Section 5.19 shall require (all such documents and materials, collectively, the “Marketing Documents”) (it being understood and agreed that the Marketing Documents shall include (or otherwise be subject tow) any customary exculpation language, as the case may be, with respect to the Company, its Affiliates and their respective Representatives), (ii) furnishing to the Parent as promptly as reasonably practicable financial statements and operational information (including consolidated financial statements for interim periods up until the Closing Date) that can be prepared without undue burden with respect to the Company and its Subsidiary as is reasonably requested by Parent (the “Required Information”), (iii) assisting in the preparation of schedules to collateral agreements by providing information of the Company Entities required to be made available on such schedules for purposes of the arrangement or consummation of the Financing, (iv) subject to any contractual agreement in effect, facilitating the pledging of collateral for the Financing, which shall not be required to be delivered or effective until at or promptly following the Effective Time, (v) subject to any contractual agreement in effect, obtaining the Payoff Letter, and the related lien releases, and instruments of termination or discharge, as applicable, required pursuant to Section 6.12, in each case which shall provide that, if sufficient funds are received by the financing sources under the Credit Agreement in order to pay off in full all obligations (other than the Excluded Obligations) in connection therewith or secured thereby, such release, termination and/or discharge shall be effective, and (vi) furnishing Parent as promptly as reasonably practical (and at least three (3) business days prior to the Closing Date) with all documentation and other information related to the Company and its Subsidiary required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, that has been reasonably requested in writing by Parent or its Financing Sources at least ten (10) business days prior to the Closing Date. The Company hereby consents to the use of its and its Subsidiary’s logos in connection with the Financing so long as such logos are used solely (i) in a manner that is not intended to or that is not reasonably likely to harm or disparage the Company or its Subsidiary or the reputation or goodwill of the Company or its Subsidiary and (ii) solely in connection with a description of the Company, its business and products or the Merger.
(b) Notwithstanding the requirements of Section 6.16(a) or anything in this Agreement to the contrary, (i) neither the Company nor any of its Affiliates or their respective Representatives shall be required to enter into, approve or perform (or commit to enter into, approve or perform) any certificate, document, agreement, or instrument, in each case which will be effective prior to the Effective Time, (ii) nothing herein shall require cooperation contemplated thereby action to the extent it would (1) unreasonably interfere unreasonably with the business or operations of the Company or require the Company to agree to pay any fees, reimburse any expenses or give any indemnities, in any case prior to the Closing, for which Parent does not promptly reimburse or indemnify it, as the case may be, under this Agreement, (2) require the Company, or any of its Affiliates Subsidiaries or their respective AffiliatesRepresentatives to execute, deliver or enter into any Debt Financing Document (other than the customary authorization letters described herein (provided that any confidential information memoranda or marketing materials distributed in connection therewith shall 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 such confidential information memoranda or marketing materials)) prior to the Closing and consummation of the Merger, or (3) require the Company to deliver or cause the delivery of any Debt Financing Document or take any other action prior to the Closing and consummation of the Merger that would reasonably be expected to result in liability to the Company or its Representatives in connection with the Financing, (iiix) none any of the board of directors (or other similar governing body) of the Company nor or any of its Affiliates Subsidiaries (other than Persons continuing in such roles after Closing) to adopt resolutions approving the Debt Financing Documents prior to the Closing and consummation of the Merger (and any such adoption or approval at Closing shall be performed by such board of directors (or other similar governing body) as constituted after the Effective Time and Closing), and (y) the Company or any of its Subsidiaries to provide any information to the extent it would (1) violate applicable Law or the provisions of any Contract not entered into in contemplation hereof (including any confidentiality agreement or similar agreement or arrangement) to which the Company or any of its Subsidiaries is a party, (2) jeopardize any attorney-client or other legal privilege or (3) violate any applicable confidentiality obligation of the Company or any of its Subsidiaries not entered into in contemplation hereof so long as that the Company provides Parent written notice of any information so withheld and reasonably cooperates with Parent in seeking to allow disclosure of such information in a manner that is not reasonably likely to violate such applicable Law or Contract, jeopardize such attorney-client or other legal privilege or violate any such confidentiality obligation.
(b) Parent shall indemnify and hold harmless the Company and its Subsidiaries, and each of their respective Representatives, will be required to (1) pay or commit to pay from and against any commitment or other fee, (2) reimburse or incur any costs or expenses or incur any other liability (including any guarantee, indemnity or pledge) and all losses incurred in connection with the Financing or the Marketing Documents prior any information, assistance or activities provided under this Section 5.19, except to the Effective Time, extent arising from (3i) provide any financial data other than the Required Information, material inaccuracy of any historical information furnished in writing by or (4) provide any legal opinion or reliance letters or any certificate (in the case on behalf of the Company or its Subsidiary that would be required to be delivered prior to Subsidiaries, including financial statements or (ii) the Effective Time)gross negligence, comfort letter fraud, bad faith or opinion willful misconduct of any of its Representatives, (iv) nothing herein will involve any binding commitment by the Company, any of its Affiliates Subsidiaries or any of their respective Representatives which commitment is not conditioned on the Effective Time and does not terminate without liability to the Company, its Affiliates and their respective Representatives upon the termination of this Agreement, and (v) nothing herein will require the Company, any of its Affiliates or any of their respective Representatives to provide any information or take any action, the disclosure or taking of which would violate applicable Legal Requirements, any fiduciary duty, any Contract or obligation of confidentiality owing to a third party, or jeopardize the protection of the attorney-client privilege (or similar protections) held by the Company or any of its Affiliates; provided that, if the Company does not provide or cause its Representatives to provide such access or such information in reliance on the foregoing, then the Company Representatives. Parent shall (1) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1) any Representative of the Company or its Subsidiary to deliver any certificate or opinion or take any other action under this Section 6.16 that could reasonably be expected to result in personal liability to such Representative; (2) the Board of Directors (or any committee or subcommittee thereof) or the board of directors, managers, managing member or any similar controlling body of any Subsidiary of the Company to approve (or otherwise take any corporate or similar action with respect to) any financing (including the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) reimburse the Company and its Subsidiary to take Subsidiaries for any action that would conflict with or violate its organizational or governance documents or any applicable Legal Requirementsreasonable, or result in the contravention documented out-of, or that could reasonably be expected to result in a violation of breach of, or default under, any agreement to which -pocket third party costs and expenses incurred by the Company and its Subsidiaries and each of their Representatives in connection with the Financing or its Subsidiary is a partysuch assistance under this Section 5.19.
(c) Subject The Company hereby consents to any applicable Legal Requirements, all non-public or (i) the use of the financial statements and other confidential information provided by under this Section 5.19 in connection with the Debt Financing and (ii) the use of the logos of the Company and each of its Subsidiaries in connection with the Debt Financing; provided, that such logos shall be used solely in a manner that would reasonably be expected to harm, disparage or otherwise adversely affect the Company and/or its Subsidiaries or their reputation or goodwill.
(d) Notwithstanding anything to the contrary herein, it is understood and agreed that the condition precedent set forth in Section 6.2(b), as applied to the Company’s obligations under this Section 5.19, shall be deemed to be satisfied unless a proximate cause of the Debt Financing having not been obtained is (i) the Company, its Subsidiary Subsidiaries or any of their respective Representatives pursuant having breached the obligations under this Section 5.19 in any material respect, (ii) Parent having notified the Company of such breach in writing, detailing reasonable steps that comply with this Section 5.19 in order to this Agreement will cure such breach and (iii) the Company, its Subsidiaries or their respective Representatives having not taken such steps or otherwise cured such breach a reasonably sufficient time prior to the End Date for Parent (in its reasonable determination) to consummate the Debt Financing.
(e) All Information (as such term is defined in the Confidentiality Agreement) obtained by Parent or its representatives shall be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Purchaser will shall be permitted to disclose such information to any Parent’s or its Affiliates’ Financing Sources or Sources, rating agencies and prospective equity or debt financing sources and other financial institutions lenders and investors that are or may become parties to the Financing and to any underwriters, initial purchasers or placement agents in connection with the arrangement and/or syndication of the Financing (and, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; or (ii) are subject to other each prospective recipient’s entering into customary confidentiality undertakings reasonably satisfactory with respect to the Company and of which the Company is a beneficiarysuch information.
(d) If the Closing does not occur, promptly upon request by the Company, Parent will reimburse the Company for any documented and reasonable out-of-pocket costs and expenses (including attorneys’ fees) incurred by the Company or its Subsidiary in connection with the cooperation of the Company and its Subsidiary contemplated by this Section 6.16 (it being understood and agreed that the reimbursement set forth in this Section 6.16(d) shall not apply to any fees, costs, and expenses incurred by, or on behalf of, the Company, its Subsidiary or any of its Representatives in connection with its ordinary course financial reporting requirements or in the provision of data that, in each case, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding this Section 6.16).
(e) The Parent shall indemnify, defend and hold harmless the Company Entities and their respective Representatives from and against any and all losses, damages, claims, interest, awards, judgments, penalties, costs and expenses suffered or incurred by any of them in connection with the Financing (including any action taken in accordance with this Section 6.16) and costs and expenses incurred in defending against the foregoing, except to the extent such losses, damages, claims, costs or expenses arise from the willful breach of this Agreement by the Company, as finally determined by a court of competent jurisdiction, or from fraud on the part of the Company.
Appears in 1 contract
Financing Cooperation. (a) Subject Prior to Section 6.16(b), prior to Closing or termination of this Agreementthe Acceptance Time, the Company shallshall provide, and shall cause its Subsidiaries to provide, and shall use its commercially reasonable efforts to cause its and their respective Representatives toofficers, use employees and advisors, including legal and accounting, to provide reasonable best efforts to reasonably cooperate with and reasonably assist Parent, at the Parent’s request, sole cost and expense, cooperation requested by Parent in connection with arranging, obtaining and syndicating the arrangement of any Financing and causing the conditions in the Financing Documents and any commitment letters entered into debt or equity financing transaction by Parent in connection with such Financing to be satisfiedthe Merger (the “Prospective Financing”), including using its commercially reasonable best efforts to (a) provide financial and other relevant information regarding the Company and its Subsidiaries that is reasonably necessary and cooperate in (i) assisting with, and furnishing information for the purposes of, the preparation of customary prospectuses (including any pro forma financial information and any for the Merger (including information required under Article 18(2) to be used in the preparation of Commission Delegated Regulation (EU) 2019/980)an information package, offering documentsmemorandum, syndication documents prospectus, prospectus supplement or similar document regarding the business, assets, operations, financial projections and materialsprospects of Parent and the Company customary for such financing or reasonably necessary for the completion of the Prospective Financing) as may be required to obtain the Prospective Financing, including bank information memoranda and private placement memoranda, lender and investor presentations, rating agency materials and presentations and other customary marketing materials in connection (b) cooperate with the marketing efforts for the Prospective Financing (all such documents and materials, collectively, the “Marketing Documents”) (it being understood and agreed that the Marketing Documents shall include (or otherwise be subject to) any customary exculpation language, as the case may be, with respect including consenting to the Company, its Affiliates and their respective Representatives), (ii) furnishing to reasonable use of the Parent as promptly as reasonably practicable financial statements and operational information (including consolidated financial statements for interim periods up until the Closing Date) that can be prepared without undue burden with respect to logos of the Company and its Subsidiary as is reasonably requested by Parent (the “Required Information”Subsidiaries), (iiic) assisting participate as appropriate in meetings, presentations, road shows, drafting sessions, and sessions with the preparation of schedules rating agencies as are reasonably necessary to collateral agreements by providing information of consummate the Company Entities required to be made available on such schedules for purposes of the arrangement or consummation of the Prospective Financing, (ivd) subject to any contractual agreement in effect, facilitating the pledging of collateral for the Financing, which shall not be required to be delivered or effective until at or promptly following the Effective Time, (v) subject to any contractual agreement in effect, obtaining the Payoff Letter, assist Parent and the related lien releases, and instruments of termination or discharge, as applicable, required pursuant to Section 6.12, in each case which shall provide that, if sufficient funds are received by the its financing sources under in the Credit Agreement in order to pay off in full all obligations (other than the Excluded Obligations) in connection therewith amendment or secured thereby, such release, termination and/or discharge shall be effective, and (vi) furnishing Parent as promptly as reasonably practical (and at least three (3) business days prior to the Closing Date) with all documentation and other information related to the Company and its Subsidiary required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, that has been reasonably requested in writing by Parent or its Financing Sources at least ten (10) business days prior to the Closing Date. The Company hereby consents to the use of its and its Subsidiary’s logos in connection with the Financing so long as such logos are used solely (i) in a manner that is not intended to or that is not reasonably likely to harm or disparage the Company or its Subsidiary or the reputation or goodwill of the Company or its Subsidiary and (ii) solely in connection with a description of the Company, its business and products or the Merger.
(b) Notwithstanding the requirements of Section 6.16(a) or anything in this Agreement to the contrary, (i) neither the Company nor any of its Affiliates or their respective Representatives shall be required to enter into, approve or perform (or commit to enter into, approve or perform) any certificate, document, agreementof, or instrument, in each case which will be effective prior to obtaining any relevant waiver from the Effective Time, (ii) nothing herein shall require cooperation contemplated thereby to the extent it would interfere unreasonably with the business lenders or operations counterparties of the Company or any of its Affiliates or their respective Affiliates, (iii) none of the Company nor any of its Affiliates or their respective Representatives, will be required to (1) pay or commit to pay any commitment or other fee, (2) reimburse or incur any costs or expenses or incur any other liability (including any guarantee, indemnity or pledge) Subsidiaries in connection with the Financing or the Marketing Documents prior to the Effective Time, (3) provide any financial data other than the Required Information, or (4) provide any legal opinion or reliance letters or any certificate (in the case of the Company or its Subsidiary that would be required to be delivered prior to the Effective Time), comfort letter or opinion of any of its Representatives, (iv) nothing herein will involve any binding commitment by the Companyrelation to, any of its Affiliates or any of their respective Representatives which commitment is not conditioned on the Effective Time and does not terminate without liability to the Company, its Affiliates and their respective Representatives upon the termination of this Agreement, and (v) nothing herein will require the Company, any of its Affiliates or any of their respective Representatives to provide any information or take any action, the disclosure or taking of which would violate applicable Legal Requirements, any fiduciary duty, any Contract or obligation of confidentiality owing to a third party, or jeopardize the protection of the attorney-client privilege (or similar protections) held by the Company ’s or any of its Affiliates; provided thatSubsidiaries’ existing credit agreements, if the Company does not provide currency or cause its Representatives to provide such access or such information in reliance on the foregoing, then the Company shall (1) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1) any Representative of the Company or its Subsidiary to deliver any certificate or opinion or take any other action under this Section 6.16 that could reasonably be expected to result in personal liability to such Representative; (2) the Board of Directors (or any committee or subcommittee thereof) or the board of directors, managers, managing member or any similar controlling body of any Subsidiary of the Company to approve (or otherwise take any corporate or similar action with respect to) any financing (including the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) the Company and its Subsidiary to take any action that would conflict with or violate its organizational or governance documents or any applicable Legal Requirementsinterest hedging agreements, or result in other agreements (including, for the contravention of, or that could reasonably be expected to result in a violation avoidance of breach of, or default underdoubt, any agreement to which the Company or its Subsidiary is a party.
(c) Subject to any applicable Legal Requirements, all non-public or other confidential information provided by the Company, its Subsidiary or any of their respective Representatives pursuant to this Agreement will be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Purchaser will be permitted to disclose such information to any Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties to the Financing and to any underwriters, initial purchasers or placement agents in connection with the Financing (andarrangements creating security interests), in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; or (ii) are subject to other confidentiality undertakings reasonably on terms satisfactory to the Company Parent and of which the Company is a beneficiary.
(d) If the Closing does not occur, promptly upon request that are reasonably requested by the Company, Parent will reimburse the Company for any documented and reasonable out-of-pocket costs and expenses (including attorneys’ fees) incurred by the Company or its Subsidiary in connection with the cooperation Prospective Financing and conditioned upon the occurrence of the Company and its Subsidiary contemplated by this Section 6.16 (Acceptance Time, in each case it being understood and agreed that the reimbursement set forth in this Section 6.16(d) shall not apply to any fees, costs, information and expenses incurred by, or on behalf of, the Company, its Subsidiary or any of its Representatives in connection with its ordinary course financial reporting requirements or in the provision of data that, in each case, was already prepared or was being prepared documents provided by the Company, Company and its Subsidiary or its Representatives in the ordinary course of business notwithstanding this Section 6.16).
Subsidiaries may be delivered to agents and lenders and their respective representatives and (e) The Parent shall indemnify, defend and hold harmless the Company Entities and their respective Representatives from and against any and all losses, damages, claims, interest, awards, judgments, penalties, costs and expenses suffered or incurred by any of them in connection with the Financing (including any action taken in accordance with this Section 6.16) and costs and expenses incurred in defending against the foregoing, except subject to the extent such lossesappropriate confidentiality undertakings, damages, claims, costs cooperate reasonably with Parent’s financing sources’ or expenses arise from the willful breach of this Agreement by the Companyunderwriters’, as finally determined by a court of competent jurisdictionapplicable, or from fraud on the part of the Company.due
Appears in 1 contract
Samples: Merger Agreement (Genzyme Corp)
Financing Cooperation. (a) Subject Prior to Section 6.16(b), prior to Closing or the earlier of the Effective Time and the valid termination of this AgreementAgreement in accordance with Article VIII, the Company shall, and shall cause its Subsidiaries and their respective Representatives to, use its commercially reasonable best efforts to provide (or cause its Subsidiaries to provide) such cooperation in connection with the arrangement of the Financing as is reasonably cooperate requested by Parent; provided, that the Company shall in no event be required to provide (or cause its Subsidiaries to provide) such assistance that in the good faith judgment of the Company shall unreasonably interfere with and reasonably its or its Subsidiaries’ business operations. Such assistance shall include using its commercially reasonable efforts to assist ParentParent in connection with arranging the Debt Financing, including using commercially reasonable efforts to do the following, each of which shall be at the Parent’s request, written request with reasonable prior notice and at Parent’s sole cost and expense, in connection with arranging, obtaining and syndicating any Financing and causing the conditions in the Financing Documents and any commitment letters entered into in connection with such Financing to be satisfied, including using reasonable best efforts in :
(i) assisting with, and furnishing information for deliver to Parent the purposes of, the preparation of customary prospectuses (including any pro forma financial information and any information required under Article 18(2) of Commission Delegated Regulation (EU) 2019/980), offering documents, syndication documents and materials, including bank information memoranda and private placement memoranda, lender and investor presentations, rating agency materials and presentations and other customary marketing materials in connection with the Debt Financing (all such documents and materials, collectively, the “Marketing Documents”) (it being understood and agreed that the Marketing Documents shall include (or otherwise be subject to) any customary exculpation language, as the case may be, with respect to the Company, its Affiliates and their respective Representatives), Deliverables; and
(ii) furnishing to facilitate and assist in the Parent as promptly as reasonably practicable financial statements preparation and operational information negotiation of the Debt Financing Documents, including one or more credit agreements, pledge and security agreements, guarantees, certificates (including consolidated financial statements for interim periods up until the Closing Datea solvency certificate) that can and other definitive financing documents as may be prepared without undue burden with respect reasonably requested by Parent (including furnishing all (A) information relating to the Company and its Subsidiary as is reasonably requested Subsidiaries and their respective businesses to be included in any schedules thereto or in any perfection certificates and (B) stock certificates and any other pledged collateral to the extent held by Parent (the “Required Information”), (iii) assisting in the preparation of schedules to collateral agreements by providing information of the Company Entities required to be made available on such schedules for purposes of and its Subsidiaries); provided that (x) the arrangement or consummation of the Financing, foregoing documentation (iv) subject to any contractual agreement in effect, facilitating the pledging of collateral for the Financing, which shall not be required to be delivered or effective until at or promptly following the Effective Time, (v) subject to any contractual agreement in effect, obtaining the Payoff Letter, and the related lien releases, and instruments of termination or dischargeor, as applicable, required pursuant to Section 6.12, in each case which shall provide that, if sufficient funds are received by the financing sources under the Credit Agreement in order to pay off in full all obligations (other than the Excluded Obligationspledge of such pledged collateral) in connection therewith or secured thereby, such release, termination and/or discharge shall be effective, subject to the occurrence of the Closing Date and (vi) furnishing Parent as promptly as reasonably practical (and at least three (3) business days prior to become effective no earlier than the Closing Date, (y) with all documentation and other information related cooperating in satisfying the conditions precedent set forth in any definitive agreements relating to the Company and its Subsidiary required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, that has been reasonably requested in writing by Parent or its Debt Financing Sources at least ten (10) business days prior to the Closing Date. The Company hereby consents to extent satisfaction thereof requires the use of its and its Subsidiary’s logos in connection with cooperation, or is within the Financing so long as such logos are used solely (i) in a manner that is not intended to or that is not reasonably likely to harm or disparage the Company or its Subsidiary or the reputation or goodwill of the Company or its Subsidiary and (ii) solely in connection with a description of control of, the Company, its business Subsidiaries or their respective representative and products (z) in no event shall the Company or any of its officers, director or employees be required to approve, ratify or execute any of the Debt Financing Documents prior to consummation of the Merger (unless contingent on the consummation of the Merger.
); provided that (b) Notwithstanding the requirements of Section 6.16(a) or anything in this Agreement to the contrary, (iv) neither the Company nor any of its Affiliates or their respective Representatives shall will be required to enter into, approve or perform make any filings with the SEC in connection with the Financing (or commit to enter into, approve or perform) any certificate, document, agreement, or instrument, in each case which will be effective prior to other than the Effective TimeProxy Statement and Schedule 13E-3), (iiw) nothing herein in this Section 6.16 shall require cooperation contemplated thereby any such action to the extent it it
would (1) unreasonably interfere unreasonably with the business or operations of the Acquired Companies or require the Acquired Companies to agree to pay any fees, reimburse any expenses or give any indemnities, in any case prior to the Closing, for which Parent does not promptly reimburse or indemnify it, as the case may be, under this Agreement or (2) require the Company, any Company or any of its Affiliates Party or their respective AffiliatesRepresentatives or financing sources to execute, deliver or enter into, or perform any Debt Financing Document prior to the Closing, (iiix) none of the board of directors (or other similar governing body) of any Acquired Company nor any of its Affiliates or their respective Representatives, will shall be required to adopt resolutions approving the Debt Financing Documents prior to the Closing and consummation of the Merger (and any such adoption or approval at Closing shall be performed by such board of directors (or other similar governing body) as constituted after the Effective Time and Closing), (y) the Company’s obligations under this Section 6.16 shall be subject to the Financing Related Persons (as applicable) being bound by confidentiality agreements in accordance with customary market practice, and (z) none of the Acquired Companies shall be required to provide any information to the extent it would (1) pay or commit cause significant competitive harm to pay any commitment or other feeAcquired Company if the Transactions are not consummated, (2) reimburse violate Applicable Law or incur the provisions of any costs or expenses or incur any other liability Contract (including any guaranteeconfidentiality agreement or similar agreement or arrangement) to which any Acquired Company is a party, indemnity (3) jeopardize any attorney-client or pledgeother legal privilege or (4) violate any applicable confidentiality obligation of any Acquired Company so long as that the Company provides Parent written notice of any information so withheld and reasonably cooperates with Parent in seeking to allow disclosure of such information in a manner that is not reasonably likely to cause such competitive harm, violate Applicable Law or Contract, jeopardize such attorney-client or other legal privilege or violate any such confidentiality obligation.
(b) The Company shall have the right to review and comment on marketing materials used in connection with the arrangement of the Debt Financing or the Marketing Documents prior to the Effective Time, dissemination of such materials to potential lenders or other counterparties to any proposed financing transaction (3or filing with any Governmental Authority) provide any financial data other than the Required Information, or (4) provide any legal opinion or reliance letters or any certificate (and no such materials shall contain information that would result in the case of requirement to make any filing with the SEC; provided, that the Company or shall communicate in writing its Subsidiary that would 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. The Company shall not be required to be delivered prior agree to any contractual obligation relating to the Effective Time), comfort letter or opinion of any of its Representatives, (iv) nothing herein will involve any binding commitment by the Company, any of its Affiliates or any of their respective Representatives which commitment Financing that is not conditioned on upon the Effective Time Closing and that does not terminate without liability to the Company, Company and its Affiliates and their respective Representatives upon the termination of this Agreement, and (v) nothing herein will require the Company, any of its Affiliates or any of their respective Representatives . The Company shall not be required to provide any information or take any action, the disclosure or taking of which would violate applicable Legal Requirements, any fiduciary duty, any Contract or obligation of confidentiality owing to a third party, or jeopardize the protection of the attorney-client privilege (or similar protections) held by the Company or any of its Affiliates; provided that, if the Company does not provide deliver or cause its Representatives to provide such access or such information in reliance on the foregoing, then the Company shall (1) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1) any Representative of the Company or its Subsidiary to deliver any certificate or opinion or take any other action under this Section 6.16 that could reasonably be expected to result in personal liability to such Representative; (2) the Board of Directors (or any committee or subcommittee thereof) or the board of directors, managers, managing member or any similar controlling body delivery of any Subsidiary of the Company to approve (legal opinions, authorization and representation letters or otherwise take any corporate or similar action with respect to) any financing (including the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) the Company and its Subsidiary to take any action that would conflict with or violate (in its organizational or governance documents or any applicable Legal Requirements, or good faith determination) could result in the contravention of, or that could reasonably be expected liability to result in a violation of breach of, or default under, any agreement to which the Company it or its Subsidiary is a partyofficers or directors in connection with the Financing.
(c) Subject to any applicable Legal Requirements, all non-public or other confidential information provided by the Company, its Subsidiary or any of their respective Representatives pursuant to this Agreement will be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Purchaser will be permitted to disclose such information to any Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties to the Financing and to any underwriters, initial purchasers or placement agents in connection with the Financing (and, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; or (ii) are subject to other confidentiality undertakings reasonably satisfactory to the Company and of which the Company is a beneficiary.
(d) If the Closing does not occur, promptly upon request by the Company, Parent will reimburse the Company for any documented and reasonable out-of-pocket costs and expenses (including attorneys’ fees) incurred by the Company or its Subsidiary in connection with the cooperation of the Company and its Subsidiary contemplated by this Section 6.16 (it being understood and agreed that the reimbursement set forth in this Section 6.16(d) shall not apply to any fees, costs, and expenses incurred by, or on behalf of, the Company, its Subsidiary or any of its Representatives in connection with its ordinary course financial reporting requirements or in the provision of data that, in each case, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding this Section 6.16).
(e) The Parent shall indemnify, defend indemnify and hold harmless the Company Entities Acquired Companies, and each of their respective Representatives directors, officers and employees, from and against any and all losses, damages, claims, interest, awards, judgments, penalties, costs and expenses suffered or losses incurred by any of them in connection with the Financing (including or any action taken information, assistance or activities provided in accordance with this Section 6.16) and costs and expenses incurred in defending against the foregoingconnection therewith, except to the extent such lossesarising from (i) any material inaccuracy of any historical information furnished in writing by or on behalf of the Acquired Companies, damagesincluding financial statements or (ii) the gross negligence, claimsbad faith, willful misconduct or intentional misrepresentation of the Acquired Companies or any of their respective employees or Representatives. Parent shall reimburse the Acquired Companies for any reasonable, documented out-of-pocket third party costs or and expenses arise from the willful breach of this Agreement incurred by the CompanyAcquired Companies and each of their respective directors, officers and employees in connection with the Financing or such assistance.
(d) Notwithstanding anything to the contrary herein, it is understood and agreed that the condition precedent set forth in Section 7.02(b), as finally determined by applied to the Company’s obligations under this Section 6.16, shall be deemed to be satisfied unless the Debt Financing has not been obtained as a court of competent jurisdiction, or from fraud on the part direct result of the Company’s Willful Breach of its obligations under this Section 6.16.
Appears in 1 contract
Financing Cooperation. (a) Subject to Section 6.16(b), prior to Closing or termination of this Agreement, the The Company shall, and shall cause each of its Subsidiaries and their respective Representatives to, and shall use its reasonable best efforts to reasonably cooperate with cause its and reasonably assist its Subsidiaries’ respective officers, managers, employees, agents, consultants, advisors, accountants, financial advisors, legal counsel and other representatives to, provide to Parent, at the Parent’s request, sole cost and expense, all reasonable cooperation on a timely basis as may be reasonably requested by Parent to assist the Parent in the arrangement of any bank debt financing or any capital markets debt financing for the purposes of financing the payment of any amounts contemplated by this Agreement (the “Financing”), including the following:
(i) furnishing such financial statements and other financial data and other information relating to the Company and its Subsidiaries requested by Parent as may be reasonably necessary or advisable to consummate the Financing, including financial statements, financial data, audit reports and other information (v) reasonably necessary to assist Parent in its preparation of materials relating to the Company and its Subsidiaries for presentations to any rating agency, (w) reasonably necessary to assist Parent in the preparation of one or more confidential information memoranda, prospectuses, registration statements, offering memoranda and other marketing and syndication materials reasonably requested by Parent or any of its Subsidiaries, (x) of the type and form required by Regulation S-X and Regulation S-K under the Securities Act for a registered public offering of debt securities on Form S-3, (y) of a type and form customarily included in offerings of debt securities under Rule 144A of the Securities Act, or (z) as otherwise reasonably requested in connection with arranging, obtaining and syndicating any Financing and causing the conditions in the Financing Documents and any commitment letters entered into or as otherwise necessary in order to assist in receiving customary “comfort” (including “negative assurance” comfort) from independent accountants in connection with such Financing offerings of debt securities in connection with the Financing; provided that the Company’s sole obligation with respect to be satisfied, including using reasonable best efforts in (i) assisting with, and furnishing information for the purposes of, the preparation of customary prospectuses (including any pro forma financial information and financial statements for inclusion in any confidential information required under Article 18(2memorandum, prospectus, offering memorandum or other marketing or syndication material shall be as set forth in clause (vi) of Commission Delegated Regulation this Section 6.18(a);
(EUii) 2019/980), offering documents, using reasonable best efforts to cause its independent accountants to cooperate with Parent’s financing sources consistent with their customary practice and provide customary accountants’ “comfort letters” (including customary “negative assurances”) and customary consents to the inclusion of audit reports in marketing and syndication documents and materials, including bank information memoranda and private placement memoranda, lender and investor presentations, rating agency materials and presentations and other customary marketing materials material in connection with the Financing;
(iii) authorizing the reasonable use by Parent and its Subsidiaries of the Company’s and its Subsidiaries’ logos for syndication and underwriting, as applicable, of the Financing (all such documents subject to advance review of and materials, collectively, the “Marketing Documents”) (it being understood and agreed that the Marketing Documents shall include (or otherwise be subject to) any customary exculpation language, as the case may be, consultation with respect to such use); provided that such logos are used solely in a manner that is reasonable and customary for such purposes and that is not intended to, or reasonably likely to, harm or disparage the Company, Company or any of its Affiliates and Subsidiaries or the reputation or goodwill of the Company or any of its Subsidiaries or any of their respective Representatives)products, services or intellectual property rights;
(iiiv) furnishing to the Parent participating in a reasonable and limited number of meetings, presentations and road shows with prospective lenders and investors and in drafting sessions and due diligence sessions, as promptly as reasonably practicable financial statements and operational applicable;
(v) providing customary information (including consolidated financial statements for interim periods up until the Closing Date) that can be prepared without undue burden with respect to regarding the Company and its Subsidiary as is reasonably requested by Parent (the “Required Information”), (iii) assisting in the preparation of schedules to collateral agreements by providing information of the Company Entities required to be made available on such schedules for purposes of the arrangement or consummation of the Financing, (iv) subject to any contractual agreement in effect, facilitating the pledging of collateral for the Financing, which shall not be required to be delivered or effective until at or promptly following the Effective Time, (v) subject to any contractual agreement in effect, obtaining the Payoff Letter, and the related lien releases, and instruments of termination or discharge, as applicable, required pursuant to Section 6.12, in each case which shall provide that, if sufficient funds are received by the financing sources under the Credit Agreement in order to pay off in full all obligations (other than the Excluded Obligations) in connection therewith or secured thereby, such release, termination and/or discharge shall be effective, and (vi) furnishing Parent as promptly as reasonably practical (and at least three (3) business days prior to the Closing Date) with all documentation and other information related to the Company and its Subsidiary Subsidiaries required by regulatory authorities Governmental Entities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act, that has been Act of 2001;
(vi) providing information reasonably necessary to assist Parent with the preparation of pro forma financial information and financial statements to the extent required by the rules and regulations of the SEC; and
(vii) taking other actions ancillary to the Financing as may be reasonably requested in writing by Parent the Parent; provided that neither the Company, its Subsidiaries nor any of their respective directors or its Financing Sources at least ten officers shall be required to (10x) business days enter into any document or instrument prior to the Closing Date. The Company hereby consents to the use of its and its Subsidiary’s logos in connection with the Financing so long as such logos are used solely (i) in a manner Date that is not intended to contingent on the occurrence of the Closing (other than one or more customary authorization and representation letters), (y) take any action that is not reasonably would be likely to harm result in personal liability, or disparage (z) pass resolutions or consents to approve or authorize the Company execution of the Financing or its Subsidiary deliver any certificate, document, instrument or agreement (other than one or more customary authorization and representation letters) or agree to any change or modification of any existing certificate, document, instrument or agreement, in each case, prior to the reputation or goodwill Closing; provided, further, that none of the Company or its Subsidiary and (ii) solely in connection with a description of the Company, its business and products or the Merger.
(b) Notwithstanding the requirements of Section 6.16(a) or anything in this Agreement to the contrary, (i) neither the Company nor any of its Affiliates or their respective Representatives Subsidiaries shall be required to enter into, approve or perform (or commit to enter into, approve or perform) any certificate, document, agreement, or instrument, in each case which will be effective prior to the Effective Time, (ii) nothing herein shall require cooperation contemplated thereby to the extent it would interfere unreasonably with the business or operations of the Company or any of its Affiliates or their respective Affiliates, (iii) none of the Company nor any of its Affiliates or their respective Representatives, will be required to (1) pay or commit agree to pay any commitment or other feesimilar fee prior to the Closing, (2) reimburse take any action that could subject it to actual or incur potential liability, to bear any costs cost or expenses expense or incur to pay any commitment or other similar fee or make or agree to make any other liability payment or agree to provide any indemnity (including other than any guaranteecost, indemnity expense or pledgefee that is promptly reimbursed by Parent) in connection with the Financing or any of the Marketing Documents foregoing and in any event prior to the Effective TimeClosing, (3) provide take any financial data other than action, or fail to take any action, that would violate any applicable law or the Required InformationCompany Certificate, the Company Bylaws or any organizational documents of any Subsidiary of the Company, (4) take any action that, in the good faith determination of the Company, would unreasonably interfere with the conduct of the business of the Company and its Subsidiaries, or (45) provide any legal opinion information the disclosure of which is prohibited or reliance letters restricted under applicable law or any certificate (would result in the case of the Company waiver or its Subsidiary that would be required to be delivered prior to the Effective Time), comfort letter or opinion forfeiture of any of its Representativesapplicable legal privilege.
(b) Parent shall, (iv) nothing herein will involve any binding commitment upon written request by the Company, any of its Affiliates or any of their respective Representatives which commitment is not conditioned on promptly reimburse the Effective Time Company for all reasonable and does not terminate without liability to the Company, its Affiliates and their respective Representatives upon the termination of this Agreement, and (v) nothing herein will require the Company, any of its Affiliates or any of their respective Representatives to provide any information or take any action, the disclosure or taking of which would violate applicable Legal Requirements, any fiduciary duty, any Contract or obligation of confidentiality owing to a third party, or jeopardize the protection of the attorneydocumented out-client privilege (or similar protections) held of-pocket costs incurred by the Company or any of its Affiliates; provided that, if the Company does not provide or cause its Representatives Subsidiaries in connection with providing cooperation requested by Parent pursuant to provide such access or such information in reliance on the foregoing, then the Company shall (1) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1) any Representative of the Company or its Subsidiary to deliver any certificate or opinion or take any other action under this Section 6.16 that could reasonably be expected to result in personal liability to such Representative; (2) the Board of Directors (or any committee or subcommittee thereof) or the board of directors, managers, managing member or any similar controlling body of any Subsidiary of the Company to approve (or otherwise take any corporate or similar action with respect to) any financing (including the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) the Company 6.18. Parent shall indemnify and its Subsidiary to take any action that would conflict with or violate its organizational or governance documents or any applicable Legal Requirements, or result in the contravention of, or that could reasonably be expected to result in a violation of breach of, or default under, any agreement to which the Company or its Subsidiary is a party.
(c) Subject to any applicable Legal Requirements, all non-public or other confidential information provided by hold harmless the Company, its Subsidiary or any of their respective Representatives pursuant to this Agreement will be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Purchaser will be permitted to disclose such information to any Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties to the Financing and to any underwriters, initial purchasers or placement agents in connection with the Financing (and, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; or (ii) are subject to other confidentiality undertakings reasonably satisfactory to the Company and of which the Company is a beneficiary.
(d) If the Closing does not occur, promptly upon request by the Company, Parent will reimburse the Company for any documented and reasonable out-of-pocket costs and expenses (including attorneys’ fees) incurred by the Company or its Subsidiary in connection with the cooperation of the Company and its Subsidiary contemplated by this Section 6.16 (it being understood and agreed that the reimbursement set forth in this Section 6.16(d) shall not apply to any fees, costs, and expenses incurred by, or on behalf of, the Company, its Subsidiary or any of its Representatives in connection with its ordinary course financial reporting requirements or in the provision of data that, in each case, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding this Section 6.16).
(e) The Parent shall indemnify, defend and hold harmless the Company Entities Subsidiaries and their respective Representatives directors, officers, managers, employees, agents, consultants, advisors, accountants, financial advisors, legal counsel and other representatives from and against any and all liabilities, losses, damages, claims, interest, costs, awards, judgments, penalties, costs amounts paid in settlement and expenses penalties suffered or incurred by any of them in connection with the arrangement of the Financing (including any action taken in accordance with this Section 6.166.18) and costs and expenses incurred or any information utilized in defending against the foregoingconnection therewith, except for any of the foregoing to the extent such losses, damages, claims, costs the same is the result of the gross negligence or expenses arise from the willful breach misconduct of this Agreement by the Company, as finally determined its Subsidiaries or their respective directors, officers, managers, employees, agents, consultants, advisors, accountants, financial advisors, legal counsel and other representatives.
(c) Parent and Merger Sub acknowledge and agree that neither obtaining financing related to the transactions contemplated by this Agreement, nor completing the Financing, is a court of competent jurisdiction, or from fraud on condition to the part of the CompanyClosing.
Appears in 1 contract
Samples: Merger Agreement (Chubb Corp)
Financing Cooperation. During the Transition Period, the Seller shall and shall cause the Group Companies to cooperate with the Buyers and their advisors as reasonably necessary in connection with the third party debt financing (athe “Financing”) Subject obtained by any of the Buyers and/or their Affiliates in connection with the transactions contemplated by this Agreement as long as it does not constitute a breach of applicable law or regulation or any confidentiality obligation, including by:
6.5.1 subject to Section 6.16(bappropriate confidentiality protections, upon reasonable notice furnishing the Buyers’ Representative, lenders and prospective lenders (and their advisors) with financial and other available and existing information regarding the Group Companies as may be reasonably required by such lenders and of a type generally used in connection the Financing (including all financial statements, bank account details, pro forma financial information, financial data, audit reports and projections);
6.5.2 upon reasonable notice, prior reasonably assisting in the preparation of any bank information memoranda, business projections and financial statements and similar documents that may be reasonably required by the lenders and the prospective lenders, subject to Closing appropriate confidentiality protections, in connection with the Financing and provided that the Seller shall only be required to provide information that is or termination has been produced by the Company and the Subsidiaries in the ordinary course; and
6.5.3 regarding the Subsidiaries, cooperating in good faith with the Buyers in the preparation of the corporate actions, subject to the occurrence of Closing, reasonably requested by the Buyers’ Representative in connection with the Financing. Notwithstanding any other provisions of this Agreement, the Buyers shall pay all the documented and reasonable Third Party expenses and costs incurred by the Seller, the Seller’s Affiliates and the Company shall, and shall cause its Subsidiaries and their respective Representatives to, use reasonable best efforts in relation to reasonably cooperate any action properly taken by such person in compliance with and reasonably assist Parent, at the Parent’s request, sole cost and expense, written request of a Buyer or the Buyers´ Representative in connection with arranging, obtaining this Clause 6.5. The Seller does not represent and syndicating warrant any Financing and causing of the conditions in the Financing Documents and any commitment letters entered into in connection with such Financing to be satisfied, including using reasonable best efforts in (i) assisting with, and furnishing information for the purposes of, the preparation of customary prospectuses (including any pro forma financial information and any information required under Article 18(2) of Commission Delegated Regulation (EU) 2019/980), offering documents, syndication documents and materials, including bank information memoranda and private placement memoranda, lender and investor presentations, rating agency materials and presentations and other customary marketing materials in connection with the Financing (all such documents and materials, collectively, the “Marketing Documents”) (it being understood and agreed that the Marketing Documents shall include (or otherwise be subject to) any customary exculpation language, as the case may be, with respect provided to the CompanyBuyers, its Affiliates and their respective Representatives), (ii) furnishing to the Parent as promptly as reasonably practicable financial statements and operational information (including consolidated financial statements for interim periods up until the Closing Date) that can be prepared without undue burden with respect to the Company and its Subsidiary as is reasonably requested by Parent (the “Required Information”), (iii) assisting in the preparation of schedules to collateral agreements by providing information of the Company Entities required to be made available on such schedules for purposes of the arrangement lenders or consummation of the Financing, (iv) subject to any contractual agreement in effect, facilitating the pledging of collateral for the Financing, which shall not be required to be delivered or effective until at or promptly following the Effective Time, (v) subject to any contractual agreement in effect, obtaining the Payoff Letter, and the related lien releases, and instruments of termination or discharge, as applicable, required pursuant to Section 6.12, in each case which shall provide that, if sufficient funds are received by the financing sources under the Credit Agreement in order to pay off in full all obligations (other than the Excluded Obligations) in connection therewith or secured thereby, such release, termination and/or discharge shall be effective, and (vi) furnishing Parent as promptly as reasonably practical (and at least three (3) business days prior to the Closing Date) with all documentation and other information related to the Company and its Subsidiary required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, that has been reasonably requested in writing by Parent or its Financing Sources at least ten (10) business days prior to the Closing Date. The Company hereby consents to the use of its and its Subsidiary’s logos in connection with the Financing so long as such logos are used solely (i) in a manner that is not intended to or that is not reasonably likely to harm or disparage the Company or its Subsidiary or the reputation or goodwill of the Company or its Subsidiary and (ii) solely in connection with a description of the Company, its business and products or the Merger.
(b) Notwithstanding the requirements of Section 6.16(a) or anything in this Agreement to the contrary, (i) neither the Company nor any of its Affiliates or their respective Representatives shall be required to enter into, approve or perform (or commit to enter into, approve or perform) any certificate, document, agreement, or instrument, in each case which will be effective prior to the Effective Time, (ii) nothing herein shall require cooperation contemplated thereby to the extent it would interfere unreasonably with the business or operations of the Company or any of its Affiliates or their respective Affiliates, (iii) none of the Company nor any of its Affiliates or their respective Representatives, will be required to (1) pay or commit to pay any commitment or other fee, (2) reimburse or incur any costs or expenses or incur any other liability (including any guarantee, indemnity or pledge) in connection with the Financing or the Marketing Documents prior to the Effective Time, (3) provide any financial data other than the Required Information, or (4) provide any legal opinion or reliance letters or any certificate (in the case of the Company or its Subsidiary that would be required to be delivered prior to the Effective Time), comfort letter or opinion of any of its Representatives, (iv) nothing herein will involve any binding commitment by the Company, any of its Affiliates or any of their respective Representatives which commitment is not conditioned on the Effective Time and does not terminate without liability to the Company, its Affiliates and their respective Representatives upon the termination of this Agreement, and (v) nothing herein will require the Company, any of its Affiliates or any of their respective Representatives to provide any information or take any action, the disclosure or taking of which would violate applicable Legal Requirements, any fiduciary duty, any Contract or obligation of confidentiality owing to a third party, or jeopardize the protection of the attorney-client privilege (or similar protections) held by the Company or any of its Affiliates; provided that, if the Company does not provide or cause its Representatives to provide such access or such information in reliance on the foregoing, then the Company shall (1) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1) any Representative of the Company or its Subsidiary to deliver any certificate or opinion or take any other action under this Section 6.16 that could reasonably be expected to result in personal liability to such Representative; (2) the Board of Directors (or any committee or subcommittee thereof) or the board of directors, managers, managing member or any similar controlling body of any Subsidiary of the Company to approve (or otherwise take any corporate or similar action with respect to) any financing (including the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) the Company and its Subsidiary to take any action that would conflict with or violate its organizational or governance documents or any applicable Legal Requirements, or result in the contravention of, or that could reasonably be expected to result in a violation of breach of, or default under, any agreement to which the Company or its Subsidiary is a party.
(c) Subject to any applicable Legal Requirements, all non-public or other confidential information provided by the Company, its Subsidiary or any of their respective Representatives prospective lenders pursuant to this Agreement will be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Purchaser will be permitted to disclose such information to any Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties to the Financing and to any underwriters, initial purchasers or placement agents in connection with the Financing (and, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; or (ii) are subject to other confidentiality undertakings reasonably satisfactory to the Company and of which the Company is a beneficiaryClause 6.5.
(d) If the Closing does not occur, promptly upon request by the Company, Parent will reimburse the Company for any documented and reasonable out-of-pocket costs and expenses (including attorneys’ fees) incurred by the Company or its Subsidiary in connection with the cooperation of the Company and its Subsidiary contemplated by this Section 6.16 (it being understood and agreed that the reimbursement set forth in this Section 6.16(d) shall not apply to any fees, costs, and expenses incurred by, or on behalf of, the Company, its Subsidiary or any of its Representatives in connection with its ordinary course financial reporting requirements or in the provision of data that, in each case, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding this Section 6.16).
(e) The Parent shall indemnify, defend and hold harmless the Company Entities and their respective Representatives from and against any and all losses, damages, claims, interest, awards, judgments, penalties, costs and expenses suffered or incurred by any of them in connection with the Financing (including any action taken in accordance with this Section 6.16) and costs and expenses incurred in defending against the foregoing, except to the extent such losses, damages, claims, costs or expenses arise from the willful breach of this Agreement by the Company, as finally determined by a court of competent jurisdiction, or from fraud on the part of the Company.
Appears in 1 contract
Financing Cooperation. (a) Subject The Company shall provide to Section 6.16(b), prior to Closing or termination of this Agreement, the Company shallParent, and shall cause the respective officers and employees of the Company, and use its Subsidiaries and their respective Representatives to, use commercially reasonable best efforts to reasonably cooperate with and reasonably assist cause the Representatives of the Company to provide to Parent, at the Parent’s request, sole cost and expense, in connection with arranging, obtaining and syndicating any Financing and causing the conditions in the Financing Documents and any commitment letters entered into in connection with such Financing to be satisfied, including using reasonable best efforts in (i) assisting with, and furnishing information for the purposes of, the preparation of customary prospectuses (including any pro forma financial information and any information required under Article 18(2) of Commission Delegated Regulation (EU) 2019/980), offering documents, syndication documents and materials, including bank information memoranda and private placement memoranda, lender and investor presentations, rating agency materials and presentations and other customary marketing materials in connection with the Financing (all such documents and materials, collectively, the “Marketing Documents”) (it being understood and agreed that the Marketing Documents shall include (or otherwise be subject to) any customary exculpation language, as the case may be, with respect to the Company, its Affiliates and their respective Representatives), (ii) furnishing to the Parent as promptly as reasonably practicable financial statements and operational information (including consolidated financial statements for interim periods up until the Closing Date) that can be prepared without undue burden with respect to the Company and its Subsidiary as is cooperation reasonably requested by Parent (the “Required Information”), (iii) assisting in the preparation of schedules to collateral agreements by providing information of the Company Entities that is necessary or reasonably required to be made available on such schedules for purposes of the arrangement or consummation of the Financing, (iv) subject to any contractual agreement in effect, facilitating the pledging of collateral for the Financing, which shall not be required to be delivered or effective until at or promptly following the Effective Time, (v) subject to any contractual agreement in effect, obtaining the Payoff Letter, and the related lien releases, and instruments of termination or discharge, as applicable, required pursuant to Section 6.12, in each case which shall provide that, if sufficient funds are received by the financing sources under the Credit Agreement in order to pay off in full all obligations (other than the Excluded Obligations) in connection therewith with any Third Party debt financing transaction or secured therebyunderwritten public offering of Parent Common Shares for cash that Parent may pursue prior to the Closing Date, such release, termination and/or discharge shall be effective, and including the following: (vii) furnishing Parent as promptly as reasonably practical (and at least three (3) business days prior to the Closing Date) practicable upon request by Parent with all documentation financial statements, financial data and other information related to regarding the Company and its Subsidiary Subsidiaries of the type that would be required by regulatory authorities Regulation S-X and Regulation S-K promulgated under applicable “know your customer” and anti-money laundering rules and regulations, the Securities Act for a public offering of securities of Parent (including the PATRIOT Act, that has been reasonably requested for use in writing by Parent or its Financing Sources at least ten (10) business days prior to the Closing Date. The Company hereby consents to the use Parent’s preparation of its and its Subsidiary’s logos in connection with the Financing so long as such logos are used solely (i) in a manner that is not intended to or that is not reasonably likely to harm or disparage the Company or its Subsidiary or the reputation or goodwill of the Company or its Subsidiary pro forma financial statements); and (ii) solely requesting the Company’s independent accountants to prepare and deliver “comfort letters,” dated the date of each final offering document used in connection with a description any securities offering by Parent (with appropriate bring-down comfort letters delivered on the closing date of the Company, its business and products or the Merger.
(b) Notwithstanding the requirements of Section 6.16(a) or anything in this Agreement to the contrary, (i) neither the Company nor any of its Affiliates or their respective Representatives shall be required to enter into, approve or perform (or commit to enter into, approve or perform) any certificate, document, agreement, or instrumentsuch offering), in each compliance with professional standards (including providing “negative assurance” comfort and Statement on Auditing Standards No. 100 review of interim financial statements) and otherwise on terms reasonably acceptable to Parent, as the case which will be effective prior to the Effective Timemay be; provided, (ii) nothing herein shall require cooperation contemplated thereby to the extent it would interfere unreasonably with the business or operations however, that none of the Company or any of its Affiliates or their respective Affiliates, (iii) none of the Company nor any of its Affiliates or their respective Representatives, will Subsidiaries shall be required to (1) pay or commit to pay any commitment or other fee, (2) reimburse fee or incur any costs or expenses or incur any other liability (including any guarantee, indemnity or pledge) in connection with the Financing any such financing, and no personal liability shall be imposed on any officers, directors or the Marketing Documents prior to the Effective Time, (3) provide any financial data other than the Required Information, or (4) provide any legal opinion or reliance letters or any certificate (in the case Representatives of the Company or its Subsidiary that would be required to be delivered prior to the Effective Time)Company. Parent shall promptly, comfort letter or opinion of any of its Representatives, (iv) nothing herein will involve any binding commitment by the Company, any of its Affiliates or any of their respective Representatives which commitment is not conditioned on the Effective Time and does not terminate without liability to the Company, its Affiliates and their respective Representatives upon the termination of this Agreement, and (v) nothing herein will require the Company, any of its Affiliates or any of their respective Representatives to provide any information or take any action, the disclosure or taking of which would violate applicable Legal Requirements, any fiduciary duty, any Contract or obligation of confidentiality owing to a third party, or jeopardize the protection of the attorney-client privilege (or similar protections) held by the Company or any of its Affiliates; provided that, if the Company does not provide or cause its Representatives to provide such access or such information in reliance on the foregoing, then the Company shall (1) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1) any Representative of the Company or its Subsidiary to deliver any certificate or opinion or take any other action under this Section 6.16 that could reasonably be expected to result in personal liability to such Representative; (2) the Board of Directors (or any committee or subcommittee thereof) or the board of directors, managers, managing member or any similar controlling body of any Subsidiary of the Company to approve (or otherwise take any corporate or similar action with respect to) any financing (including the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) the Company and its Subsidiary to take any action that would conflict with or violate its organizational or governance documents or any applicable Legal Requirements, or result in the contravention of, or that could reasonably be expected to result in a violation of breach of, or default under, any agreement to which the Company or its Subsidiary is a party.
(c) Subject to any applicable Legal Requirements, all non-public or other confidential information provided by the Company, its Subsidiary or any of their respective Representatives pursuant to this Agreement will be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Purchaser will be permitted to disclose such information to any Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties to the Financing and to any underwriters, initial purchasers or placement agents in connection with the Financing (and, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; or (ii) are subject to other confidentiality undertakings reasonably satisfactory to the Company and of which the Company is a beneficiary.
(d) If the Closing does not occur, promptly upon request by the Company, Parent will reimburse the Company for any all reasonable and documented and reasonable out-of-pocket costs and expenses paid to Third Parties (including attorneys’ feesadvisor’s fees and expenses) incurred by the Company or its Subsidiary Company LP in connection with the cooperation of the provided or other action taken by Company and its Subsidiary contemplated by or Company LP pursuant to this Section 6.16 (it being understood 6.14 and agreed that the reimbursement set forth in this Section 6.16(d) shall not apply to any fees, costs, indemnify and expenses incurred by, or on behalf of, hold harmless the Company, its Subsidiary or any of its Representatives in connection with its ordinary course financial reporting requirements or in the provision of data that, in each case, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding this Section 6.16).
(e) The Parent shall indemnify, defend and hold harmless the Company Entities Subsidiaries and their respective officers, directors and other Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgmentsjudgments and penalties (collectively, penalties, costs and expenses “Losses”) suffered or incurred by any of them in connection with the Financing (including any such financing transaction or public offering, any information utilized in connection therewith or any action taken by the Company or any of its Subsidiaries pursuant to this Section 6.14; provided, however, that the foregoing indemnity shall not apply with respect to any Losses resulting from a willful or intentional breach of any representation, warranty, covenant or agreement of the Company or any Company Subsidiaries under this Agreement. All nonpublic or otherwise confidential information regarding the Company and Company Subsidiaries obtained by Parent, its Affiliates or their Representatives pursuant to this Section 6.14 shall be kept confidential in accordance with this Section 6.16) and costs and expenses incurred in defending against the terms of the Confidentiality Agreement. Notwithstanding the foregoing, except the effectiveness of any documentation executed by the Company or any of the Company Subsidiaries pursuant to this Section shall be subject to the extent such lossesoccurrence of the REIT Merger Effective Time, damagesand none of the Company, claimsthe Company Subsidiaries and any Persons who are directors of the Company or any Company Subsidiary shall be required to pass resolutions or consents to approve or authorize the execution of, costs or expenses arise from execute or deliver, any certificate, document, instrument or agreement or agree to any change or modification of any existing certificate, document, instrument or agreement, in each case, with an effective date prior to the willful breach REIT Merger Effective Time.
(b) Company LP shall, if requested by Parent, as soon as reasonably practicable after the date of this Agreement, use its reasonable best efforts to commence a consent solicitation with respect to any or all of Company LP’s outstanding senior notes (the “Notes”), on such terms and conditions as may be specified by Parent (i) to amend or waive certain provisions of the indenture governing each series of Notes with the consent of the holders of a majority in principal amount of the outstanding securities of such series, to provide that no offer to repurchase the Notes will be required as a result of any “Change of Control” (as defined in the applicable indenture) occurring in connection with the transactions contemplated by this Agreement (the “Notes COC Consents”) and (ii) to amend certain terms of the indenture governing each series of Notes (the “Indenture Amendments”) as determined by Parent and in compliance with applicable law (including SEC rules and regulations) and the provisions of the indentures governing the applicable series of Notes and as set forth in the consent solicitation documents sent to holders of such series of Notes to become effective substantially simultaneously with the Closing and no earlier than the REIT Merger Effective Time, which amendments may include the elimination of all or substantially all of the restrictive covenants and certain other provisions contained in the indenture governing such series of Notes that can be eliminated upon the favorable vote of the holders of a majority of the principal amount thereof (the “Other Consents” and, together with the Notes COC Consents, the “Consent Solicitations”). Any documentation relating to any Consent Solicitation (including all amendments or supplements thereto) (the “Solicitation Documents”) and all material requested to be published or mailed to the holders of the Notes in connection with any Consent Solicitation shall be subject to the prior review of (which review shall be made as promptly as reasonably practicable), and comment by the Company and shall be reasonably acceptable to the Company; provided that, in any event, the parties hereby agree that promptly upon expiration of any Consent Solicitation, assuming the requisite consents have been received with respect to such series of Notes, Company LP shall execute a supplemental indenture to the indentures governing each series of Notes and shall use reasonable best efforts to cause the trustee under each such indenture and lenders to enter into such supplemental indenture prior to or substantially simultaneously with the execution thereof by Company LP. Any Indenture Amendments contemplated by any Consent Solicitation (other than any Notes COC Consent) shall revert to the form in effect prior to the effectiveness of any Indenture Amendments and be of no further effect if the Closing does not occur.
(c) If at any time prior to the completion of any Consent Solicitation any information should be discovered by the Company, as finally determined Company LP, Parent or Parent LP that the Company, Company LP, Parent or Parent LP reasonably believes should be set forth in an amendment or supplement to the Solicitation Documents, so that the Solicitation Documents shall not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other parties, and an appropriate amendment or supplement prepared by a court Parent and reasonably acceptable to the Company describing such information shall be disseminated by or on behalf of competent jurisdictionCompany LP to the holders of the applicable Notes.
(d) Parent shall select and pay the fees and out-of-pocket expenses of any dealer manager, information agent, depositary, trustee or other agent retained in connection with any Consent Solicitation (in each case reasonably acceptable to the Company), and pay all consent fees (or provide Company LP with the funds required therefor in advance of the required payment thereof) payable in connection with any Consent Solicitation. At Parent’s expense, the Company shall use its reasonable best efforts, and shall cause Company LP and the other Company Subsidiaries to use their reasonable best efforts to, provide all cooperation reasonably requested by Parent that is necessary or reasonably required in connection with the Consent Solicitations, including, without limitation, (i) executing supplemental indentures to the indentures governing each series of Notes, (ii) using reasonable best efforts to cause the trustee under each such indenture to enter such supplemental indenture prior or substantially simultaneously with execution thereof by Company LP and (iii) providing the information necessary to distribute the applicable Solicitation Documents to the holders of the applicable series of Notes. If requested by Parent in writing in connection with any COC Consent with respect to the Notes, the Company, Company LP and the Company Subsidiaries shall use their reasonable best efforts, or from fraud on shall use their reasonable best efforts to cause their counsel to, deliver legal opinions in customary form and scope relating to the part Company, Company LP, the Company Subsidiaries and/or the indentures governing the Notes required in connection with any Other Consent.
(e) Notwithstanding anything to the contrary contained in this Section 6.14, neither the Company nor Company LP shall be required to take any action in connection with any Consent Solicitation that either believes, after consultation with counsel, could reasonably be expected to cause the Company or Company LP to violate (i) federal or state securities laws or (ii) the provisions of the Companyindentures governing the applicable series of Notes. It is expressly agreed by the parties hereto that the failure to obtain the consent of the holders of the Notes in connection with any Consent Solicitation shall not be deemed to be a breach by the Company or Company LP under this Agreement or a failure of any condition hereto.
Appears in 1 contract
Samples: Merger Agreement (RLJ Lodging Trust)
Financing Cooperation. (a) Subject to Section 6.16(b), prior to Closing or termination of this Agreement, the The Company shall, and shall cause each Company Subsidiary and its Subsidiaries and their respective Representatives officers, directors and employees to, at Parent’s sole expense, use its and their respective reasonable best efforts to provide and shall use reasonable best efforts to reasonably cooperate with direct its and reasonably assist Parenttheir respective accountants, at the Parent’s request, sole cost legal counsel and expenseother representatives to provide, in connection with arrangingeach case, obtaining and syndicating any Financing and causing the conditions in the Financing Documents and any commitment letters entered into in connection with such Financing to all customary cooperation as may be satisfiedrequested by Parent or Merger Sub, including using reasonable best efforts in (i) assisting withas applicable, and furnishing information for the purposes of, the preparation of that is necessary or customary prospectuses (including any pro forma financial information and any information required under Article 18(2) of Commission Delegated Regulation (EU) 2019/980), offering documents, syndication documents and materials, including bank information memoranda and private placement memoranda, lender and investor presentations, rating agency materials and presentations and other customary marketing materials in connection with the arranging and obtaining of the Debt Financing; provided, that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company or any Company Subsidiary. Such cooperation by the Company and the Company Subsidiaries shall include:
(i) preparing and furnishing Parent or Merger Sub, as applicable, and the Debt Financing Sources, as promptly as practicable after the date hereof (and in any event, not later than a time reasonably sufficient to allow Parent or Merger Sub, as applicable, to satisfy any condition to the receipt of such Debt Financing, including in any event on or prior to the Closing Date), all such documents Financial Information and materialsall other financial and other pertinent information and disclosures regarding the Company and the Company Subsidiaries as may be reasonably requested by Parent or Merger Sub, collectivelyas applicable, for use in connection with the Debt Financing,
(ii) causing the Company’s senior officers to participate in a reasonable number of lender or investor meetings (including customary one-on-one meetings with the parties acting as lead arrangers, bookrunners or agents for, and prospective lenders and purchasers of, the “Marketing Documents”) Debt Financing and senior management and representatives, with appropriate seniority and expertise, of the Company), rating agency presentations and sessions and due diligence meetings, in each case, at reasonable times and upon reasonable advance notice (it being understood and agreed that any such meetings, presentations and sessions may be virtual),
(iii) assisting Parent and Merger Sub, as applicable, and the Debt Financing Sources in the preparation of (a) Debt Marketing Documents shall include (or otherwise be subject to) and any customary exculpation language, as the case may be, with respect to the Company, its Affiliates and their respective Representatives), (ii) furnishing to the Parent as promptly as reasonably practicable financial statements and operational information supplements thereto (including consolidated financial statements for interim periods up until assisting with the Closing Date) preparation of versions of such Debt Marketing Documents and any supplements thereto that can be prepared without undue burden do not contain material non-public information with respect to the Company and its Subsidiary the Company Subsidiaries and executing and delivering one or more customary authorization and representation letters) and (b) pro forma financial statements or other pro forma financial information, in each case to the extent reasonably requested by Merger Sub or Parent; provided, that (x) the Company shall not be responsible for the preparation of such pro forma financial statements and any pro forma adjustments giving effect to the Transactions contemplated herein and (y) the Company’s assistance shall relate solely to the financial information and data derived from the Company’s historical books and records (which shall not involve the Company itself preparing such pro forma financial information), and providing reasonable cooperation with the due diligence efforts of the Debt Financing Sources to the extent reasonable and customary,
(iv) reasonably cooperating with the marketing efforts of Merger Sub and the Debt Financing Sources in connection with the Debt Financing, including direct contact between such management of the Company and the Debt Financing Sources,
(v) reasonably cooperating with Parent’s legal counsel in connection with customary legal opinions required of Merger Sub in connection with the Debt Financing,
(vi) reasonably assisting Parent or Merger Sub, as is applicable, in obtaining any corporate credit and family ratings from any ratings agencies contemplated in connection with the Debt Financing, including assisting Parent or Merger Sub, as applicable, and the Debt Financing Sources in the preparation of customary materials for rating agency presentation to the extent reasonably requested by Parent or Merger Sub,
(the “Required Information”), (iiivii) reasonably assisting in the preparation of, and executing and delivering, any pledge, security, definitive financing agreements for the Debt Financing and other customary financing documents, including guarantee and collateral documents and other certificates and documents (including the preparation of schedules to collateral agreements by providing information thereto and other closing certificates, consents and resolutions (including a certificate of the Company Entities required chief financial officer of, or person performing similar functions for, the Company) with respect to solvency matters in customary form attached to the Debt Commitment Letter) as may be made available on such schedules for purposes of the arrangement reasonably requested by Parent or consummation of the Financing, (iv) subject to any contractual agreement in effect, facilitating the pledging of collateral for the Financing, which shall not be required to be delivered or effective until at or promptly following the Effective Time, (v) subject to any contractual agreement in effect, obtaining the Payoff Letter, and the related lien releases, and instruments of termination or dischargeMerger Sub, as applicable, required pursuant to Section 6.12, in each case which shall provide that, if sufficient funds are received by the financing sources under the Credit Agreement in order to pay off in full all obligations (other than the Excluded Obligations) in connection therewith with the Debt Financing,
(viii) facilitating the pledging of, granting of security interests in and obtaining perfection of any liens on, collateral in connection with the Debt Financing (including delivery of original stock certificates and original stock powers of the Company Subsidiaries to the extent required on the Closing Date in connection with the Debt Financing and to the extent available to the Company),
(ix) using reasonable best efforts to assist the Debt Financing Sources in benefiting from the existing lending relationships of the Company,
(x) taking all ministerial company actions reasonably requested by Parent or secured therebyMerger Sub, such releaseas applicable, termination and/or discharge shall be effective, and to permit the consummation of the Debt Financing,
(vixi) furnishing Parent as promptly as reasonably practical (and at least three (3) business days prior to the Closing Date) with , providing all documentation and other information related to the Company and its Subsidiary customarily required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulationsregulations including, including without limitation, the PATRIOT USA Patriot Act, that has been relating to the Company and the Company Subsidiaries and including, if the Company or any of the Company Subsidiaries qualify as “legal entity customers” under the Beneficial Ownership Regulation, a Beneficial Ownership Certificate, in each case, as is reasonably requested in writing by Parent or its Financing Sources Merger Sub, as applicable, at least ten (10) business days prior to the Closing Date. The Company hereby consents Closing, and
(a) obtaining a customary pay-off letter (in a form and substance reasonably acceptable to Parent and the Lenders) (the “Debt Payoff Letter”) and lien terminations, if applicable, to the use extent necessary for the release of its all Liens and its Subsidiary’s logos the prepayment, payoff, discharge and termination in connection with full of all obligations outstanding under the Financing so long Credit Agreement, dated as such logos are used solely (i) in a manner that is not intended to or that is not reasonably likely to harm or disparage of February 26, 2019, among the Company or its Subsidiary or the reputation or goodwill of the Company or its Subsidiary and (ii) solely in connection with a description Company, certain affiliates of the Company, its business the financial institutions listed therein as lenders, Bank of America, N.A. as agent for the lenders named therein, Silicon Valley Bank as syndication agent and products or Mxxxxxx Lynch, Pierce, Fxxxxx & Sxxxx Incorporated, as sole lead arranger and sole book runner, as amended to the Mergerdate hereof (the “Existing Credit Agreement”), (b) providing Parent with a copy of such Debt Payoff Letter at least two (2) Business Days prior to the Closing Date and (c) giving (by the date required under the Existing Credit Agreement) any necessary notices (including notices of prepayment) to allow for the prepayment, payoff, discharge and termination in full of the Existing Credit Agreement at the Closing.
(b) Notwithstanding the requirements of Section 6.16(a) or anything in this Agreement to the contrary, (iA) neither the Company nor any of its Affiliates or their respective Representatives Company Subsidiary shall be required to enter into, approve or perform (or commit to enter into, approve or perform) any certificate, document, agreement, or instrument, in each case which will be effective prior to the Effective Time, (ii) nothing herein shall require cooperation contemplated thereby to the extent it would interfere unreasonably with the business or operations of the Company or any of its Affiliates or their respective Affiliates, (iii) none of the Company nor any of its Affiliates or their respective Representatives, will be required to (1) pay or commit to pay any commitment or other fee, similar fee (2) reimburse or incur any other than for reasonable out-of-pocket costs or expenses that are reimbursed by Parent or Merger Sub, as applicable, as provided in Section 6.16(c)) or enter into any binding agreement or commitment (other than any customary authorization or representation letters) or incur any other actual or potential liability (including any guarantee, indemnity or pledge) in connection with the Debt Financing or any of the Marketing Documents foregoing prior to, or with respect to any event or circumstances occurring or existing prior to, the Effective TimeClosing unless, in each case, either indemnified by Parent and Merger Sub in accordance with Section 6.16(c) or reimbursed by Parent or Merger Sub, as applicable, in accordance with Section 6.16(c), (3B) provide any financial data other than the Required Informationno director, manager, officer or (4) provide any legal opinion or reliance letters or any certificate (in the case employee of the Company or its any Company Subsidiary that would shall be required to be delivered prior to the Effective Time), comfort letter or opinion of any of its Representatives, (iv) nothing herein will involve any binding commitment by the Company, any of its Affiliates or any of their respective Representatives which commitment is not conditioned on the Effective Time and does not terminate without liability to the Company, its Affiliates and their respective Representatives upon the termination of this Agreement, and (v) nothing herein will require the Company, any of its Affiliates or any of their respective Representatives to provide any information or take any action, the disclosure or taking of which would violate applicable Legal Requirements, any fiduciary duty, any Contract or obligation of confidentiality owing to a third party, or jeopardize the protection of the attorney-client privilege (or similar protections) held by the Company or any of its Affiliates; provided that, if the Company does not provide or cause its Representatives to provide such access or such information in reliance on the foregoing, then the Company shall (1) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1) any Representative of the Company or its Subsidiary to deliver any certificate or opinion or take any other action under this pursuant to Section 6.16 that could 6.16(a) to the extent any such action would reasonably be expected to result in personal liability to such Representative; director, manager, officer or employee, (2C) none of the Board of Directors (or Company, any committee or subcommittee thereof) or the board of directors, managers, managing member or any similar controlling body of any Subsidiary of the Company Subsidiaries or any of their respective directors or officers shall be obligated to adopt resolutions or execute consents to approve or authorize the execution of the Debt Financing, provided, that this clause (C) shall not prohibit the adoption or otherwise take execution of any corporate resolutions or similar action with respect to) consents so long as such resolutions or consents which are contingent upon the occurrence of the Closing or do not become effective any financing (including earlier than the Financing) Closing Date by any persons that shall remain or Contracts (including any Financing Document will become officers or commitment letter) related thereto; or (3) directors of the Company or any of the Company Subsidiaries as of the Effective Time, and its (D) neither the Company nor any Company Subsidiary shall be required to take any action that would reasonably be expected, in the reasonable judgment of the Company, to conflict with or violate its organizational or governance documents or any applicable Legal Requirementswith, or result in the contravention of, any violation or that could reasonably be expected to result in a violation of material breach of, any applicable Law or default under, any agreement to which obligations of confidentiality (not created in contemplation hereof) binding on the Company or its Subsidiary the Company Subsidiaries. The Company hereby consents to the use of the Company’s and the Company Subsidiaries’ logos in connection with the Debt Financing; provided, however, that such logos are used solely in a manner that is a partynot intended to, or reasonably likely to, harm, disparage or otherwise adversely affect the Company or the reputation or goodwill of the Company.
(c) Subject to any applicable Legal RequirementsParent or Merger Sub, all non-public or other confidential information provided by the Companyas applicable, its Subsidiary or any of their respective Representatives pursuant to this Agreement will be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Purchaser will be permitted to disclose such information to any Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties to the Financing and to any underwriters, initial purchasers or placement agents in connection with the Financing (and, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; or (ii) are subject to other confidentiality undertakings reasonably satisfactory to the Company and of which the Company is a beneficiary.
(d) If the Closing does not occurshall, promptly upon request by the Company, Parent will reimburse the Company for any all documented and reasonable out-of-pocket costs and expenses (including attorneys’ fees) incurred by the Company or its Subsidiary in connection with the cooperation of Company, the Company Subsidiaries and its Subsidiary contemplated by this Section 6.16 (it being understood and agreed that the reimbursement set forth in this Section 6.16(d) shall not apply to any fees, costs, and expenses incurred by, or on behalf of, the Company, its Subsidiary or any of its their respective Representatives in connection with its ordinary course financial reporting requirements or in the provision of data that, in each case, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding this their respective obligations pursuant to Section 6.166.16(a).
(e) The . Parent and Merger Sub shall indemnify, defend jointly and severally indemnify and hold harmless the Company, the Company Entities Subsidiaries and their respective Representatives Representatives, from and against any and all claims, losses, liabilities, damages, claims, interest, awards, judgments, penaltiesinquiries, fines and reasonable fees, costs and expenses expenses, including attorneys’ fees and disbursements suffered or incurred by any of them in connection with the Debt Financing and any information supplied or provided in connection therewith (including any action taken in accordance with this Section 6.16) and costs and expenses incurred in defending against the foregoing, except to the extent such lossessuffered or incurred as a result of (i) the gross negligence, damages, claims, costs willful misconduct or expenses arise from the willful material breach of this Agreement by the Company, any Company Subsidiary or any affiliate or Representative thereof, in each case as finally determined by a court of competent jurisdiction, or from fraud on (ii) any inaccuracy (other than any immaterial inaccuracy) in the part historical financial information provided to Parent or Merger Sub by the Company pursuant to the definition of the Company“Financial Information”).
Appears in 1 contract
Financing Cooperation. (a) Subject to Section 6.16(b), prior to Closing or termination of this Agreement, the The Company shall, and shall cause its Subsidiaries and their respective Representatives to, shall use reasonable best efforts to provide, and cause their respective Representatives to provide, all cooperation that is reasonably cooperate with necessary, customary or advisable and reasonably requested by Parent to assist Parent, at the Parent’s request, sole cost and expense, in connection with arranging, obtaining and syndicating any Financing and causing the conditions in the Financing Documents and any commitment letters entered into in connection with such Financing to be satisfied, including using reasonable best efforts in (i) assisting with, and furnishing information for the purposes of, the preparation of customary prospectuses (including any pro forma financial information and any information required under Article 18(2) of Commission Delegated Regulation (EU) 2019/980), offering documents, syndication documents and materials, including bank information memoranda and private placement memoranda, lender and investor presentations, rating agency materials and presentations and other customary marketing materials Parent in connection with the consummation, arrangement, marketing and syndication of the Debt Financing or any replacement, amended, modified or alternative financing permitted by this Agreement (all such documents and materials, collectivelycollectively with the Debt Financing, the “Marketing DocumentsAvailable Financing”) (it being understood and agreed that the Marketing Documents receipt of such financing is not a condition to the Merger); provided, however, that nothing in this Section 6.09 shall include (require such cooperation or otherwise be subject to) any customary exculpation language, as other action on the case may be, with respect to part of the Company, its Affiliates and Subsidiaries or their respective Representatives)Representatives to the extent it would (A) unreasonably disrupt the conduct of the business or operations of the Company or its Subsidiaries or (B) require the Company, any of its Subsidiaries or any of their respective Representatives to enter into any agreement, take any corporate action or otherwise agree to pay any fees, reimburse any expenses or otherwise incur any liability (other than out-of-pocket expenses that shall be subject to reimbursement by Parent as set forth below) or give any indemnities prior to the Effective Time. Subject to the foregoing proviso, cooperation shall include using reasonable best efforts to (i) prepare and furnish the Required Information, (ii) furnishing make available financial information and data derived from the historical books and records of the Company and its Subsidiaries that is (x) required to permit Parent to prepare the pro forma financial statements contemplated by paragraph 8 of Exhibit D of the Debt Commitment Letter as in effect as of the date hereof (provided that Parent as promptly as reasonably practicable shall be responsible for the preparation of any pro forma financial statements and operational pro forma adjustments giving effect to the transactions contemplated hereby for use in connection with the offering of the Available Financing, it being understood that the Company shall cooperate with Parent in the preparation of such pro forma information to the extent its cooperation relates to financial information and data derived from the Company’s historical books and records) or (y) pertinent and customary financial and other information (other than pro forma financial statements) as Parent shall reasonably request of the type and form that are customarily included in private placements of non-convertible debt securities pursuant to Rule 144A promulgated under the Securities Act (including consolidated financial statements information required by Regulation S-X and Regulation S-K under the Securities Act, (iii) participate, in each case upon reasonable notice, at agreed times and places, in a reasonable number of meetings (including one-on-one meetings or conference calls) with parties acting as agents or arrangers for, and prospective lenders of, the Available Financing for interim periods up until the Closing Datetransactions contemplated by this Agreement, presentations, road shows, due diligence sessions, drafting sessions and sessions with rating agencies, and to reasonably cooperate with the marketing or solicitation efforts of Parent and Merger Sub and their financing sources, in each case as reasonably requested by Parent and Merger Sub and reasonably required in connection with the Available Financing, (iv) that can be prepared without undue burden as reasonably requested by Parent, assist Parent with the preparation of customary materials for rating agency presentations, marketing materials, offering memoranda and bank information memoranda (including with respect to presence of or absence of material non-public information relating to the Company and its Subsidiary as is reasonably requested by Parent (Subsidiaries and the “Required Information”accuracy of the information relating to the Company and its Subsidiaries contained therein), (iii) assisting lender presentations, offering documents, private placement memoranda, prospectuses and similar documents required in connection with the preparation of schedules to collateral agreements by providing information of the Company Entities required to be made available on such schedules for purposes of the arrangement or consummation of the Available Financing, (ivv) subject to any contractual agreement in effect, facilitating reasonably facilitate the pledging of collateral for the Financingcollateral, which provided that no such pledging or related documents or agreements shall not be required effective prior to be delivered or effective until at or promptly following the Effective Time, (vvi) taking all corporate actions, subject to any contractual agreement in effectthe occurrence of the Effective Time, obtaining reasonably requested by Parent to permit the Payoff Letter, and consummation of the related lien releases, and instruments of termination or discharge, as applicable, required pursuant to Section 6.12, in each case which shall provide that, if sufficient funds are received by the financing sources under the Credit Agreement in order to pay off in full all obligations Available Financing (other than the Excluded Obligations) in connection therewith or secured thereby, provided that no such release, termination and/or discharge action shall be effective, and (vi) furnishing Parent as promptly as reasonably practical (and at least three (3) business days required of the Company Board prior to the Closing DateEffective Time), (vii) furnish Parent and any lenders involved with the Available Financing, with all documentation and other information related to the Company and its Subsidiary required by regulatory authorities any Governmental Authority with respect to such financing under applicable “know your customer” and anti-money laundering rules and regulations, (vii) assist in the preparation and execution of any customary credit agreements (or amendments thereto), pledge and security documents, guarantees, indentures, contribution agreements, management and services agreements, purchase agreements, and other customary definitive documentation relating to the Available Financing and (ix) in the case of the Required Information delivered in connection with the offering of any debt securities as part of the Available Financing contained in the offering memorandum and any marketing materials utilized as part of the portion of the Available Financing constituting debt securities, assist Parent and Merger Sub in obtaining customary comfort letters (including customary “negative assurance” comfort) from the PATRIOT ActCompany’s independent accountants and confirmation that such accountants are prepared to issue the agreed upon form of comfort letters (by delivering drafts thereof) when customarily required to be delivered during the Marketing Period.
(b) Notwithstanding the foregoing, neither the Company nor any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 6.09 that would (i) contravene any applicable Law or require the Company or any of its Subsidiaries to disclose information subject to any attorney-client, attorney work product or other legal privilege (provided, however, that has been reasonably requested the Company shall use its reasonable best efforts to allow for such access or disclosure to the maximum extent that does not result in writing a loss of any such attorney-client, attorney work product or other legal privilege), (ii) cause any covenant, representation or warranty in this Agreement to be breached by the Company or any of its Subsidiaries, (iii) require the Company or any of its Subsidiaries to pay any commitment or other fee or incur any other expense (except to the extent Parent will promptly reimburse such expense), liability or obligation in connection with the Available Financing prior to the Closing, (iv) cause any director, officer or employee or stockholder of the Company or any of its Subsidiaries to incur any personal liability, (v) require the Company, its Subsidiaries or any persons who are directors of the Company or its Financing Sources at least ten Subsidiaries to pass any resolution or consent to approve or authorize the execution of the Available Financing, (10vi) business days require the Company, its Subsidiaries or any persons who are officers of the Company or its Subsidiaries to execute or deliver any certificate, document, instrument or agreement or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing Date(provided that in no event shall this Section 6.09 require the Company or any of its Subsidiaries to cause any officer of the Company or any of its Subsidiaries that is not continuing in such capacity after the Closing to execute any certificate, document, instrument or agreement), or (vii) interfere in any material respect with the conduct of the business of the Company and its Subsidiaries. Nothing in this Section 6.09 or otherwise shall require the Company or any of its Subsidiaries, prior to the Closing, to be an issuer or other obligor with respect to any of the Available Financing. The Company hereby consents to the reasonable use of its and its Subsidiary’s Subsidiaries’ logos in connection with the Financing so long as Available Financing; provided, that such logos are shall be used solely (i) in a manner that is not intended to or that is not reasonably likely to harm harm, disparage or disparage the Company or its Subsidiary or the reputation or goodwill of the Company or its Subsidiary and (ii) solely in connection with a description of the Company, its business and products or the Merger.
(b) Notwithstanding the requirements of Section 6.16(a) or anything in this Agreement to the contrary, (i) neither the Company nor any of its Affiliates or their respective Representatives shall be required to enter into, approve or perform (or commit to enter into, approve or perform) any certificate, document, agreement, or instrument, in each case which will be effective prior to the Effective Time, (ii) nothing herein shall require cooperation contemplated thereby to the extent it would interfere unreasonably with the business or operations of otherwise adversely affect the Company or any of its Affiliates or their respective Affiliates, (iii) none of the Company nor any of its Affiliates or their respective Representatives, will be required to (1) pay or commit to pay any commitment or other fee, (2) reimburse or incur any costs or expenses or incur any other liability (including any guarantee, indemnity or pledge) in connection with the Financing or the Marketing Documents prior to the Effective Time, (3) provide any financial data other than the Required Information, or (4) provide any legal opinion or reliance letters or any certificate (in the case of the Company or its Subsidiary that would be required to be delivered prior to the Effective Time), comfort letter or opinion of any of its Representatives, (iv) nothing herein will involve any binding commitment by the Company, any of its Affiliates or any of their respective Representatives which commitment is not conditioned on the Effective Time and does not terminate without liability to the Company, its Affiliates and their respective Representatives upon the termination of this Agreement, and (v) nothing herein will require the Company, any of its Affiliates or any of their respective Representatives to provide any information or take any action, the disclosure or taking of which would violate applicable Legal Requirements, any fiduciary duty, any Contract or obligation of confidentiality owing to a third party, or jeopardize the protection of the attorney-client privilege (or similar protections) held by the Company or any of its Affiliates; provided that, if the Company does not provide or cause its Representatives to provide such access or such information in reliance on the foregoing, then the Company shall (1) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1) any Representative of the Company or its Subsidiary to deliver any certificate or opinion or take any other action under this Section 6.16 that could reasonably be expected to result in personal liability to such Representative; (2) the Board of Directors (or any committee or subcommittee thereof) or the board of directors, managers, managing member or any similar controlling body of any Subsidiary of the Company to approve (or otherwise take any corporate or similar action with respect to) any financing (including the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) the Company and its Subsidiary to take any action that would conflict with or violate its organizational or governance documents or any applicable Legal Requirements, or result in the contravention of, or that could reasonably be expected to result in a violation of breach of, or default under, any agreement to which the Company or its Subsidiary is a partySubsidiaries.
(c) Subject to any applicable Legal Requirements, all non-public or other confidential information provided by the Company, its Subsidiary or any of their respective Representatives pursuant to this Agreement will be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Purchaser will be permitted to disclose such information to any Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties to the Financing and to any underwriters, initial purchasers or placement agents in connection with the Financing (and, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; or (ii) are subject to other confidentiality undertakings reasonably satisfactory to the Company and of which the Company is a beneficiary.
(d) If the Closing does not occurshall, promptly upon request by the Company, Parent will reimburse the Company for any documented and all reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees, but excluding, for the avoidance of doubt, the costs of the Company’s preparation of its annual and quarterly financing statements in the Ordinary Course of Business) incurred by the Company or any of its Subsidiary Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiary contemplated by such financing or pursuant to this Section 6.16 (it being understood 6.09. In addition, Parent shall indemnify and agreed that the reimbursement set forth in this Section 6.16(d) shall not apply to any fees, costs, and expenses incurred by, or on behalf of, hold harmless the Company, its Subsidiary or any of its Representatives in connection with its ordinary course financial reporting requirements or in the provision of data that, in each case, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding this Section 6.16).
(e) The Parent shall indemnify, defend and hold harmless the Company Entities Subsidiaries and their respective Representatives from and against any and all losses, damages, claims, interest, awards, judgments, penalties, costs and or expenses suffered or incurred by any of them in connection with the Financing arrangement of the Available Financing, and any information used in connection therewith, except with respect to (including x) any action taken information provided by the Company or any of its Subsidiaries pursuant to this Section 6.09 containing any untrue statement of a material fact or omitting 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 or (y) any fraud or intentional misrepresentation or willful misconduct by any such persons.
(d) All non-public or otherwise confidential information regarding the Company or its Subsidiaries obtained by Parent, Merger Sub, or any of their respective Representatives pursuant to this Section 6.09 shall be kept confidential in accordance with this Section 6.16) and costs and expenses incurred in defending against the foregoing, except Confidentiality Agreement. Notwithstanding the foregoing or anything to the extent such lossescontrary contained herein or in the Confidentiality Agreement, damages, claims, costs or expenses arise from the willful breach of this Agreement by Parent and the Company, as finally determined by a court the parties to the Confidentiality Agreement, hereby agree that the sharing of competent jurisdictionsuch confidential information with, or from fraud and the use of such information by, the Debt Financing Sources shall be permitted subject to the terms set forth in the Debt Commitment Letter so long as such information is disclosed subject to customary confidentiality arrangements.
(e) The Company and its Subsidiaries shall use reasonable best efforts to deliver all notices and take all other actions to facilitate the termination at the Effective Time of all commitments in respect of the Existing Credit Agreement, the repayment in full (or, in the case of letters of credit, the cash collateralization) on the part Closing Date of all obligations in respect of the CompanyIndebtedness thereunder, and the release on the Closing Date of any Liens (other than in respect of any such cash collateralization) securing such Indebtedness and guarantees of such Indebtedness. In furtherance and not in limitation of the foregoing, the Company and its Subsidiaries shall use reasonable best efforts to deliver to Parent prior to the Closing an executed payoff letter with respect to the Existing Credit Agreement (the “Payoff Letter”) in form and substance customary for transactions of this type, from the applicable agent on behalf of the persons to whom such Indebtedness is owed, which Payoff Letter together with any related release documentation shall, among other things, include the payoff amount and provide that Liens (other than in respect of any such cash collateralization), if any, securing such Indebtedness and guarantees, if any, of such Indebtedness shall, upon the payment of the amount set forth in the applicable Payoff Letter at or prior to the Effective Time, be released and terminated. The obligations of the Company pursuant to this Section 6.09(e) shall be subject to Parent and/or Merger Sub providing or causing to be provided all funds required to effect all such repayments at or prior to the Effective Time.
Appears in 1 contract
Financing Cooperation. (a) Subject to Section 6.16(b6.12(a), prior to Closing or termination of this Agreement, the Company shall, shall and shall cause its Subsidiaries subsidiaries to, at Parent’s sole expense, reasonably cooperate in connection with the arrangement of the Financing (for purposes of this Section 6.13, including (x) any financing to be issued or incurred in lieu of the bridge facility in the Debt Commitment Letters or pursuant to any flex applicable to the Debt Financing and (y) any alternative financing) as may be reasonably requested by Parent (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and its subsidiaries). Such cooperation by the Company and its subsidiaries and their respective Representatives to, use reasonable best efforts to reasonably cooperate with and reasonably assist Parentrepresentatives shall include, at the reasonable request of Parent’s request, sole cost (a) participation in a reasonable number of meetings, drafting sessions, rating agency presentations and expensedue diligence sessions, in connection (b) furnishing Parent and its Representatives with arrangingthe Required Information, obtaining and syndicating any Financing and causing the conditions in the Financing Documents and any commitment letters entered into in connection with such Financing to be satisfied, including using reasonable best efforts in (iiii) assisting with, Parent and furnishing information for the purposes of, its financing sources in the preparation of customary prospectuses (including any pro forma financial information offering and any information required under Article 18(2) of Commission Delegated Regulation (EU) 2019/980), offering documents, syndication documents and materials, including bank information memoranda and private placement memoranda, lender and investor rating agency presentations, rating agency materials and road show presentations and other customary marketing materials similar documents and materials, in connection with the Debt Financing (all such documents and materials, collectively, the “Marketing Offering Documents”), including providing customary authorization letters related thereto, (iv) facilitating the execution and delivery at the Offer Closing or, if there is no Offer Closing, the Merger Closing, of definitive documents related to the Financing, (it being understood v) facilitating the pledging of collateral in connection with the Financing, including executing and agreed that the Marketing Documents shall include (or otherwise be subject to) delivering any customary exculpation language, collateral documents and other customary certificates and documents as the case may be, with respect to the Company, its Affiliates and their respective Representatives), (ii) furnishing to the Parent as promptly as reasonably practicable financial statements and operational information (including consolidated financial statements for interim periods up until the Closing Date) that can be prepared without undue burden with respect to the Company and its Subsidiary as is reasonably requested by Parent (including a certificate of the “Required Information”), (iii) assisting in the preparation of schedules to collateral agreements by providing information chief financial officer of the Company Entities required with respect to be made available on such schedules for purposes solvency matters as of the arrangement or consummation of Offer Closing or, if there is no Offer Closing, the FinancingMerger Closing as contemplated by the Debt Commitment Letters), (iv) subject to any contractual agreement in effect, facilitating the pledging of collateral for the Financing, which shall not be required to be delivered or effective until at or promptly following the Effective Time, and (v) subject using reasonable best efforts to any contractual agreement in effectobtain customary payoff letters, obtaining the Payoff Letterredemption notices, and the related lien releases, releases of liens and instruments of termination or discharge, as applicable, required pursuant to Section 6.12, in each case which shall provide that, if sufficient funds are received by the financing sources under the Credit Agreement in order to pay off in full all obligations (other than the Excluded Obligations) in connection therewith or secured thereby, such release, termination and/or discharge shall be effective, and (vi) furnishing Parent as promptly as reasonably practical (using its reasonable best efforts to permit any cash and at least three (3) business days prior to the Closing Date) with all documentation and other information related to marketable securities of the Company and its Subsidiary required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulationssubsidiaries that can, including without violating Laws or incurring material Taxes, reasonably be made available to pay a portion of the PATRIOT Actaggregate purchase price, to be made available for that has been reasonably requested in writing by Parent or its Financing Sources at least ten (10) business days prior to the Closing Datepurpose. The Company hereby consents to the reasonable use of its and its Subsidiary’s logos in connection with the Financing so long as Financing, provided that such logos are used solely (i) in a manner that is not intended to or that is not reasonably likely to harm or disparage the Company or its Subsidiary or the reputation or goodwill of their marks and on such other customary terms and conditions as the Company or its Subsidiary shall reasonably impose. Parent shall, promptly upon termination of this Agreement, reimburse the Company for all reasonable out-of-pocket expenses and (ii) solely costs incurred in connection with a description of the Company, ’s or its business and products or the Merger.
(b) affiliates’ obligations under this Section 6.13. Notwithstanding the requirements of Section 6.16(a) or anything in this Agreement to the contrary, (i) neither the Company nor any of its Affiliates or their respective Representatives subsidiaries shall be required to enter into, approve or perform (or commit to enter into, approve or perform) any certificate, document, agreement, or instrument, in each case which will be effective prior to the Effective Time, (ii) nothing herein shall require cooperation contemplated thereby to the extent it would interfere unreasonably with the business or operations of the Company or any of its Affiliates or their respective Affiliates, (iii) none of the Company nor any of its Affiliates or their respective Representatives, will be required to (1) pay or commit to pay any commitment or other fee, (2) reimburse similar fee or incur enter into any costs or expenses definitive agreement or incur any other liability (including any guarantee, indemnity or pledge) in connection with the Financing or the Marketing Documents prior to the Effective Time, (3) provide any financial data other than the Required Information, or (4) provide any legal opinion or reliance letters or any certificate (in the case of the Company or its Subsidiary that would be required to be delivered prior to the Effective Time), comfort letter or opinion of any of its Representatives, (iv) nothing herein will involve any binding commitment by the Company, any of its Affiliates or any of their respective Representatives which commitment is not conditioned on the Effective Time and does not terminate without liability to the Company, its Affiliates and their respective Representatives upon the termination of this Agreement, and (v) nothing herein will require the Company, any of its Affiliates or any of their respective Representatives to provide any information or take any action, the disclosure or taking of which would violate applicable Legal Requirements, any fiduciary duty, any Contract or obligation of confidentiality owing to a third party, or jeopardize the protection of the attorney-client privilege (or similar protections) held by the Company or any of its Affiliates; provided that, if the Company does not provide or cause its Representatives to provide such access or such information in reliance on the foregoing, then the Company shall (1) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1) any Representative of the Company or its Subsidiary to deliver any certificate or opinion or take any other action under this Section 6.16 that could reasonably be expected to result in personal liability to such Representative; (2) the Board of Directors (or any committee or subcommittee thereof) or the board of directors, managers, managing member or any similar controlling body of any Subsidiary of the Company to approve (or otherwise take any corporate or similar action with respect to) any financing (including the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) the Company and its Subsidiary to take any action that would conflict with or violate its organizational or governance documents or any applicable Legal Requirements, or result in the contravention of, or that could reasonably be expected to result in a violation of breach of, or default under, any agreement to which the Company or its Subsidiary is a party.
(c) Subject to any applicable Legal Requirements, all non-public or other confidential information provided by the Company, its Subsidiary or any of their respective Representatives pursuant to this Agreement will be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Purchaser will be permitted to disclose such information to any Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties to the Financing and to any underwriters, initial purchasers or placement agents in connection with the Financing (and, in each case, to their respective counsel and auditorsor any alternative financing) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; or (ii) are subject to other confidentiality undertakings reasonably satisfactory prior to the Company and of which the Company is a beneficiaryEffective Time.
(d) If the Closing does not occur, promptly upon request by the Company, Parent will reimburse the Company for any documented and reasonable out-of-pocket costs and expenses (including attorneys’ fees) incurred by the Company or its Subsidiary in connection with the cooperation of the Company and its Subsidiary contemplated by this Section 6.16 (it being understood and agreed that the reimbursement set forth in this Section 6.16(d) shall not apply to any fees, costs, and expenses incurred by, or on behalf of, the Company, its Subsidiary or any of its Representatives in connection with its ordinary course financial reporting requirements or in the provision of data that, in each case, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding this Section 6.16).
(e) The Parent shall indemnify, defend and hold harmless the Company Entities and their respective Representatives from and against any and all losses, damages, claims, interest, awards, judgments, penalties, costs and expenses suffered or incurred by any of them in connection with the Financing (including any action taken in accordance with this Section 6.16) and costs and expenses incurred in defending against the foregoing, except to the extent such losses, damages, claims, costs or expenses arise from the willful breach of this Agreement by the Company, as finally determined by a court of competent jurisdiction, or from fraud on the part of the Company.
Appears in 1 contract
Samples: Merger Agreement (Gymboree Corp)
Financing Cooperation. (a) Subject Prior to Section 6.16(b)the Closing, prior to Closing or termination of this Agreement, the Company Seller shall, and shall cause its Subsidiaries and their respective Representatives the Sold Companies to, use reasonable best efforts to reasonably cooperate with and reasonably assist Parentprovide to Buyer, at the Parent’s request, Buyer's sole cost and expense, in connection with arranging, obtaining and syndicating any Financing and causing the conditions in the Financing Documents and any commitment letters entered into in connection with such Financing to be satisfied, including using reasonable best efforts in (i) assisting with, and furnishing information for the purposes of, the preparation of customary prospectuses (including any pro forma financial information and any information required under Article 18(2) of Commission Delegated Regulation (EU) 2019/980), offering documents, syndication documents and materials, including bank information memoranda and private placement memoranda, lender and investor presentations, rating agency materials and presentations and other customary marketing materials cooperation reasonably requested by Buyer that is necessary in connection with the Financing Debt Financing, including (all such documents i) participation by senior members of management of the Sold Companies (together with their counterparts at Buyer) in meetings, due diligence sessions and materials, collectively, the “Marketing Documents”) (it being understood and agreed that the Marketing Documents shall include (or otherwise be subject to) any customary exculpation language, as the case may be, sessions with respect to the Company, its Affiliates and their respective Representatives)rating agencies, (ii) furnishing to assisting Buyer in the Parent as promptly as reasonably practicable financial statements preparation of a confidential information memorandum and operational information (including consolidated financial statements marketing materials for interim periods up until the Closing Date) that can be prepared without undue burden with respect to the Company and its Subsidiary as is reasonably requested by Parent (the “Required Information”)Debt Financing, (iii) assisting preparing and furnishing Buyer as promptly as practicable (and in the preparation of schedules to collateral agreements by providing information any event within thirty (30) days of the Company Entities required to be made available on such schedules for purposes end of each calendar month and within forty-five (45) days of the arrangement or consummation end of each calendar quarter) with the unaudited consolidated balance sheet of the FinancingSold Companies as of the end of each calendar month and each calendar quarter prior to the Closing and the related statements of income, changes in equity and cash flows for such periods, (iv) subject to any contractual agreement in effect, reasonably facilitating the pledging of collateral for (provided that (A) none of the Financingdocuments or certificates shall be executed or delivered except in connection with the Closing, which (B) the effectiveness thereof shall not be required to conditioned upon, or become operative after, the occurrence of the Closing and (C) no liability shall be delivered imposed on the Seller or effective until at any Sold Company or promptly following the Effective Timeany officers or employees involved), and (v) subject providing to any contractual agreement in effect, obtaining the Payoff Letter, and the related lien releases, and instruments of termination or discharge, as applicable, required pursuant to Section 6.12, in each case which shall provide that, if sufficient funds are received by the Buyer’s financing sources under the Credit Agreement in order to pay off in full all obligations (other than the Excluded Obligations) in connection therewith or secured thereby, such release, termination and/or discharge shall be effective, and (vi) furnishing Parent as promptly as reasonably practical (and at least three (3) business days prior to the Closing Date) with all documentation and other information related to the Company and its Subsidiary required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act. Notwithstanding the foregoing, that has been reasonably (1) such requested in writing by Parent or its Financing Sources at least ten (10) business days prior to the Closing Date. The Company hereby consents to the use of its and its Subsidiary’s logos in connection cooperation shall not unreasonably interfere with the Financing so long as such logos are used solely (i) in a manner that is not intended to or that is not reasonably likely to harm or disparage the Company or its Subsidiary or the reputation or goodwill of the Company or its Subsidiary and (ii) solely in connection with a description of the Company, its ongoing business and products or operations of Seller, the Merger.
(b) Notwithstanding the requirements Sold Companies and any other Subsidiaries of Section 6.16(a) or anything in this Agreement to the contrarySeller, (i2) neither none of Seller, the Company nor Sold Companies and any other Subsidiaries of its Affiliates or their respective Representatives Seller shall be required to enter into, approve or perform (or commit to enter into, approve or perform) any certificate, document, agreement, or instrument, in each case which will be effective prior to the Effective Time, (ii) nothing herein shall require cooperation contemplated thereby to the extent it would interfere unreasonably with the business or operations of the Company or any of its Affiliates or their respective Affiliates, (iii) none of the Company nor any of its Affiliates or their respective Representatives, will be required to (1) pay or commit to pay any commitment or other fee, (2) reimburse or incur any costs or expenses fee or incur any other liability (including any guarantee, indemnity or pledge) obligation in connection with the financings contemplated by the Debt Financing or the Marketing Documents prior to the Effective TimeCommitment, (3) provide none of Seller, the Sold Companies and any financial data other than Subsidiaries of Seller or their respective officers, directors or employees shall be required to execute or enter into or perform any agreement with respect to the Required Informationfinancing contemplated by the Debt Financing Commitment, or (4) provide any legal opinion or reliance letters or any certificate (except in the case of the Company Sold Companies, for agreements that are contingent upon the Closing or its Subsidiary that are effective only after the Closing, (4) such assistance shall not include any actions that Seller reasonably believes would be required cause any representation, warranty, covenant or other obligation in this Agreement to be delivered breached or any condition to closing hereunder to fail to be satisfied, (5) 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 Effective Time)Closing for which Seller has not received prior reimbursement or is not otherwise indemnified by Buyer, comfort letter and (6) cause any director, officer or opinion employee of the Seller or any Subsidiary of its Representatives, Seller to incur any personal liability.
(ivb) nothing herein will involve any binding commitment by the CompanyNeither Seller, any of its Affiliates or Subsidiaries nor any of their respective Representatives which commitment is not conditioned on the Effective Time and does not terminate without liability to the Companyofficers, its Affiliates and their respective Representatives upon the termination of this Agreement, and (v) nothing herein will require the Company, any of its Affiliates or any of their respective Representatives to provide any information or take any action, the disclosure or taking of which would violate applicable Legal Requirements, any fiduciary duty, any Contract or obligation of confidentiality owing to a third party, or jeopardize the protection of the attorney-client privilege (or similar protections) held by the Company or any of its Affiliates; provided that, if the Company does not provide or cause its Representatives to provide such access or such information in reliance on the foregoing, then the Company shall (1) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1) any Representative of the Company or its Subsidiary to deliver any certificate or opinion or take any other action under this Section 6.16 that could reasonably be expected to result in personal liability to such Representative; (2) the Board of Directors (or any committee or subcommittee thereof) or the board of directors, managersemployees, managing member or any similar controlling body of any Subsidiary of the Company to approve (or otherwise take any corporate or similar action with respect to) any financing (including the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) the Company accountants, consultants, legal counsel, agents, investment bankers and its Subsidiary other representatives shall be required to take any action that would (i) subject such Person to actual or potential liability, to bear any cost or expense or to pay any commitment or other similar fee or make any other payment or incur any other liability or provide or agree to provide any indemnity in connection with the Debt Financing or their performance of their respective obligations under this Section 5.32 and any information utilized in connection therewith or (ii) conflict with or violate its any Laws or such Person's organizational or governance documents or any applicable Legal Requirements, or result in the contravention of, or that could reasonably be expected to result in a violation of breach of, or default under, any agreement to which the Company or its Subsidiary is a party.
(c) Subject to any applicable Legal Requirements, all non-public or other confidential information provided by the Company, its Subsidiary or any of their respective Representatives pursuant to this Agreement will be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Purchaser will be permitted to disclose such information to any Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties to the Financing and to any underwriters, initial purchasers or placement agents in connection with the Financing (and, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; or (ii) are subject to other confidentiality undertakings reasonably satisfactory to the Company and of which the Company is a beneficiary.
(d) If the Closing does not occur, promptly upon request by the Company, Parent will reimburse the Company for any documented and reasonable out-of-pocket costs and expenses (including attorneys’ fees) incurred by the Company or its Subsidiary in connection with the cooperation of the Company and its Subsidiary contemplated by this Section 6.16 (it being understood and agreed that the reimbursement set forth in this Section 6.16(d) documents. Buyer shall not apply to any fees, costs, and expenses incurred by, or on behalf of, the Company, its Subsidiary or any of its Representatives in connection with its ordinary course financial reporting requirements or in the provision of data that, in each case, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding this Section 6.16).
(e) The Parent shall indemnify, defend indemnify and hold harmless the Company Entities Seller, its Subsidiaries 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, claims, interest, awards, judgments, penalties, costs and expenses Losses suffered or incurred by any of them in connection with the arrangement of the Debt Financing and the performance of their respective obligations under this Section 5.32 (including any action taken in accordance with this Section 6.16) and 5.32). Buyer shall, promptly upon request by Seller, reimburse Seller for all reasonable costs and expenses incurred by Seller or its Subsidiaries in defending against the foregoingconnection with this Section 5.32 (including those of its accountants, except to the extent such lossesconsultants, damageslegal counsel, claimsagents, costs or expenses arise from the willful breach of this Agreement by the Company, as finally determined by a court of competent jurisdiction, or from fraud on the part of the Companyinvestment bankers and other representatives).
Appears in 1 contract
Samples: Stock Purchase Agreement (Caci International Inc /De/)
Financing Cooperation. (a) Subject During the period from the date of this Agreement to Section 6.16(b), prior to Closing or the earlier of the Effective Time and the valid termination of this AgreementAgreement in accordance with its terms, the Company and the Company Subsidiaries shall, and the Company shall cause use its Subsidiaries and their respective Representatives to, use reasonable best efforts to cause its and their Representatives to, provide to Parent and Sub all cooperation that is reasonably cooperate with requested by Parent and reasonably assist Parent, at the Parent’s request, sole cost and expense, that is customary in connection with arrangingthe arrangement of debt and equity financings (including without limitation, obtaining any portion of the contemplated Financing) in acquisition transactions (including, without limitation, any post Effective Time refinancing thereof which may be commenced and/or undertaken by Parent and syndicating Sub during the period from the date of this Agreement to the earlier of the Effective Time and the valid termination of this Agreement in accordance with its terms); provided, however, that no such requested cooperation may unreasonably interfere with the ongoing operations of the Company and the Company Subsidiaries. Such cooperation shall include, without limitation, (i) furnishing Parent, Sub and their Financing Sources as promptly as practicable with financial and other pertinent information regarding the Company and the Company Subsidiaries as may be reasonably requested in writing by Parent and identifying any Financing portion of such information that constitutes material non-public information, (ii) in each case, upon reasonable notice and causing in reasonably convenient locations, making senior management of the conditions Company available to participate in the Financing Documents a reasonable number of meetings, presentations, road shows, due diligence sessions, drafting sessions and any commitment letters entered into sessions with prospective financing sources, investors and rating agencies in connection with such Financing to be satisfiedthe Financing, including using reasonable best efforts in (iiii) assisting with, and furnishing information for the purposes of, with the preparation of customary prospectuses materials for rating agency presentations (including any pro forma financial information and any information required under Article 18(2) assisting in the obtaining of Commission Delegated Regulation (EU) 2019/980corporate, credit and facility ratings from ratings agencies), offering documents, syndication documents and materials, including bank information memoranda and private placement memoranda, lender bank information memoranda, prospectuses and investor presentations, rating agency materials and presentations and all other customary marketing materials material to be used in connection with the Financing (all such documents including customary authorization and materials, collectively, the “Marketing Documents”management representation letters) (it being understood and agreed that the Marketing Documents shall include (or otherwise be subject to) any customary exculpation language, as the case may be, with respect to the Company, its Affiliates and their respective Representatives), (ii) furnishing to the Parent as promptly as reasonably practicable financial statements and operational information (including consolidated financial statements for interim periods up until the Closing Date) that can be prepared without undue burden with respect to the Company and its Subsidiary as is reasonably requested by Parent (the “Required Information”), (iii) assisting in the preparation of schedules to collateral agreements by providing information of the Company Entities required to be made available on such schedules for purposes of the arrangement or consummation of the Financing, (iv) subject to any contractual agreement in effect, facilitating the pledging of collateral for the Financing, which shall not be required to be delivered or effective until at or promptly following the Effective Time, (v) subject to any contractual agreement in effect, obtaining the Payoff Letter, and the related lien releases, and instruments of termination or discharge, as applicable, required pursuant to Section 6.12, in each case which shall provide that, if sufficient funds are received by the financing sources under the Credit Agreement in order to pay off in full all obligations (other than the Excluded Obligations) in connection therewith or secured thereby, such release, termination and/or discharge shall be effective, and (vi) furnishing Parent as promptly as reasonably practical (and at least three (3) business days prior to the Closing Date) with all documentation and other information related to the Company and its Subsidiary required by regulatory authorities under in connection with applicable “"know your customer” " and anti-money laundering rules and regulations, including the PATRIOT ActU.S.A. Patriot Act of 2001, that has been (iv) using reasonable best efforts to obtain accountant's comfort letters as reasonably requested by Parent, (v) taking all corporate actions, including filing for any required consents or approvals, subject to and only effective upon the occurrence of the Effective Time, required to permit the consummation of the Financing and to permit the proceeds thereof to be made available to the Surviving Corporation immediately after the Effective Time, (vi) providing, as soon as prepared and made available to the Company management team, unaudited consolidated monthly financial statements of the Company (excluding footnotes) consisting of a balance sheet, income statement and statement of cash flows, (vii) filing a Quarterly Report on Form 10-Q within forty-five (45) calendar days after the end of each fiscal quarter end, which shall comply as to form in writing by Parent all material respects with the applicable requirements of the Exchange Act and shall contain the Company's unaudited financial statements, (viii) permitting officers of the Company who will be officers of the Surviving Corporation after the Effective Time to execute and deliver any pledge and security documents, other definitive financing documents or its Financing Sources at least ten other certificates or documents (10) business days but in each case, not effective prior to the Closing Date. Effective Time) as may be reasonably requested by Parent (including a certificate of the chief executive officer or chief financial officer of the Company with respect to solvency matters and using reasonable best efforts to obtain consents of accountants to use their reports in any materials relating to the Debt Financing) and otherwise reasonably facilitating the pledging of collateral, including without limitation, by taking all necessary action to facilitate the elimination of any Lien on any of the properties or assets of the Company or any of the Company Subsidiaries, other than Permitted Liens, (ix) promptly after providing to any agent or lender under the Existing Credit Agreements, providing true and correct copies of any borrowing base certificates, compliance certificates and/or other notices, certificates and documents provided to any agent or lender from time to time under or pursuant to any of the Existing Credit Agreements (and/or under or pursuant to any of the collateral or security Contracts related to any of the Existing Credit Agreements), (x) providing, as soon as prepared and made available to the Company management team following the completion of each week, weekly sales and gross margin information with respect to the Company and the Company Subsidiaries in the format that such information is currently prepared by the Company and the Company Subsidiaries, (xi) with respect to the Owned Real Property, providing Parent copies of any existing title policies and surveys in the possession or under the direction or control of the Company or any Company Subsidiary, and permitting officers of the Company who will be officers of the Surviving Corporation after the Effective Time to execute and deliver usual and customary deeds conveying all or any portion of the Owned Real Property to the purchaser thereof, usual and customary survey affidavits of "no-change" to the title company (with respect to any Owned Real Property with no changes from the date of the existing survey) and reasonable and customary documents for the issuance of title policies, including owners' affidavits, transfer tax documents and corporate authority documents, (xii) in connection with the PLCC Portfolio Sale, provide to Parent and Sub all cooperation and information that is reasonably requested by Parent and that is customary in connection with the arrangement of a private label credit card portfolio sale, including without limitation, usual and customary compliance information and financial information, and cooperation in making and filing any required notices or filings in connection with any obtaining any required consent or approval of any Governmental Authority in connection therewith and (xiii) otherwise taking reasonable actions within its control to cooperate in satisfying the conditions precedent set forth in the Debt Commitment Letter or any definitive document related to the Financing or any condition precedent to obtaining the proceeds of the Financing contemplated by any of the Permissive Debt Financings; provided, however, that (A) no obligation of the Company or any of its Subsidiaries under any certificate, agreement, notice or other document or instrument shall be effective until the Effective Time, and none of the Company or any of its Subsidiaries shall be required to pay or incur any liability for any commitment or other similar fee, pay or incur any liability for any expense (other than as provided in this Agreement) or incur any other obligation or liability in connection with the Financing prior to the Effective Time and (B) neither the Company nor any Company Subsidiary, nor any of their respective directors or officers shall be required to take any action to authorize or approve the Financing (or any Alternative Debt Financing) prior to the Effective Time.
(b) The Company hereby consents to the use of its and its Subsidiary’s Subsidiaries' trademarks, service marks or logos in connection with the Financing so long as Debt Financing; provided that such trademarks, service marks or logos are used solely (i) in a manner that is not intended to or that is not reasonably likely to harm or disparage the Company or any of its Subsidiary Subsidiaries or the reputation or goodwill of the Company or any of its Subsidiary Subsidiaries or any of their respective intellectual property rights and provided that in each instance the use of its and its Subsidiaries' trademarks, service marks or logos is first submitted to and approved in writing by the Company (ii) solely in connection with a description of the Companywhich approval shall not be unreasonably withheld, its business and products conditioned or the Mergerdelayed).
(bc) Notwithstanding the requirements of Section 6.16(a) or anything Nothing in this Agreement to the contrary, (i) neither the Company nor any of its Affiliates or their respective Representatives shall be required to enter into, approve or perform (or commit to enter into, approve or perform) any certificate, document, agreement, or instrument, in each case which will be effective prior to the Effective Time, (ii) nothing herein Section 7.09 shall require such cooperation contemplated thereby to the extent it would interfere unreasonably with the business (i) cause any condition to Closing set forth in Article VIII to fail to be satisfied or operations otherwise cause any breach of this Agreement (unless waived by Parent), (ii) require the Company or any of its Affiliates or their respective Affiliates, (iii) none of the Company nor any of its Affiliates or their respective Representatives, will be required to (1) pay or commit to pay any commitment or other fee, (2) reimburse or incur any costs or expenses or incur any other liability (including any guarantee, indemnity or pledge) in connection with the Financing or the Marketing Documents prior to the Effective Time, (3) provide any financial data other than the Required Information, or (4) provide any legal opinion or reliance letters or any certificate (in the case of the Company or its Subsidiary that would be required to be delivered prior to the Effective Time), comfort letter or opinion of any of its Representatives, (iv) nothing herein will involve any binding commitment by the Company, any of its Affiliates or any of their respective Representatives which commitment is not conditioned on the Effective Time and does not terminate without liability to the Company, its Affiliates and their respective Representatives upon the termination of this Agreement, and (v) nothing herein will require the Company, any of its Affiliates or any of their respective Representatives to provide any information or take any action, the disclosure or taking of which would violate applicable Legal Requirements, any fiduciary duty, any Contract or obligation of confidentiality owing to a third party, or jeopardize the protection of the attorney-client privilege (or similar protections) held by the Company or any of its Affiliates; provided that, if the Company does not provide or cause its Representatives to provide such access or such information in reliance on the foregoing, then the Company shall (1) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1) any Representative of the Company or its Subsidiary to deliver any certificate or opinion or take any other action under this Section 6.16 that could reasonably be expected to result in personal liability to such Representative; (2) the Board of Directors (or any committee or subcommittee thereof) or the board of directors, managers, managing member or any similar controlling body of any Subsidiary of the Company to approve (or otherwise take any corporate or similar action with respect to) any financing (including the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) the Company and its Subsidiary Subsidiaries to take any action that would will conflict with or violate its the Company's organizational or governance documents or any applicable Legal Requirements, Laws or result in the contravention of, or that could would reasonably be expected to result in a violation of or breach of, or default under, any agreement Contract to which the Company or any of its Subsidiary Subsidiaries is a party.
party (cin each case prior to the Effective Time) Subject to or (iii) result in any applicable Legal Requirements, all non-public officer or other confidential information provided by director of the Company, its Subsidiary Company or any of their respective Representatives pursuant to this Agreement will be kept confidential in accordance its Subsidiaries incurring any personal liability with the Confidentiality Agreement, except that Parent and Purchaser will be permitted to disclose such information respect to any Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties matters relating to the Financing and to any underwriters, initial purchasers or placement agents in connection with the Financing (and, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; or (ii) are subject to other confidentiality undertakings reasonably satisfactory to the Company and of which the Company is a beneficiaryFinancing.
(d) If the Closing does not occurParent shall promptly, promptly upon request by the Company, Parent will reimburse the Company for any all of its documented and reasonable out-of-pocket costs and expenses (including reasonable attorneys’ ' fees) incurred by the Company, the Company Subsidiaries and their respective Representatives in connection with any cooperation expressly required by or requested in accordance with this Section 7.09. Parent and Sub shall indemnify and hold harmless the Company, its Subsidiary Affiliates and their respective Representatives for and against any and all liabilities, losses, damages, claims, reasonable costs and expenses, interest, awards, judgments and penalties suffered or incurred by them in connection with the cooperation arrangement of the Financing (other than arising from (x) fraud, gross negligence, willful misconduct or intentional misrepresentation by the Company or any Company Subsidiary or (y) misstatements or omissions in written historical information of the type prepared by the Company and its Subsidiary contemplated by this Section 6.16 (it being understood and agreed that the reimbursement set forth in this Section 6.16(d) shall not apply to any fees, costs, and expenses incurred by, or on behalf of, the Company, its Subsidiary or any of its Representatives in connection with its ordinary course financial reporting requirements or in the provision of data that, in each case, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives Company Subsidiaries in the ordinary course of business notwithstanding this Section 6.16).
(e) The Parent shall indemnify, defend and hold harmless that is provided by the Company Entities and their respective Representatives from and against or any and all losses, damages, claims, interest, awards, judgments, penalties, costs and expenses suffered or incurred by any of them Company Subsidiary specifically for use in connection with the Financing (including any action taken in accordance Debt Financing) to the fullest extent permitted by applicable Law and with this Section 6.16) and costs and expenses incurred in defending against the foregoing, except appropriate contribution to the extent such lossesindemnification is not available, damages, claims, costs or expenses arise from and the willful breach Limited Guarantee shall guarantee the obligations of Parent and Sub pursuant to this paragraph of this Agreement by the Company, as finally determined by a court of competent jurisdiction, or from fraud on the part of the CompanySection 7.09.
Appears in 1 contract
Financing Cooperation. (ai) Subject to the limitation set forth in Section 6.16(b)5.1, prior to Closing or termination during the period from the date of this Agreement, the Company shall, and shall cause its Subsidiaries and their respective Representatives to, use reasonable best efforts Agreement to reasonably cooperate with and reasonably assist Parent, at the Parent’s request, sole cost and expense, in connection with arranging, obtaining and syndicating any Financing and causing the conditions in the Financing Documents and any commitment letters entered into in connection with such Financing to be satisfied, including using reasonable best efforts in (i) assisting with, and furnishing information for the purposes of, the preparation of customary prospectuses (including any pro forma financial information and any information required under Article 18(2) of Commission Delegated Regulation (EU) 2019/980), offering documents, syndication documents and materials, including bank information memoranda and private placement memoranda, lender and investor presentations, rating agency materials and presentations and other customary marketing materials in connection with the Financing (all such documents and materials, collectively, the “Marketing Documents”) (it being understood and agreed that the Marketing Documents shall include (or otherwise be subject to) any customary exculpation language, as the case may be, with respect to the Company, its Affiliates and their respective Representatives), (ii) furnishing to the Parent as promptly as reasonably practicable financial statements and operational information (including consolidated financial statements for interim periods up until the Closing Date) that can be prepared without undue burden with respect to the Company and its Subsidiary as is reasonably requested by Parent (the “Required Information”), (iii) assisting in the preparation of schedules to collateral agreements by providing information of the Company Entities required to be made available on such schedules for purposes of the arrangement or consummation of the Financing, (iv) subject to any contractual agreement in effect, facilitating the pledging of collateral for the Financing, which shall not be required to be delivered or effective until at or promptly following the Effective Time, (v) subject the parties hereto shall cooperate in good faith to implement any contractual agreement in effectnecessary, obtaining the Payoff Letter, and the related lien releases, and instruments of termination appropriate or discharge, as applicable, required pursuant to Section 6.12, in each case which shall provide that, if sufficient funds are received by the financing sources under the Credit Agreement in order to pay off in full all obligations (other than the Excluded Obligations) in connection therewith or secured thereby, such release, termination and/or discharge shall be effective, and (vi) furnishing Parent as promptly as reasonably practical (and at least three (3) business days prior to the Closing Date) with all documentation and other information related to the Company and its Subsidiary required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, that has been reasonably requested in writing by Parent or its Financing Sources at least ten (10) business days prior to the Closing Date. The Company hereby consents to the use of its and its Subsidiary’s logos desirable arrangements in connection with each party’s indentures or other documents governing or relating to indebtedness with respect to any financing matters concerning the Financing so long as such logos are used solely (i) in a manner that is not intended to or that is not reasonably likely to harm or disparage Company, Parent and the Company or its Subsidiary or the reputation or goodwill of the Company or its Subsidiary and Transactions.
(ii) solely in connection with a description of the CompanyThe parties hereto acknowledge and agree that, its business and products or the Merger.
(b) Notwithstanding the requirements of Section 6.16(a) or anything in this Agreement to the contrary, (i) neither the Company nor any of its Affiliates or their respective Representatives shall be required to enter into, approve or perform (or commit to enter into, approve or perform) any certificate, document, agreement, or instrument, in each case which will be effective prior to the Effective Time, (ii) nothing herein shall require cooperation contemplated thereby subject to the extent limitation set forth in Section 5.1, it would interfere unreasonably may be necessary for the Company and/or Parent to enter into financing transactions (including, without limitation, the raising of new financing, the refinancing of existing indebtedness, the retirement, prepayment or redemption of existing indebtedness and/or producing amendments, amendment and restatements, modifications, waivers or consents in relating to existing indebtedness) (any such financing transaction, a “Pre-Merger Financing Transaction”). In connection with any Pre-Merger Financing Transaction, the parties hereto shall, and shall cause their subsidiaries and their respective officers, directors, employees, accountants, consultants, investment bankers, legal counsel, agents, financial advisors and other advisors and representatives to cooperate and use their reasonable best efforts to provide such information and documentation to each other as may be necessary or reasonably desirable in connection with the business structuring, marketing and execution of any Pre-Merger Financing Transaction, including (A) participating in meetings and due diligence sessions and rating agency presentations in connection with the Pre-Merger Financing Transaction and preparing materials in connection therewith, (B) assisting with the preparation of any portion of the disclosure in relation to the Pre-Merger Financing Transaction that relates to the Merger or operations the Transactions (including any historical and pro forma financial information and operational data), (C) executing and delivering any pledge and security document, guarantees, indentures, other definitive financing documents, and other certificates or documents and legal opinions as may be reasonably requested (provided such documents will not take effect until the Effective Time) and (D) delivering, or procuring the delivery of, such information, certificates, authorization letters, comfort letters, representation letters and other documents as may be necessary or desirable by any party to any such Pre-Merger Financing Transaction (including, without limitation, any investment or commercial banks appointed in any capacity with respect to any Pre-Merger Financing Transaction). Neither party shall enter into any Pre-Merger Financing Transaction, or incur any fees and expenses in connection with any Pre-Merger Financing Transaction that would be subject to reimbursement under Section 6.5, without the other party’s prior written consent (not to be unreasonably withheld); provided that, for the avoidance of doubt, consent shall not be required for (x) any inter-company indebtedness solely involving Parent and/or direct or indirect wholly-owned subsidiaries of Parent or solely involving the Company and/or direct or indirect wholly-owned subsidiaries of the Company and (y) any other action permitted by Section 5.1(a)(vi) or any of its Affiliates or their respective AffiliatesSection 5.1(b)(vi), as applicable.
(iii) none of Notwithstanding anything to the contrary in this Section 5.1(d), neither the Company nor any of its Affiliates or their respective Representatives, will Parent shall be required to (x) enter into any Pre-Merger Financing Transaction that is not conditioned upon the consummation of the Merger or (y) disclose any information pursuant to this Section 5.1(d) to the extent that (A) in the reasonable good faith judgment of such party, any Applicable Law requires such party or its subsidiaries to restrict or prohibit access to any such information, (B) in the reasonable good faith judgment of such party, the information is subject to confidentiality obligations to a third party or (C) disclosure of any such information or document would result in the loss of attorney-client privilege; provided, further, that with respect to clauses (A) through (C) of this Section 5.1(d), the Company or Parent, as applicable, shall use its commercially reasonable efforts to (1) pay or commit obtain the required consent of any third party necessary to pay any commitment or other feeprovide such disclosure, (2) reimburse or incur any costs or expenses or incur any other liability (including any guarantee, indemnity or pledge) in connection with the Financing or the Marketing Documents prior develop an alternative to providing such information so as to address such matters that is reasonably acceptable to the Effective Time, Company and Parent and (3) provide any financial data other than the Required Information, or (4) provide any legal opinion or reliance letters or any certificate (in the case of the Company or its Subsidiary that would be required to be delivered prior to the Effective Timeclauses (A) through (C), comfort letter utilize the procedures of a joint defense agreement or opinion of any of its Representatives, (iv) nothing herein will involve any binding commitment by implement such other techniques if the Company, any of its Affiliates or any of their respective Representatives which commitment is not conditioned on the Effective Time and does not terminate without liability to the Company, its Affiliates and their respective Representatives upon the termination of this Agreement, and (v) nothing herein will require the Company, any of its Affiliates or any of their respective Representatives to provide any information or take any action, parties determine that doing so would reasonably permit the disclosure or taking of which would violate applicable Legal Requirements, any fiduciary duty, any Contract or obligation of confidentiality owing to a third party, or jeopardize the protection of the attorney-client privilege (or similar protections) held by the Company or any of its Affiliates; provided that, if the Company does not provide or cause its Representatives to provide such access or such information in reliance on the foregoing, then the Company shall (1) provide a written notice to Parent stating that it is withholding such access without violating Applicable Law or such information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize jeopardizing such privilege. Nothing in this Section 6.16 will require (1) any Representative of the Company or its Subsidiary to deliver any certificate or opinion or take any other action under this Section 6.16 that could reasonably be expected to result in personal liability to such Representative; (2) the Board of Directors (or any committee or subcommittee thereof) or the board of directors, managers, managing member or any similar controlling body of any Subsidiary of the Company to approve (or otherwise take any corporate or similar action with respect to) any financing (including the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) the Company and its Subsidiary to take any action that would conflict with or violate its organizational or governance documents or any applicable Legal Requirements, or result in the contravention of, or that could reasonably be expected to result in a violation of breach of, or default under, any agreement to which the Company or its Subsidiary is a party.
(c) Subject to any applicable Legal Requirements, all non-public or other confidential information provided by the Company, its Subsidiary or any of their respective Representatives pursuant to this Agreement will be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Purchaser will be permitted to disclose such information to any Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties to the Financing and to any underwriters, initial purchasers or placement agents in connection with the Financing (and, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; or (ii) are subject to other confidentiality undertakings reasonably satisfactory to the Company and of which the Company is a beneficiary.
(d) If the Closing does not occur, promptly upon request by the Company, Parent will reimburse the Company for any documented and reasonable out-of-pocket costs and expenses (including attorneys’ fees) incurred by the Company or its Subsidiary in connection with the cooperation of the Company and its Subsidiary contemplated by this Section 6.16 (it being understood and agreed that the reimbursement set forth in this Section 6.16(d) shall not apply to any fees, costs, and expenses incurred by, or on behalf of, the Company, its Subsidiary or any of its Representatives in connection with its ordinary course financial reporting requirements or in the provision of data that, in each case, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding this Section 6.16).
(e) The Parent shall indemnify, defend and hold harmless the Company Entities and their respective Representatives from and against any and all losses, damages, claims, interest, awards, judgments, penalties, costs and expenses suffered or incurred by any of them in connection with the Financing (including any action taken in accordance with this Section 6.16) and costs and expenses incurred in defending against the foregoing, except to the extent such losses, damages, claims, costs or expenses arise from the willful breach of this Agreement by the Company, as finally determined by a court of competent jurisdiction, or from fraud on the part of the Company.
Appears in 1 contract
Samples: Merger Agreement (IHS Inc.)
Financing Cooperation. (a) Subject to Without limiting, amending or waiving any other obligation of a Party under this Agreement (including Section 6.16(b8.04), prior to Closing or termination of this Agreementthe Closing, the Company shalleach Party shall use its respective reasonable best efforts, and shall cause its Subsidiaries and their respective Representatives toofficers, directors and employees to use their reasonable best efforts to reasonably cooperate with and reasonably assist Parent, at the Parent’s request, sole cost and expense, provide such customary cooperation in connection with arranging, obtaining the timely arrangement and syndicating any Financing and causing implementation of the conditions debt financing described in the Financing Documents and Convertible Subscription Agreement(s) on the terms specified therein as the other Party may reasonably request from time to time as long as any commitment letters entered into in connection with such Financing request is timely made so as not to be satisfieddelay the Closing, including using reasonable best efforts in including:
(i) assisting with, and furnishing information for the purposes of, with the preparation of customary prospectuses (including any pro forma financial information and any information required under Article 18(2) of Commission Delegated Regulation (EU) 2019/980), offering documents, syndication documents and materials, including bank information memoranda and private placement memoranda, lender and investor presentations, rating agency materials and presentations and other customary marketing materials in connection with the Financing (all such documents and materials, collectively, Convertible Notes indenture governing the “Marketing Documents”) (it being understood and agreed that the Marketing Documents shall include (or otherwise be subject to) any customary exculpation language, as the case may be, with respect to the Company, its Affiliates and their respective Representatives), (ii) furnishing to the Parent Convertible Notes as promptly as reasonably practicable financial statements after the date hereof and operational information (including consolidated financial statements for interim periods up until consistent with the Closing Date) that can be prepared without undue burden with respect to the Company and its Subsidiary as is reasonably requested by Parent (the “Required Information”Convertible Subscription Agreement(s), including engaging a trustee and settlement agent (iiiin Acquiror’s reasonable discretion);
(ii) assisting in the preparation of schedules to collateral agreements by providing information of the Company Entities required to be made available on such schedules for purposes of the arrangement or consummation of the Financing, (iv) subject to any contractual agreement in effect, facilitating the pledging of collateral for the Financing, which shall not be required to be delivered or effective until at or promptly following the Effective Time, (v) subject to any contractual agreement in effect, obtaining the Payoff Letterof, and the related lien releasesexecuting and delivering, and instruments of termination definitive financing documents, including documents contemplated by or discharge, as applicable, required pursuant to Section 6.12, in each case which shall provide that, if sufficient funds are received by the financing sources under the Credit Agreement in order to pay off in full all obligations (other than the Excluded Obligations) in connection therewith or secured thereby, such release, termination and/or discharge shall be effective, and (vi) furnishing Parent as promptly as reasonably practical (and at least three (3) business days prior to the Closing Date) with all documentation and other information related to the Company and its Subsidiary Convertible Notes indenture, customary closing certificates as may be required by regulatory authorities under applicable “know your customer” the issuance of the Convertible Notes (none of which shall be a solvency or similar certificate) and anti-money laundering rules and regulations, including the PATRIOT Act, that has been other customary documents as may be reasonably requested in writing by Parent or its Financing Sources at least ten either Party (10) business days prior to the Closing Date. The Company hereby consents to the use all of its and its Subsidiary’s logos in connection with the Financing so long as such logos are used solely (i) in a manner that is not intended to or that is not reasonably likely to harm or disparage the Company or its Subsidiary or the reputation or goodwill of the Company or its Subsidiary and (ii) solely in connection with a description of the Company, its business and products or the Merger.
(b) Notwithstanding the requirements of Section 6.16(a) or anything in this Agreement to the contrary, (i) neither the Company nor any of its Affiliates or their respective Representatives shall be required to enter into, approve or perform (or commit to enter into, approve or perform) any certificate, document, agreement, or instrument, in each case which will be effective prior to the Effective Time, (ii) nothing herein shall require cooperation contemplated thereby to the extent it would interfere unreasonably with the business or operations of the Company or any of its Affiliates or their respective Affiliates, (iii) none of the Company nor any of its Affiliates or their respective Representatives, will be required to (1) pay or commit to pay any commitment or other fee, (2) reimburse or incur any costs or expenses or incur any other liability (including any guarantee, indemnity or pledge) in connection with the Financing or the Marketing Documents prior to the Effective Time, (3) provide any financial data other than the Required Information, or (4) provide any legal opinion or reliance letters or any certificate (in the case of the Company and its Subsidiaries shall be subject to the occurrence of the Closing and none of which require the delivery of a legal opinion); and
(iii) cooperating with the other Party, and taking all corporate actions, subject to the occurrence of the Closing, reasonably requested by the other Party to permit the consummation of the transactions contemplated by the Convertible Subscription Agreement(s).
(b) Pursuant to one or its Subsidiary that would be more Subscription Agreements, one or more of the PIPE Investors is required to be delivered deposit all or a portion of the Common PIPE Investment and/or Convertible PIPE Investment Amount into an escrow account two (2) Business Days prior to the Effective TimeClosing. In connection therewith, Acquiror shall (in Acquiror’s reasonable discretion) designate and appoint one or more United States escrow agents and establish one or more United States escrow accounts and complete all “know-your-customer” information as required by such escrow agent as promptly as practicable after the date hereof to hold prior to the Closing, and disburse to the Acquiror at or prior to the closing thereof (and in any event prior to the Closing), comfort letter or opinion the portion of any of its Representativesthe Common PIPE Investment Amount and/or Convertible PIPE Investment Amount, (iv) nothing herein will involve any binding commitment by as applicable, subject thereto; provided, however, the Company, any of its Affiliates or any of their respective Representatives which commitment is not conditioned on the Effective Time and does not terminate without liability Company hereby consents to the Company, its Affiliates designation and their respective Representatives upon the termination appointment of this Agreement, and (v) nothing herein will require the Company, any of its Affiliates State Street Bank as United States escrow agent for all or any of their respective Representatives to provide any information or take any action, the disclosure or taking of which would violate applicable Legal Requirements, any fiduciary duty, any Contract or obligation of confidentiality owing to a third party, or jeopardize the protection portion of the attorney-client privilege (or similar protections) held by the Company or any of its Affiliates; provided that, if the Company does not provide or cause its Representatives to provide such access or such information in reliance on the foregoing, then the Company shall (1) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1) any Representative of the Company or its Subsidiary to deliver any certificate or opinion or take any other action under this Section 6.16 that could reasonably be expected to result in personal liability to such Representative; (2) the Board of Directors (or any committee or subcommittee thereof) or the board of directors, managers, managing member or any similar controlling body of any Subsidiary of the Company to approve (or otherwise take any corporate or similar action with respect to) any financing (including the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) the Company and its Subsidiary to take any action that would conflict with or violate its organizational or governance documents or any applicable Legal Requirements, or result in the contravention of, or that could reasonably be expected to result in a violation of breach of, or default under, any agreement to which the Company or its Subsidiary is a partyConvertible PIPE Investment Amount.
(c) Subject Notwithstanding anything to any applicable Legal Requirements, all non-public or other confidential information provided by the Company, its Subsidiary or any of their respective Representatives pursuant to contrary in this Agreement will be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Purchaser will be permitted to disclose such information to any Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties to the Financing and to any underwriters, initial purchasers or placement agents in connection with the Financing (and, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; or (ii) are subject to other confidentiality undertakings reasonably satisfactory to the Company and of which the Company it is a beneficiary.
(d) If the Closing does not occur, promptly upon request by the Company, Parent will reimburse the Company for any documented and reasonable out-of-pocket costs and expenses (including attorneys’ fees) incurred by the Company or its Subsidiary in connection with the cooperation of the Company and its Subsidiary contemplated by this Section 6.16 (it being understood and agreed that the reimbursement condition precedent set forth in this Section 6.16(d10.02(b), as applied to Holdings’ and the Company’s obligations under Section 9.08(a), shall be deemed to be satisfied unless the Convertible PIPE Investment has not been obtained as a result of Holdings’ or the Company’s intentional breach of its obligations under Section 9.08(a) shall not apply to any fees, costsand such intentional breach has been noticed at least 15 days prior to, and expenses incurred by, or on behalf remains uncured as of, the Company, its Subsidiary or any of its Representatives in connection with its ordinary course financial reporting requirements or in the provision of data that, in each case, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding this Section 6.16).
(e) The Parent shall indemnify, defend and hold harmless the Company Entities and their respective Representatives from and against any and all losses, damages, claims, interest, awards, judgments, penalties, costs and expenses suffered or incurred by any of them in connection with the Financing (including any action taken date Closing is scheduled to occur as determined in accordance with this Section 6.16) and costs and expenses incurred in defending against the foregoing, except to the extent such losses, damages, claims, costs or expenses arise from the willful breach of this Agreement by the Company, as finally determined by a court of competent jurisdiction, or from fraud on the part of the Company4.01.
Appears in 1 contract
Financing Cooperation. (a) Subject Purchaser shall use its reasonable best efforts to consummate and obtain the Financing on the terms and conditions described in the Commitment Letter, including to (i) maintain in effect the Commitment Letter, (ii) negotiate definitive agreements with respect thereto on terms and conditions (including the “flex” provisions) contemplated by the Commitment Letter and execute and deliver to P&G a copy thereof substantially concurrently with such execution, (iii) satisfy on a timely basis all conditions applicable to Purchaser in the Commitment Letter that are within its control and comply with its obligations thereunder, and (iv) enforce its rights under the Commitment Letter in the event of a breach by the financing sources that impedes or delays Closing, including seeking specific performance of the parties thereunder. In the event that all conditions to the Commitment Letter have been satisfied, or upon funding will be satisfied, Purchaser shall use its reasonable best efforts to cause the lenders and the other Persons providing such Financing to fund on the Closing Date the Financing (together with funds from other Funding Sources) required to consummate the Acquisition, and to fund, when applicable, any portion of the Financing required to satisfy any obligations of Purchaser in connection with a Sanofi Put (other than the P&G Funding Amount) (in each case, including by Purchaser taking enforcement action, including seeking specific performance, to cause such lenders and the other Persons providing such Financing to fund such Financing). Purchaser shall have the right from time to time to amend, replace, supplement or otherwise modify, or waive any of its rights under, the Commitment Letter and/or substitute other debt or equity financing for all or any portion of the Financing from the same and/or alternative financing sources, provided that any such amendment, replacement, supplement or other modification to or waiver of any provision of the Commitment Letter that amends the Financing and/or substitution of all or any portion of the Financing shall not (A) expand upon or amend in any way that is adverse to P&G the conditions precedent or contingencies to the Financing as set forth in the Commitment Letter or (B) be reasonably expected to prevent or impede or delay the consummation of the Acquisition. Purchaser shall be permitted to reduce the amount of Financing under the Commitment Letter in its reasonable discretion, provided, that Purchaser shall not reduce the Financing to an amount committed below the amount that is required, together with other Funding Sources, to satisfy (1) Purchaser’s obligations under Section 6.16(b2.04, (2) any obligations of Purchaser in connection with a Sanofi Put (other than the P&G Funding Amount), prior and (3) the payment of all fees and expenses reasonably expected to Closing be incurred in connection herewith, and provided, further, that such reduction shall not (A) expand upon or amend in any way that is adverse to P&G the conditions precedent or contingencies to the Financing as set forth in the Commitment Letter or (B) be reasonably expected to prevent or impede or delay the consummation of the Acquisition and the other transactions contemplated by this Agreement. If any portion of the Financing becomes unavailable or Purchaser becomes aware of any event or circumstance that makes any portion of the Financing unavailable, in each case, on the terms and conditions (including the “flex” provisions) contemplated in the Commitment Letter and such portion is reasonably required to satisfy (1) the Purchaser’s obligations under Section 2.04, (2) any obligations of the Purchaser in connection with the Sanofi Put (other than the P&G Funding Amount), and (3) the payment of all fees and expenses reasonably expected to be incurred in connection herewith, Purchaser shall use its reasonable best efforts to arrange and obtain alternative financing from alternative financing sources in an amount sufficient (together with other Funding Sources) to satisfy (1) the Purchaser’s obligations under Section 2.04, (2) any obligations of the Purchaser in connection with the Sanofi Put (other than the P&G Funding Amount), and (3) the payment of all fees and expenses reasonably expected to be incurred in connection herewith upon conditions no less favorable than those in the Commitment Letter, as promptly as practicable following the occurrence of such event. Purchaser shall give P&G prompt oral and written notice (but in any event not later than 48 hours after the Purchaser becoming aware of occurrence) of any material breach by any party to the Commitment Letter or of any condition not likely to be satisfied, in each case, of which Purchaser becomes aware or any termination of this Agreement, the Company shallCommitment Letter. Purchaser shall keep P&G informed on a reasonably current basis of the status of its efforts to arrange the Financing.
(b) P&G shall provide, and shall cause its Subsidiaries Affiliates, and their respective Representatives to, shall use its reasonable best efforts to reasonably cooperate with and reasonably assist Parent, at the Parent’s request, sole cost and expense, in connection with arranging, obtaining and syndicating any Financing and causing the conditions in the Financing Documents and any commitment letters entered into in connection with such Financing to be satisfied, including using reasonable best efforts in (i) assisting with, and furnishing information for the purposes of, the preparation cause each of customary prospectuses (including any pro forma financial information and any information required under Article 18(2) of Commission Delegated Regulation (EU) 2019/980), offering documents, syndication documents and materials, including bank information memoranda and private placement memoranda, lender and investor presentations, rating agency materials and presentations and other customary marketing materials in connection with the Financing (all such documents and materials, collectively, the “Marketing Documents”) (it being understood and agreed that the Marketing Documents shall include (or otherwise be subject to) any customary exculpation language, as the case may be, with respect to the Company, its Affiliates and their respective Representatives)representatives, (ii) furnishing including legal, tax, regulatory and accounting, to the Parent as promptly as reasonably practicable financial statements and operational information (including consolidated financial statements for interim periods up until the Closing Date) that can be prepared without undue burden with respect to the Company and its Subsidiary as is provide all cooperation reasonably requested by Parent (the “Required Information”), (iii) assisting in the preparation of schedules to collateral agreements by providing information of the Company Entities required to be made available on such schedules for purposes of the arrangement or consummation of the Financing, (iv) subject to any contractual agreement in effect, facilitating the pledging of collateral for the Financing, which shall not be required to be delivered or effective until at or promptly following the Effective Time, (v) subject to any contractual agreement in effect, obtaining the Payoff Letter, and the related lien releases, and instruments of termination or discharge, as applicable, required pursuant to Section 6.12, in each case which shall provide that, if sufficient funds are received by the financing sources under the Credit Agreement in order to pay off in full all obligations (other than the Excluded Obligations) in connection therewith or secured thereby, such release, termination and/or discharge shall be effective, and (vi) furnishing Parent as promptly as reasonably practical (and at least three (3) business days prior to the Closing Date) with all documentation and other information related to the Company and its Subsidiary required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, that has been reasonably requested in writing by Parent or its Financing Sources at least ten (10) business days prior to the Closing Date. The Company hereby consents to the use of its and its Subsidiary’s logos in connection with the Financing so long as such logos are used solely (i) in a manner that is not intended to or that is not reasonably likely to harm or disparage the Company or its Subsidiary or the reputation or goodwill of the Company or its Subsidiary and (ii) solely in connection with a description of the Company, its business and products or the Merger.
(b) Notwithstanding the requirements of Section 6.16(a) or anything in this Agreement to the contrary, (i) neither the Company nor any of its Affiliates or their respective Representatives shall be required to enter into, approve or perform (or commit to enter into, approve or perform) any certificate, document, agreement, or instrument, in each case which will be effective prior to the Effective Time, (ii) nothing herein shall require cooperation contemplated thereby to the extent it would interfere unreasonably with the business or operations of the Company or any of its Affiliates or their respective Affiliates, (iii) none of the Company nor any of its Affiliates or their respective Representatives, will be required to (1) pay or commit to pay any commitment or other fee, (2) reimburse or incur any costs or expenses or incur any other liability (including any guarantee, indemnity or pledge) Purchaser in connection with the Financing or any alternate debt or equity financing in connection with the Marketing Documents prior transactions contemplated hereby (the “Financing Arrangements”), including (i) providing information relating to the Effective Time, (3) provide any financial data other than the Required Information, or (4) provide any legal opinion or reliance letters or any certificate (in the case of the Company or its Subsidiary that would be required to be delivered prior Pharmaceuticals Business to the Effective Time), comfort letter or opinion of any of its Representatives, (iv) nothing herein will involve any binding commitment by the Company, any of its Affiliates or any of their respective Representatives which commitment is not conditioned on the Effective Time and does not terminate without liability to the Company, its Affiliates and their respective Representatives upon the termination of this Agreement, and (v) nothing herein will require the Company, any of its Affiliates or any of their respective Representatives to provide any information or take any action, the disclosure or taking of which would violate applicable Legal Requirements, any fiduciary duty, any Contract or obligation of confidentiality owing to a third party, or jeopardize the protection of the attorney-client privilege (or similar protections) held by the Company or any of its Affiliates; provided that, if the Company does not provide or cause its Representatives to provide such access or such information in reliance on the foregoing, then the Company shall (1) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1) any Representative of the Company or its Subsidiary to deliver any certificate or opinion or take any other action under this Section 6.16 that could reasonably be expected to result in personal liability to such Representative; (2) the Board of Directors (or any committee or subcommittee thereof) or the board of directors, managers, managing member or any similar controlling body of any Subsidiary of the Company to approve (or otherwise take any corporate or similar action with respect to) any financing (including the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) the Company and its Subsidiary to take any action that would conflict with or violate its organizational or governance documents or any applicable Legal Requirements, or result in the contravention of, or that could reasonably be expected to result in a violation of breach of, or default under, any agreement to which the Company or its Subsidiary is a party.
(c) Subject to any applicable Legal Requirements, all non-public or other confidential information provided by the Company, its Subsidiary or any of their respective Representatives pursuant to this Agreement will be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Purchaser will be permitted to disclose such information to any Financing Sources or prospective equity or debt financing sources lenders and other financial institutions and investors that are or may become parties to the Financing Arrangements and to any underwriters, initial purchasers or placement agents in connection with the Financing Arrangements (and, in each case, to their respective counsel and auditorsthe “Financing Parties”) so long as such Persons (i) agree including information to be bound used in the preparation of an information package regarding the business, operations, financial projections and prospects of Purchaser and the Pharmaceuticals Business customary for such financing or reasonably necessary for the completion of the Financing by the Confidentiality Agreement Financing Parties) to the extent reasonably requested by Purchaser to assist in preparation of customary offering or information documents to be used for the completion of the Financing as a “Representative” thereunder as if parties thereto; or contemplated by the Commitment Letter and in advance of the Marketing Period, (ii) are subject prior to other confidentiality undertakings reasonably satisfactory to and during the Company Marketing Period, participating in a reasonable number of meetings (including customary one-on-one meetings with the parties acting as lead arrangers for the Financing and senior management and Representatives, with appropriate seniority and expertise, of which the Company is a beneficiary.
Pharmaceuticals Business), presentations, road shows, drafting sessions, due diligence sessions (dincluding accounting due diligence sessions) If and sessions with the Closing does not occurrating agencies, promptly upon request (iii) in advance of the Marketing Period, assisting in the preparation of (A) any customary offering documents, bank information memoranda, prospectuses and similar documents (including historical and pro forma financial statements and information customarily included in such documents or required by Form S-1 under the Companyrules and regulations under the Securities Act of 1933, Parent will reimburse as amended (the Company “Securities Act”), for any documented of the Financing, and reasonable out-of-pocket costs and expenses (including attorneys’ feesB) incurred by the Company or its Subsidiary in connection materials for rating agency presentations, (iv) cooperating with the cooperation marketing efforts for any of the Company Financing, (v) executing and delivering (or using reasonable best efforts to obtain from its Subsidiary contemplated by this Section 6.16 (it being understood and agreed that the reimbursement set forth in this Section 6.16(d) shall not apply to any fees, costsadvisors), and expenses incurred by, causing its Affiliates to execute and deliver (or on behalf of, the Company, its Subsidiary or any of its Representatives in connection with its ordinary course financial reporting requirements or in the provision of data that, in each case, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding this Section 6.16).
(e) The Parent shall indemnify, defend and hold harmless the Company Entities and their respective Representatives from and against any and all losses, damages, claims, interest, awards, judgments, penalties, costs and expenses suffered or incurred by any of them in connection with the Financing (including any action taken in accordance with this Section 6.16) and costs and expenses incurred in defending against the foregoing, except to the extent such losses, damages, claims, costs or expenses arise from the willful breach of this Agreement by the Company, as finally determined by a court of competent jurisdiction, or from fraud on the part of the Company.use reasonable best efforts to
Appears in 1 contract
Financing Cooperation. (a) Subject Prior to Section 6.16(b)the Closing Date, prior to Closing or termination of this Agreement, the Company shall, and FH shall cause FX and its Subsidiaries and their respective Representatives to provide such reasonable cooperation in connection with any financing by XC or any of its Subsidiaries in connection with the Transactions as may be reasonably requested by XC or its Representatives. Without limiting the generality of the foregoing, FH shall cause FX and its Subsidiaries and their respective Representatives to, upon request, (i) prepare and furnish all financial and other pertinent information regarding FX and its Subsidiaries reasonably requested by XC (including such financial statements, schedules or other financial data relating to FX and its Subsidiaries reasonably requested by XC as may be reasonably necessary to consummate any such financing, including any pro forma financial statements or other information determined by XC to be legally required or customary in connection with any such financing); (ii) use its reasonable best efforts to obtain the consent of its auditor to the use of such auditor’s reports with respect to the financial statements of FX and its Subsidiaries in accordance with normal custom and practice and use reasonable best efforts to reasonably cooperate with and reasonably assist Parentcause such auditor to provide customary comfort letters to the underwriters, at the Parent’s requestinitial purchasers or placement agents, sole cost and expenseas applicable, in connection with arrangingany such financing; (iii) provide direct contact between (x) senior management and advisors, obtaining including auditors, of FX and syndicating any Financing and causing (y) the conditions in the Financing Documents and any commitment letters entered into proposed lenders, underwriters, initial purchasers or placement agents, as applicable, and/or XC’s auditors in connection with such Financing to be satisfied, including using reasonable best efforts in (i) assisting with, the financing, at reasonable times and furnishing information for upon reasonable advance notice; (iv) make available the purposes of, the employees and advisors of FX and its Subsidiaries to provide reasonable assistance with XC’s preparation of business projections, financing documents and offer materials; (v) obtain the cooperation and assistance of counsel to FX and its Subsidiaries in providing customary prospectuses legal opinions and other services; (vi) provide information, documents, authorization letters, opinions and certificates, enter into agreements (including any pro forma financial information supplemental indentures) and any information required under Article 18(2) of Commission Delegated Regulation (EU) 2019/980), offering documents, syndication documents and materials, including bank information memoranda and private placement memoranda, lender and investor presentations, rating agency materials and presentations and take other actions that are or may be customary marketing materials in connection with the Financing (all financing or necessary or desirable to permit XC to fulfill conditions or obligations under the financing documents, provided that such documents agreements entered into shall be conditioned upon, and materials, collectivelyshall not take effect until, the “Marketing Documents”RA Closing; (vii) (it being understood and agreed that the Marketing Documents shall include (or otherwise be subject to) any customary exculpation language, as the case may be, with respect to the Company, its Affiliates and their respective Representatives), (ii) furnishing to the Parent as promptly as reasonably practicable financial statements and operational information (including consolidated financial statements for interim periods up until the Closing Date) that can be prepared without undue burden with respect to the Company and its Subsidiary as is reasonably requested by Parent (the “Required Information”), (iii) assisting assist in the preparation of schedules one or more confidential information memoranda, prospectuses, offering memoranda and other marketing and syndication materials reasonably requested by XC; (viii) use commercially reasonable efforts to collateral agreements by providing information ensure that the syndication efforts benefit materially from the existing banking relationships of the Company Entities required to be made available on such schedules FH, FX and their respective Subsidiaries; (ix) permit XC’s reasonable 50 use of FX’s and its Subsidiaries’ logos for purposes of the arrangement or consummation of the Financing, (iv) subject to any contractual agreement in effect, facilitating the pledging of collateral for the Financing, which shall not be required to be delivered or effective until at or promptly following the Effective Time, (v) subject to any contractual agreement in effect, obtaining the Payoff Letter, syndication and the related lien releases, and instruments of termination or dischargeunderwriting, as applicable, required pursuant of financing (subject to Section 6.12advance review of and consultation with respect to such use); (x) participate in meetings and presentations with prospective lenders and investors, as applicable (including the participation in each case which shall provide thatsuch meetings of FX’s senior management); (xi) use commercially reasonable efforts to assist in procuring any necessary rating agency ratings or approvals; (xii) not commence or effect any offering, if sufficient funds are received by placement or arrangement of any debt securities or bank financing competing with the proposed financing sources under (excluding, for the Credit Agreement in order avoidance of doubt, the RA Loan (and not permit any such offering, placement or arrangements to pay off in full all obligations (other than the Excluded Obligations) in connection therewith or secured thereby, such release, termination and/or discharge shall be effective, occur on its behalf); and (vixiii) furnishing Parent as promptly as reasonably practical (furnish XC and at least three (3) business days prior to the Closing Date) any lenders involved with such financing with all documentation and other information related required with respect to the Company and its Subsidiary required by regulatory authorities such financing under applicable “know your customer” and anti-money laundering rules and regulations. In addition, including the PATRIOT ActFH shall, that has been reasonably requested in writing by Parent or and shall cause its Financing Sources at least ten (10) business days prior to the Closing Date. The Company hereby consents to the use of its Subsidiaries and its Subsidiary’s logos in connection with the Financing so long as such logos are used solely their respective Representatives to, upon request, (i) in a manner use commercially reasonable efforts to ensure that is not intended the syndication efforts with respect to or that is not reasonably likely to harm or disparage such financing benefit materially from the Company or existing banking relationships of FH and its Subsidiary or the reputation or goodwill of the Company or its Subsidiary Subsidiaries and (ii) solely in connection not commence or effect any offering, placement or arrangement of any debt securities or bank financing competing with a description the proposed financing (excluding, for the avoidance of doubt, the CompanyRA Loan (and not permit any such offering, placement or arrangements to occur on its business and products or the Mergerbehalf).
(b) To the extent reasonably necessary for XC to receive the proceeds of the full amount of the Dividend Loan, (i) FH shall cause FX to use all reasonable best efforts to (A) obtain customary payoff letters from third-party lenders and trustees with respect to the indebtedness of FX and its Subsidiaries specified by XC to FH no later than ten (10) Business Days prior to the RA Closing and (B) deliver or cause to be delivered such payoff letters to XC at the RA Closing, and (ii) at the RA Closing, subject to XC making available necessary funds to do so, FH shall cause FX to use all reasonable best efforts to, and to cause its Subsidiaries to, permanently (x) terminate the credit facilities requested by XC to be so terminated, if and to the extent such facilities are specified by XC to FH no later than ten (10) Business Days prior to the RA Closing, and all related contracts to which FX or any of its Subsidiaries is a party and (y) cause to be released any Liens on its assets relating to such terminated credit facilities.
(c) Notwithstanding the requirements of Section 6.16(a) or anything in this Agreement Section 5.13 to the contrary, in fulfilling its obligations pursuant to this Section 5.13, (i) neither the Company nor any none of FH, its Affiliates Subsidiaries or their respective its Representatives shall be required to enter into, approve or perform (or commit to enter into, approve or perform) any certificate, document, agreement, or instrument, in each case which will be effective prior to the Effective Time, (ii) nothing herein shall require cooperation contemplated thereby to the extent it would interfere unreasonably with the business or operations of the Company or any of its Affiliates or their respective Affiliates, (iii) none of the Company nor any of its Affiliates or their respective Representatives, will be required to (1) pay or commit to pay any commitment or other fee, (2) reimburse or incur provide any costs or expenses security or incur any other liability (including any guarantee, indemnity or pledge) in connection with the Financing or the Marketing Documents any financing of XC prior to the Effective TimeRA Closing, (3ii) provide any financial data other than requested cooperation shall not unreasonably interfere with the Required Information, or (4) provide any legal opinion or reliance letters or any certificate (in the case ongoing operations of the Company or FX and its Subsidiary that would be required to be delivered prior to the Effective Time), comfort letter or opinion of any of its Representatives, (iv) nothing herein will involve any binding commitment by the Company, any of its Affiliates or any of their respective Representatives which commitment is not conditioned on the Effective Time and does not terminate without liability to the Company, its Affiliates and their respective Representatives upon the termination of this AgreementSubsidiaries, and (viii) nothing herein will require the Company, any of its Affiliates or any of their respective Representatives to provide any information or take any action, the disclosure or taking of which would violate applicable Legal Requirements, any fiduciary duty, any Contract or obligation of confidentiality owing to a third party, or jeopardize the protection of the attorney-client privilege (or similar protections) held by the Company or any of its Affiliates; provided that, if the Company does not provide or cause its Representatives to provide such access or such information in reliance on the foregoing, then the Company shall (1) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1) any Representative of the Company or its Subsidiary to deliver any certificate or opinion or take any other action under this Section 6.16 that could reasonably be expected to result in personal liability to such Representative; (2) the Board of Directors (or any committee or subcommittee thereof) or the board of directors, managers, managing member or any similar controlling body of any Subsidiary of the Company to approve (or otherwise take any corporate or similar action with respect to) any financing (including the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) the Company and its Subsidiary to take any action that would conflict with or violate its organizational or governance documents or any applicable Legal Requirements, or result in the contravention of, or that could reasonably be expected to result in a violation of breach of, or default under, any agreement to which the Company or its Subsidiary is a party.
(c) Subject to any applicable Legal Requirements, all non-public or other confidential information provided by the Company, its Subsidiary or any of their respective Representatives pursuant to this Agreement will be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Purchaser will be permitted to disclose such information to any Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties to the Financing and to any underwriters, initial purchasers or placement agents in connection with the Financing (and, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; or (ii) are subject to other confidentiality undertakings reasonably satisfactory to the Company and of which the Company is a beneficiary.
(d) If the Closing does not occurXC shall, promptly upon request by the CompanyFH, Parent will reimburse the Company FX for any all reasonable and documented and reasonable out-of-pocket costs and expenses (including attorneys’ fees) incurred by the Company FX or its Subsidiary any of FX’s Subsidiaries in connection with the cooperation of the Company and its Subsidiary contemplated by this Section 6.16 (it being understood and agreed that the reimbursement set forth in this Section 6.16(d) such cooperation. XC shall not apply to any fees, costs, and expenses incurred by, or on behalf of, the Company, its Subsidiary or any of its Representatives in connection with its ordinary course financial reporting requirements or in the provision of data that, in each case, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding this Section 6.16).
(e) The Parent shall indemnify, defend indemnify and hold harmless the Company Entities FX and their respective Representatives its Subsidiaries from and against any and all losses, damages, claims, interest, awards, judgments, penalties, costs and expenses losses or damages actually suffered or incurred by any of them directly in connection with the Financing arrangement of any such financing (including any action taken in accordance with this Section 6.16) and costs and expenses incurred in defending against the foregoing, except other than to the extent such lossesrelated to information provided by FH, damagesFX, claims, costs their respective Subsidiaries or expenses arise from the willful breach of this Agreement by the Company, as finally determined by a court of competent jurisdiction, or from fraud on the part of the Companytheir respective Representatives).
Appears in 1 contract
Samples: Share Subscription Agreement
Financing Cooperation. (a) Subject to Section 6.16(b6.10(a), prior to Closing or termination of this Agreement, the Company shallshall and shall cause its Subsidiaries, and shall use its reasonable best efforts to cause their respective Representatives to, at Parent’s sole expense, reasonably cooperate in connection with the arrangement of the Financing or alternative financing as may be reasonably requested by Parent (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries or utilize an undue amount of the Company’s or Subsidiaries’ personnel time). Subject to the immediately preceding sentence, such cooperation by the Company and its Subsidiaries and their respective Representatives to, use reasonable best efforts to reasonably cooperate with and reasonably assist Parentshall include, at the reasonable request of Parent’s request, sole cost (a) participating in a reasonable number of meetings and expense, in connection presentations with arranging, obtaining and syndicating any Financing and causing the conditions in the Financing Documents and any commitment letters entered into in connection with such Financing to be satisfied, prospective lenders (including using reasonable best efforts to make available the Company’s senior management for participation in such meetings), (ib) assisting with, and furnishing using reasonable best efforts to provide information for the purposes of, the preparation of customary prospectuses (including any information necessary to facilitate preparation of projections and the pro forma financial information and any information statements required under pursuant to the Securities Act (including Article 18(2XI of Regulation S-X) of Commission Delegated Regulation (EU) 2019/980in connection with the Merger), offering documents, syndication documents authorization letters, opinions and materialscertificates, including bank information memoranda enter into agreements and private placement memoranda, lender and investor presentations, rating agency materials and presentations and take other actions that are customary marketing materials in connection with the Financing or alternative financing or necessary or desirable to permit Parent to fulfill conditions or obligations under the definitive documentation for the Financing or the alternative financing, (all such documents and materials, collectively, c) furnishing the “Marketing Documents”) (it being understood and agreed that the Marketing Documents shall include (or otherwise be subject to) any customary exculpation language, as the case may be, with respect to report of the Company, its Affiliates and their respective Representatives), (ii) furnishing to ’s auditor on the Parent as promptly as reasonably practicable financial statements and operational information (including most recently available audited consolidated financial statements for interim periods up until the Closing Date) that can be prepared without undue burden with respect to of the Company and its Subsidiary as is Subsidiaries and using its reasonable best efforts to obtain the consent of such auditor to the use of such report in accordance with normal custom and practice, (d) using reasonable best efforts to assist in the preparation of one or more confidential information memoranda and other marketing and syndication materials reasonably requested by Parent (the “Required Information”), (iii) assisting in the preparation of schedules to collateral agreements by providing information of the Company Entities required to be made available on such schedules for purposes of the arrangement or consummation of the Financing, (iv) subject to any contractual agreement in effect, facilitating the pledging of collateral for the Financing, which shall not be required to be delivered or effective until at or promptly following the Effective Time, (v) subject to any contractual agreement in effect, obtaining the Payoff Letter, and the related lien releases, and instruments of termination or discharge, as applicable, required pursuant to Section 6.12, in each case which shall provide that, if sufficient funds are received by the financing sources under the Credit Agreement in order to pay off in full all obligations (other than the Excluded Obligations) in connection therewith or secured thereby, such release, termination and/or discharge shall be effective, and (vie) furnishing Parent as promptly as reasonably practical (and at least three (3) business days prior using commercially reasonable efforts to the Closing Date) with all documentation and other information related to the Company and its Subsidiary required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, that has been reasonably requested assist in writing by Parent procuring any necessary rating agency ratings or its Financing Sources at least ten (10) business days prior to the Closing Dateapprovals. The Company hereby consents to the reasonable use of its and its Subsidiary’s logos in connection with the Financing or any alternative Financing, provided that such use is disclosed to the Company in writing prior to the time that it is so long as used, such logos are used solely (i) in a manner that is not intended to or that is could not reasonably likely be expected to harm or disparage the Company Company, its Subsidiaries or its Subsidiary or the reputation or goodwill of their marks and on such other customary terms and conditions as the Company or its applicable Subsidiary shall reasonably impose. Parent shall, promptly upon termination of this Agreement, reimburse the Company for all reasonable out-of-pocket expenses and (ii) solely costs incurred in connection with a description of the Company, ’s or its business and products or the Merger.
(b) Affiliates’ obligations under this Section 6.11. Notwithstanding the requirements of Section 6.16(a) or anything in this Agreement to the contrary, (i) neither the Company nor any of its Affiliates or their respective Representatives Subsidiaries shall be required to enter into, approve or perform (or commit to enter into, approve or perform) any certificate, document, agreement, or instrument, in each case which will be effective prior to the Effective Time, (ii) nothing herein shall require cooperation contemplated thereby to the extent it would interfere unreasonably with the business or operations of the Company or any of its Affiliates or their respective Affiliates, (iii) none of the Company nor any of its Affiliates or their respective Representatives, will be required to (1) pay or commit to pay any commitment or other fee, (2) reimburse similar fee or incur enter into any costs or expenses definitive agreement or incur any other liability (including any guarantee, indemnity or pledge) obligation in connection with the Financing (or the Marketing Documents any alternative financing) prior to the Effective Time, (3) provide any financial data other than the Required Information, or (4) provide any legal opinion or reliance letters or any certificate (in the case of the Company or its Subsidiary that would be required to be delivered prior to the Effective Time), comfort letter or opinion of any of its Representatives, (iv) nothing herein will involve any binding commitment by the Company, any of its Affiliates or any of their respective Representatives which commitment is not conditioned on the Effective Time and does not terminate without liability to the Company, its Affiliates and their respective Representatives upon the termination of this Agreement, and (v) nothing herein will require the Company, any of its Affiliates or any of their respective Representatives to provide any . All material non-public information or take any action, the disclosure or taking of which would violate applicable Legal Requirements, any fiduciary duty, any Contract or obligation of confidentiality owing to a third party, or jeopardize the protection of the attorney-client privilege (or similar protections) held provided by the Company or any of its Affiliates; provided that, if the Company does not provide or cause its Representatives to provide such access or such information in reliance on the foregoing, then the Company shall (1) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1) any Representative of the Company or its Subsidiary to deliver any certificate or opinion or take any other action under this Section 6.16 that could reasonably be expected to result in personal liability to such Representative; (2) the Board of Directors (or any committee or subcommittee thereof) or the board of directors, managers, managing member or any similar controlling body of any Subsidiary of the Company to approve (or otherwise take any corporate or similar action with respect to) any financing (including the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) the Company and its Subsidiary to take any action that would conflict with or violate its organizational or governance documents or any applicable Legal Requirements, or result in the contravention of, or that could reasonably be expected to result in a violation of breach of, or default under, any agreement to which the Company or its Subsidiary is a party.
(c) Subject to any applicable Legal Requirements, all non-public or other confidential information provided by the Company, its Subsidiary Subsidiaries or any of their respective Representatives pursuant to this Agreement will Section 6.11 shall be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Purchaser will Merger Sub shall be permitted to disclose such information to any Financing Sources or prospective equity or debt financing sources the lenders in respect of the Commitment Letter and other financial institutions potential sources of capital, rating agencies and prospective lenders and investors that are during syndication of the Financing or may become parties any alternative Financing subject to the Financing lenders, potential sources of capital, ratings agencies and to any underwriters, initial purchasers or placement agents in connection with the Financing (and, in each case, to their respective counsel prospective lenders and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; or (ii) are subject to other investors entering into customary confidentiality undertakings reasonably satisfactory with respect to the Company and of which the Company is a beneficiary.
(d) If the Closing does not occur, promptly upon request by the Company, Parent will reimburse the Company for any documented and reasonable out-of-pocket costs and expenses such information (including attorneys’ fees) incurred by the Company or its Subsidiary through a notice and undertaking in connection with the cooperation of the Company and its Subsidiary contemplated by this Section 6.16 (it being understood and agreed that the reimbursement set forth a form customarily used in this Section 6.16(d) shall not apply to any fees, costs, and expenses incurred by, or on behalf of, the Company, its Subsidiary or any of its Representatives in connection with its ordinary course financial reporting requirements or in the provision of data that, in each case, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding this Section 6.16confidential information memoranda for senior credit facilities).
(e) The Parent shall indemnify, defend and hold harmless the Company Entities and their respective Representatives from and against any and all losses, damages, claims, interest, awards, judgments, penalties, costs and expenses suffered or incurred by any of them in connection with the Financing (including any action taken in accordance with this Section 6.16) and costs and expenses incurred in defending against the foregoing, except to the extent such losses, damages, claims, costs or expenses arise from the willful breach of this Agreement by the Company, as finally determined by a court of competent jurisdiction, or from fraud on the part of the Company.
Appears in 1 contract
Financing Cooperation. (a) Subject The Company agrees to Section 6.16(b), prior to Closing or termination of this Agreement, the Company shall, and shall cause its Subsidiaries and their respective Representatives to, use provide all reasonable best efforts to reasonably cooperate with and reasonably assist Parent, at the Parent’s request, sole cost and expense, cooperation in connection with arrangingany debt, obtaining equity or other offering or source of financing by Parent and syndicating any Financing and causing the conditions in the Financing Documents and any commitment letters entered into in connection with such Financing to be satisfied, including using reasonable best efforts in (i) assisting with, and furnishing information for the purposes of, the preparation of customary prospectuses (including any pro forma financial information and any information required under Article 18(2) of Commission Delegated Regulation (EU) 2019/980), offering documents, syndication documents and materials, including bank information memoranda and private placement memoranda, lender and investor presentations, rating agency materials and presentations and other customary marketing materials in connection with the Financing (all such documents and materials, collectively, the “Marketing Documents”) (it being understood and agreed that the Marketing Documents shall include (or otherwise be subject to) any customary exculpation language, as the case may be, with respect its Subsidiaries prior to the Company, its Affiliates and their respective Representatives), (ii) furnishing to the Parent Closing as promptly as reasonably practicable financial statements and operational information (including consolidated financial statements for interim periods up until the Closing Date) that can may be prepared without undue burden with respect to the Company and its Subsidiary as is reasonably requested by Parent (provided that such requested cooperation does not unreasonably interfere with the “Required Information”ongoing operations of the business of the Group Companies and the Group Companies do not incur any out-of-pocket costs), including (iiia) participation in meetings with potential lenders and underwriters, upon reasonable prior notice by Parent, (b) furnishing Parent with pertinent information reasonably available to the Group Companies regarding the Group Companies and their business and properties, subject to the terms and conditions of the applicable confidentiality agreements, (c) assisting Parent, to the extent reasonably necessary, in obtaining customary accountants’ comfort letters and consents from the Company’s accountants, and (d) assisting with the preparation of schedules customary materials in connection with any such other debt, equity or other offering or source of financing by the Parent to collateral agreements by providing information the extent such documents described in this clause (d) contain disclosure reflecting or referring to any of the Group Companies. Notwithstanding the foregoing, (i) the effectiveness of any documentation executed by any Group Company Entities with respect to any assistance required pursuant to this Section 6.13(a) shall be made available on such schedules for purposes of subject in all events to the arrangement or consummation of the FinancingClosing, (iv) subject to any contractual agreement in effect, facilitating the pledging of collateral for the Financing, which shall not be required to be delivered or effective until at or promptly following the Effective Time, (v) subject to any contractual agreement in effect, obtaining the Payoff Letter, and the related lien releases, and instruments of termination or discharge, as applicable, required pursuant to Section 6.12, in each case which shall provide that, if sufficient funds are received by the financing sources under the Credit Agreement in order to pay off in full all obligations (other than the Excluded Obligations) in connection therewith or secured therebyfailing which, such release, termination and/or discharge documentation shall be effective, void and (vi) furnishing Parent as promptly as reasonably practical (and at least three (3) business days prior to the Closing Date) with all documentation and other information related to the Company and its Subsidiary required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, that has been reasonably requested in writing by Parent of no force or its Financing Sources at least ten (10) business days prior to the Closing Date. The Company hereby consents to the use of its and its Subsidiary’s logos in connection with the Financing so long as such logos are used solely (i) in a manner that is not intended to or that is not reasonably likely to harm or disparage the Company or its Subsidiary or the reputation or goodwill of the Company or its Subsidiary effect; and (ii) solely no Group Company shall be required to take any action pursuant to this Section 6.13(a) that would reasonably be expected to conflict with, or result in connection any violation or breach of, or default (with a description or without notice or lapse of the Companytime, or both) under, its business and products Organizational Documents or the Mergerany applicable Laws.
(b) Notwithstanding the requirements For purposes of Section 6.16(a) or anything in this Agreement Agreement, references to the contrary, “Debt Financing Commitments” shall refer to (i) neither the Company nor any commitment letter dated as of its Affiliates or their respective Representatives shall be required the date hereof relating to enter intoa $1.35 Billion Senior Unsecured Acquisition Bridge Facility by and among Xxxxx Fargo Bank, approve or perform (or commit to enter intoNational Association, approve or perform) any certificateXxxxx Fargo Securities, documentLLC, agreementCitigroup Global Markets Inc., or instrumentSunTrust Bank, in each case which will be effective prior to the Effective Timeand SunTrust Xxxxxxxx Xxxxxxxx, Inc., as lenders, and Sovran Self Storage, Inc. and Parent, and (ii) nothing herein shall require cooperation contemplated thereby to the extent it would interfere unreasonably with the business or operations commitment letter dated as of the Company or any date hereof relating to a $325 Million Senior Unsecured Backstop Bridge Facility by and among Xxxxx Fargo Bank, National Association and Xxxxx Fargo Securities, LLC, as lenders, and Sovran Self Storage, Inc. and Parent, executed copies of its Affiliates or their respective Affiliates, (iii) none of the Company nor any of its Affiliates or their respective Representatives, will be required to (1) pay or commit to pay any commitment or other fee, (2) reimburse or incur any costs or expenses or incur any other liability (including any guarantee, indemnity or pledge) in connection with the Financing or the Marketing Documents prior to the Effective Time, (3) provide any financial data other than the Required Information, or (4) provide any legal opinion or reliance letters or any certificate (in the case of the Company or its Subsidiary that would be required to be delivered prior to the Effective Time), comfort letter or opinion of any of its Representatives, (iv) nothing herein will involve any binding commitment by the Company, any of its Affiliates or any of their respective Representatives which commitment is not conditioned on the Effective Time and does not terminate without liability have heretofore been furnished to the Company, and the “Debt Financing” shall refer to the financing contemplated by the Debt Financing Commitments. In no event shall Parent amend, modify or supplement, or waive any material right or condition under, the Debt Financing Commitments in any manner that would, or would reasonably be expected to, materially and adversely affect or delay Parent’s ability to consummate the Merger without the prior written consent of the Company. Parent shall keep the Company informed on a reasonable basis and in reasonable detail of the status of its Affiliates and their respective Representatives efforts to arrange the Debt Financing. Parent shall give the Company prompt notice upon becoming aware of, or receiving written notice with respect to, any unavailability of the Debt Financing or termination of this Agreement, and (v) nothing herein will require the Company, any of its Affiliates or any of their respective Representatives to provide any information or take any action, the disclosure or taking of which would violate applicable Legal Requirements, any fiduciary duty, any Contract or obligation of confidentiality owing to a third party, or jeopardize the protection provision of the attorney-client privilege (or similar protections) held by the Company or any of its Affiliates; provided that, if the Company does not provide or cause its Representatives to provide such access or such information in reliance on the foregoing, then the Company shall (1) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information in a way Debt Financing Commitments that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1) any Representative of the Company or its Subsidiary to deliver any certificate or opinion or take any other action under this Section 6.16 that could reasonably be expected to result in personal liability an amount being available less than what is required to such Representative; (2) the Board of Directors (pay any and all amounts required to be paid by Parent or Merger Sub hereunder. If any committee or subcommittee thereof) or the board of directors, managers, managing member or any similar controlling body of any Subsidiary portion of the Company to approve (or otherwise take any corporate or similar action with respect to) any financing (including Debt Financing becomes unavailable on the Financing) or Contracts terms and conditions (including any applicable market flex provisions) contemplated by the Debt Financing Document or commitment letter) related thereto; or (3) Commitments, Parent shall promptly notify the Company thereof and shall use its Subsidiary reasonable best efforts to take arrange and obtain alternative financing from the same or alternative sources in an amount sufficient to pay any action that would conflict with or violate its organizational or governance documents or any applicable Legal Requirements, or result in the contravention of, or that could reasonably be expected to result in a violation of breach of, or default under, any agreement to which the Company or its Subsidiary is a party.
(c) Subject to any applicable Legal Requirements, and all non-public or other confidential information provided by the Company, its Subsidiary or any of their respective Representatives pursuant to this Agreement will be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Purchaser will be permitted to disclose such information to any Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties to the Financing and to any underwriters, initial purchasers or placement agents in connection with the Financing (and, in each case, to their respective counsel and auditors) so long as such Persons (i) agree amounts required to be bound paid by Parent or Merger Sub hereunder as promptly as practicable following the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; or (ii) are subject to other confidentiality undertakings reasonably satisfactory to occurrence of such event. To the Company and of which extent Parent finances the Company is a beneficiary.
(d) If the Closing does not occur, promptly upon request by the Company, Parent will reimburse the Company for any documented and reasonable out-of-pocket costs and expenses (including attorneys’ fees) incurred by the Company or its Subsidiary in connection with the cooperation of the Company and its Subsidiary transactions contemplated by this Section 6.16 (it being understood and agreed that the reimbursement set forth in this Section 6.16(d) Agreement by raising money through an equity offering or through any alternative financing source, Parent shall not apply be obligated to any fees, costs, and expenses incurred by, continue to pursue the Debt Financing or on behalf of, the Company, its Subsidiary or any may pursue it in a lesser amount of its Representatives in connection with its ordinary course financial reporting requirements or in the provision of data that, in each case, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding this Section 6.16)Debt Financing.
(e) The Parent shall indemnify, defend and hold harmless the Company Entities and their respective Representatives from and against any and all losses, damages, claims, interest, awards, judgments, penalties, costs and expenses suffered or incurred by any of them in connection with the Financing (including any action taken in accordance with this Section 6.16) and costs and expenses incurred in defending against the foregoing, except to the extent such losses, damages, claims, costs or expenses arise from the willful breach of this Agreement by the Company, as finally determined by a court of competent jurisdiction, or from fraud on the part of the Company.
Appears in 1 contract
Financing Cooperation. (a) Subject Prior to Section 6.16(b), prior to Closing or termination of this Agreementthe Closing, the Company shallshall use its reasonable best efforts to provide, and shall cause its Subsidiaries affiliates and their respective Representatives to, to use reasonable best efforts to reasonably cooperate with and reasonably assist Parent, at the Parent’s request, sole cost and expenseprovide, in connection with arrangingthe arrangement of any debt financing, obtaining and syndicating any Financing and causing the conditions in the Financing Documents and any commitment letters entered into in connection with such Financing to be satisfied, including using all reasonable best efforts in (i) assisting with, and furnishing information for the purposes of, the preparation of cooperation requested by Parent that is customary prospectuses (including any pro forma financial information and any information required under Article 18(2) of Commission Delegated Regulation (EU) 2019/980), offering documents, syndication documents and materials, including bank information memoranda and private placement memoranda, lender and investor presentations, rating agency materials and presentations and other customary marketing materials in connection with the Financing arrangement of debt financing for transactions that are substantially similar to the transactions contemplated by this Agreement, which reasonable best efforts shall include: (all such documents i) furnishing the Debt Providers the Required Information; (ii) participating in a reasonable number of meetings, drafting sessions, road shows, rating agency presentations and materialsdue diligence sessions and sessions with rating agencies at times and locations mutually agreed and reasonably coordinated in advance thereof; (iii) assisting upon request in the preparation of, collectivelyand providing information to assist the Parent in preparing, pro forma financial statements and financial projections, (iv) furnishing to Parent for distribution to the “Marketing Documents”) (it being understood Debt Providers as promptly as practicable following a request therefor with pertinent information regarding the Company’s assets and agreed that operations as is customary in connection with the Marketing Documents shall include (or otherwise be subject to) any customary exculpation languageFinancing, including providing, as the case may bepromptly as practicable following a request therefor, with respect monthly financial and operating data relating to the Company, its Affiliates ’s assets and their respective Representatives), (ii) furnishing to the Parent as promptly as reasonably practicable financial statements and operational information (including consolidated financial statements for interim periods up until the Closing Date) operations that can be prepared without undue burden with respect to the Company and its Subsidiary as is reasonably requested by Parent Parent; (the “Required Information”), (iiiv) assisting Parent and the Debt Providers upon request in the preparation of schedules to collateral agreements by providing information (A) a customary offering document for any of the Company Entities Financing (including assistance with preparation of a customary offering document for a senior notes offering); (B) materials for rating agency presentations and (C) similar documents required in connection with the Financing; (vi) taking all corporate actions, subject to the consummation of the Closing, reasonably requested by Parent to permit the consummation of the Financing and to permit the proceeds thereof to be made available on such schedules for purposes to Parent; (vii) facilitate and assist the appropriate authorized representatives of the arrangement or consummation Company on and as of the FinancingClosing to execute and deliver any pledge and security documents, (iv) subject to any contractual agreement in effect, definitive financing documents or other certificates or documents as may be reasonably requested by Parent or otherwise facilitating the pledging of collateral for delivery at the consummation of the Financing on and as of the Closing (unless otherwise specified); provided that the effectiveness of any such pledges (or delivery of stock certificates) or documents shall be subject to the occurrence of the Closing; (viii) providing, if requested by Parent, customary authorization letters to the Debt Providers authorizing the distribution of information to prospective lenders; (ix) cooperate reasonably with the Debt Providers’ due diligence, to the extent customary and reasonable; (x) obtaining accountant’s comfort letters reasonably requested by Parent and customary for financings similar to the Financing; (xi) obtaining customary payoff letters, which shall not be required to be delivered or effective until at or promptly following the Effective Time, (v) subject to any contractual agreement in effect, obtaining the Payoff Letter, lien terminations and the related lien releases, releases and instruments of discharge to be provided at Closing providing for the payoff, discharge and termination or discharge, as applicable, required pursuant to Section 6.12, in each case which shall provide that, if sufficient funds are received on the Closing Date of all Indebtedness and release of Liens contemplated by the financing sources under repayment or refinancing of such Indebtedness to be paid off, discharged and terminated on the Credit Agreement in order to pay off in full all obligations (other than the Excluded Obligations) in connection therewith or secured thereby, such release, termination and/or discharge shall be effective, Closing Date; and (vixii) furnishing Parent as promptly as reasonably practical (and at least three five (35) business days Business Days prior to the Closing Date) with Closing, providing all documentation and other information related to about the Company and each of its Subsidiary required Subsidiaries as is reasonably requested in writing by regulatory authorities under Parent which relates to applicable “know your customer” and anti-money laundering rules and regulations, regulations including without limitation the USA PATRIOT Act, that has been reasonably ACT to the extent requested in writing by Parent or its Financing Sources at least ten nine (109) business days Business Days prior to Closing (or at such times as will reasonably allow the Closing DateCompany to comply with such request). The Company hereby consents to the use of its and its Subsidiary’s logos in connection with the Financing so long as such logos are used solely foregoing notwithstanding, (iv) in a manner that is not intended to or that is not reasonably likely to harm or disparage the Company or its Subsidiary or the reputation or goodwill none of the Company or its Subsidiary and (ii) solely in connection with a description any of the Company, its business and products or the Merger.
(b) Notwithstanding the requirements of Section 6.16(a) or anything in this Agreement to the contrary, (i) neither the Company nor any of its Affiliates or their respective Representatives Subsidiaries shall be required to enter into, approve or perform (or commit to enter into, approve or perform) take any certificate, document, agreement, or instrument, in each case which will be effective prior to the Effective Time, (ii) nothing herein shall require cooperation contemplated thereby action to the extent it would (1) interfere unreasonably with the business or operations of the Company or any of the Company Subsidiaries or (2) conflict with the organizational documents of the Company or any of the Company Subsidiaries or any applicable Law, (w) no Person who is a director of the Company or any Company Subsidiary at any time prior to the Closing (a “Pre-Closing Director”) shall be required to take any action to approve the Financing in its Affiliates capacity as a Pre-Closing Director, (x) no written agreement of the Company or the Company Subsidiaries or any of their respective Affiliatesaffiliates, officers, directors, employees, stockholders, agents or Representatives with respect to the Financing shall be effective until the Closing (other than with respect to any authorization letters described in clause (vi) of this Section 5.14), (iiiy) none of the Company nor any of its Affiliates the Company Subsidiaries or any of their respective Representativesaffiliates, will officers, directors, employees, stockholders and Representatives shall be required to (1) pay or commit to pay any commitment or other similar fee, and (2z) reimburse none of the Company or any of the Company Subsidiaries or any of their respective affiliates, stockholders, agents and Representatives shall be required to incur any costs cost or expenses expense except to the extent such cost or incur any other liability expense (including any guarantee, indemnity or pledgei) is reimbursed by Parent in connection with the Financing or the Marketing Documents prior to or at the Effective Time, (3) provide any financial data other than the Required Information, Closing or (4ii) provide any legal opinion or reliance letters or any certificate (solely in the case of the Company or its Subsidiary that would be required to be delivered prior to and the Effective Time)Company Subsidiaries, comfort letter or opinion of any of its Representativesis contingent upon the Closing. Parent shall, (iv) nothing herein will involve any binding commitment promptly upon request by the Company, reimburse the Company, the Company Subsidiaries and their respective affiliates, stockholders and Representatives for all reasonable and documented out-of-pocket costs incurred thereby in connection with such cooperation and shall indemnify and hold harmless the Company, the Company Subsidiaries and their respective affiliates, stockholders and other Representatives for and against any and all losses suffered or incurred by them in connection with the arrangement of its Affiliates the Financing and any information utilized in connection therewith, except for any losses (I) arising out of information furnished in connection with the Financing by or on behalf of the Company, the Company Subsidiaries or any of their respective affiliates, stockholders and other Representatives which commitment is not conditioned or (II) that are the result of willful misconduct, gross negligence, intentional fraud or intentional misrepresentation committed by or on the Effective Time and does not terminate without liability to behalf of the Company, its Affiliates and their respective Representatives upon the termination of this Agreement, and (v) nothing herein will require the Company, any of its Affiliates Company Subsidiaries or any of their respective affiliates, stockholders and other Representatives to provide any information or take any action, the disclosure or taking of which would violate applicable Legal Requirements, any fiduciary duty, any Contract or obligation of confidentiality owing to a third party, or jeopardize the protection of the attorney-client privilege (or similar protections) held by the Company or any of its Affiliates; provided that, if the Company does not provide or cause its Representatives to provide such access or such information in reliance on the foregoing, then the Company shall (1) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing in connection with this Section 6.16 will require (1) any Representative of the Company or its Subsidiary to deliver any certificate or opinion or take any other action under this Section 6.16 that could reasonably be expected to result in personal liability to such Representative; (2) the Board of Directors (or any committee or subcommittee thereof) Agreement or the board of directors, managers, managing member or any similar controlling body of any Subsidiary of the Company to approve (or otherwise take any corporate or similar action with respect to) any financing (including the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) the Company and its Subsidiary to take any action that would conflict with or violate its organizational or governance documents or any applicable Legal Requirements, or result in the contravention of, or that could reasonably be expected to result in a violation of breach of, or default under, any agreement to which the Company or its Subsidiary is a party.
(c) Subject to any applicable Legal Requirements, all transactions contemplated hereby. All non-public or other otherwise confidential information provided by regarding the Company, its Subsidiary or any of the Company Subsidiaries and their respective Representatives affiliates obtained by Parent and its affiliates, officers, directors, employees, stockholders, agents and representatives pursuant to this Agreement will Section 5.14 shall be kept confidential in accordance with the Confidentiality Agreement, except provided, however, that Parent and Purchaser will be permitted to disclose any such information may be disclosed or provided to any Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties Parent’s Debt Providers subject to customary confidentiality undertakings. Notwithstanding anything to the Financing and contrary in this Agreement, the Parties agree that the condition set forth in Section 6.3(b), as it applies to any underwritersthe Company’s obligations under this Section 5.14, initial purchasers or placement agents in connection with shall be deemed satisfied unless the Financing (and, in each case, to their respective counsel and auditors) so long as failure of such Persons (i) agree condition to be bound satisfied was caused by the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; or (ii) are subject to other confidentiality undertakings reasonably satisfactory to the Company willful and of which the Company is a beneficiary.
(d) If the Closing does not occur, promptly upon request by the Company, Parent will reimburse the Company for any documented and reasonable out-of-pocket costs and expenses (including attorneys’ fees) incurred material breach by the Company or of its Subsidiary in connection with the cooperation of the Company and its Subsidiary contemplated by obligations under this Section 6.16 (it being understood and agreed that the reimbursement set forth in this Section 6.16(d) shall not apply to any fees, costs, and expenses incurred by, or on behalf of, the Company, its Subsidiary or any of its Representatives in connection with its ordinary course financial reporting requirements or in the provision of data that, in each case, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding this Section 6.16)5.14.
(e) The Parent shall indemnify, defend and hold harmless the Company Entities and their respective Representatives from and against any and all losses, damages, claims, interest, awards, judgments, penalties, costs and expenses suffered or incurred by any of them in connection with the Financing (including any action taken in accordance with this Section 6.16) and costs and expenses incurred in defending against the foregoing, except to the extent such losses, damages, claims, costs or expenses arise from the willful breach of this Agreement by the Company, as finally determined by a court of competent jurisdiction, or from fraud on the part of the Company.
Appears in 1 contract
Financing Cooperation. (a) Subject Prior to Section 6.16(b), prior to the Closing or termination of this Agreementand as promptly as practicable following the date hereof, the Company shall, and shall cause its Subsidiaries and their its and its Subsidiaries’ respective Representatives to, use commercially reasonable best efforts to reasonably cooperate with and reasonably assist Parent, at the Parent’s request, sole cost and expense, in connection with arrangingfacilitating (i) (A) the replacement (effective as of the Closing Date) of all outstanding letters of credit of the Company or any its Subsidiaries issued under the Company’s existing credit facility with BMO Xxxxxx Bank N.A. (such letters of credit, obtaining the “Existing Letters of Credit”) with letters of credit issued under the Debt Financing and/or (B) the Company providing, as of the Closing Date, cash or other collateral or other credit back stop satisfactory to the bank issuing any such Existing Letter of Credit, and syndicating any Financing (ii) the payoff of other credit facilities of the Company and causing its Subsidiaries as of the conditions Closing Date and, as applicable, release of Liens thereunder and receipt of documentation, including customary payoff letters, confirming same. Such cooperation shall include facilitating the direct contact between Parent and its Representatives and parties under credit facilities of the Company and its Subsidiaries, the beneficiaries of the Existing Letters of Credit with the Parent and its Representatives, as well as direct contact between such beneficiaries and the Parent’s lenders, in all such cases upon reasonable advance notice.
(b) Prior to the Financing Documents Effective Time, the Company shall, and any commitment letters entered into shall cause its Subsidiaries to, use its commercially reasonable efforts, and shall use its commercially reasonable efforts to cause its and its Subsidiaries’ officers, directors, employees, advisors and other representatives to provide to Parent such cooperation as may be reasonably requested by Parent in connection with arranging and obtaining the Debt Financing; provided, however, that such Financing requested cooperation is otherwise consistent with this Agreement and does not unreasonably interfere in any material respect with the operations of the Company, its Subsidiaries and ERAPSCO. Such cooperation by the Company includes, at the reasonable request of Parent (and subject to be satisfied, including using reasonable best efforts the proviso in the immediately foregoing sentence):
(i) commenting on or assisting with, with the preparation (including providing information and furnishing materials to be used in the preparation) of customary confidential information memoranda (including a private supplement) or similar offering documents for the purposes ofDebt Financing, the preparation of customary prospectuses (including any pro forma financial information and any information required under Article 18(2) of Commission Delegated Regulation (EU) 2019/980), offering documents, syndication documents and materials, including bank information memoranda and private placement memoranda, lender and investor presentations, rating agency materials and presentations and other customary marketing materials in connection with the Financing (all lender presentations; provided, however, that any such documents and materials, collectively, rating agency presentations shall contain disclosure and financial statements reflecting the “Marketing Documents”) (it being understood and agreed that the Marketing Documents shall include (or otherwise be subject to) any customary exculpation language, Company as the case may beobligor;
(ii) reasonably assisting in the preparation, execution and delivery of one or more credit agreements, guarantees, pledge and security documents, supplemental indentures, currency or interest hedging arrangements, other definitive financing documents, or other certificates, documents, or closing deliverables with respect to the Company, its Affiliates and their respective Representatives), (ii) furnishing to the Parent Debt Financing as promptly as reasonably practicable financial statements and operational information (including consolidated financial statements for interim periods up until the Closing Date) that can may be prepared without undue burden with respect to the Company and its Subsidiary as is reasonably requested by Parent (the “Required Information”), (iii) assisting in the preparation of schedules to collateral agreements by providing information of the Company Entities required to be made available on such schedules for purposes of the arrangement or consummation of the Financing, (iv) subject to any contractual agreement in effect, otherwise reasonably facilitating the pledging of collateral for (including cooperation in connection with the Financing, which shall not be required pay-off of existing Indebtedness to be delivered or effective until at or promptly following the Effective Time, (v) subject to any contractual agreement in effect, obtaining the Payoff Letter, extent contemplated by this Agreement and the release of related lien releasesLiens and termination of security interests (including delivering payoff letters, and instruments of prepayment or termination or discharge, notices as applicable, required pursuant to Section 6.12, in each case which shall provide that, if sufficient funds are received by the terms of any existing Indebtedness and delivering termination agreements and/or UCC-3 or equivalent financing sources under the Credit Agreement in order to pay off in full all obligations statements or notices));
(other than the Excluded Obligations) in connection therewith or secured thereby, such release, termination and/or discharge shall be effective, and (viiii) furnishing Parent as promptly as reasonably practical and Parent’s Debt Financing Sources and their respective representatives with (A) the Required Information and at least three (3B) business days prior to the Closing Date) with all documentation such pertinent and other customary information related to regarding the Company and its Subsidiary Subsidiaries as may be reasonably requested by Parent in order to consummate the Debt Financing;
(iv) furnishing Parent for distribution to the Financing Sources information required by regulatory authorities under any Financing Sources for compliance with applicable “know your customer” and anti-money laundering rules and regulations, including USA Patriot Act of 2001, at least two (2) Business Days prior to Closing to the PATRIOT Act, that has been extent reasonably requested in writing by Parent or its Financing Sources at least ten five (105) business days Business Days prior to the Closing Date. The Closing;
(v) causing the management teams of the Company hereby consents to the use of its and its Subsidiary’s logos Subsidiaries with appropriate seniority and expertise and requesting external auditors to, upon reasonable notice, participate in and prepare for a reasonable number of meetings with prospective lenders and purchasers of the Debt Financing and senior management and Representatives, with appropriate seniority and expertise, of the Company and its Subsidiaries, presentations, due diligence sessions and sessions with rating agencies, and reasonably cooperating with the marketing efforts of the Parent and its Financing Sources, in each case in connection with the Debt Financing;
(vi) cooperating reasonably with the due diligence requests of the Financing so long Sources, to the extent customary and reasonable;
(vii) cooperating reasonably with Parent in Parent’s efforts to obtain reasonable and customary consents, legal opinions, surveys, title insurance and insurance affidavits as reasonably requested by Parent;
(viii) providing customary authorization letters to the Debt Financing Sources authorizing the distribution of information to prospective lenders (subject to confidentiality provisions) and, with respect to any public-side version of such logos are used solely (i) in a manner information, confirming that such version consists exclusively of information and documentation that does not contain information that is (A) of a type that would not intended be publicly available (or could be derived from publicly available information) and (B) material with respect to or that is not reasonably likely to harm or disparage the Company or its Subsidiary Subsidiaries or any of their respective securities for purposes of United States federal and state and (if applicable to the reputation Company and Debt Financing) foreign securities laws;
(ix) using reasonable best efforts to assist Parent in connection with the preparation of pro forma financial information and financial statements to the extent necessary or goodwill reasonably required by Parent’s financing sources (including the Debt Financing Source); provided, however, that neither the Company nor any of its Subsidiaries or Representatives shall be responsible in any manner for information relating to the proposed debt and equity capitalization that is required for such pro forma financial information; and
(x) using reasonable best efforts to (A) permit the prospective lenders involved in the Debt Financing to evaluate the Company and its Subsidiaries’ current assets, cash management and accounting systems, policies and procedures relating thereto for the purpose of establishing collateral arrangements, (B) cooperate with Parent to establish bank and other accounts and blocked account agreements and lock box arrangements in connection with the foregoing and (C) permit representatives of the one (1) prospective lender to conduct commercial field examinations, inventory appraisals, and make audits and appraisals delivered for the purposes of any credit facility available to Parent for purposes of its Debt Financing. Parent shall (x) promptly, upon written request by the Company, reimburse the Company for any reasonable and documented out-of-pocket expenses and costs (including (1) reasonable outside attorneys’ fees and (2) fees and expenses of the Company’s outside accounting firms engaged to assist in connection with the Financing) incurred by the Company, its Affiliates or any of their respective Representatives in connection with the cooperation and other obligations of the Company or its Subsidiary Affiliates contemplated by this Section 5.19 and (iiy) solely in connection with a description of indemnify and hold harmless the Company, its business Affiliates and products their respective Representatives from and against any and all losses and liabilities suffered or incurred by them in connection with the Merger.
arrangement of the Financing and the performance of their respective obligations under this Section 5.19 (bincluding any action taken in accordance with this Section 5.19) and any information utilized in connection therewith, except in the event such losses or liabilities arose out of or resulted from the gross negligence or willful misconduct of such Person. Notwithstanding the requirements of Section 6.16(a) or anything in this Agreement to the contrary, (i) neither nothing in this Agreement shall require any cooperation to the extent that it would require the Company nor or any of its Affiliates Subsidiaries or their respective Representatives shall be required to enter into(I) to waive or amend any terms of this Agreement, approve (II) agree to pay any commitment or perform (other fees or commit to enter into, approve incur any other liability or perform) any certificate, document, agreement, or instrument, in each case which will be effective obligation prior to the Effective Time, (iiIII) nothing herein shall require cooperation contemplated thereby to the extent it would interfere unreasonably with the business or operations of the Company or provide any of its Affiliates or their respective Affiliates, (iii) none of the Company nor any of its Affiliates or their respective Representatives, will be required to (1) pay or commit to pay any commitment or other fee, (2) reimburse or incur any costs or expenses or incur any other liability (including any guarantee, indemnity or pledge) in connection with the Financing or the Marketing Documents reimburse any expenses prior to the Effective Time, (3IV) provide approve or perform the execution or delivery of any financial data document or certificate in connection with the Financing (or any alternative financing) (other than the Required Information, authorization letters contemplated above) or that requires Persons who are directors (4or equivalent) provide any legal opinion or reliance letters or any certificate (in the case of the Company or its Subsidiary that would be required to be delivered Subsidiaries prior to the Effective Time (in their capacity as such) to pass resolutions or consents to approve or authorize the Debt Financing (or any alternative financing) (except that, with respect to any Person who is continuing as a director or officer (or equivalent) of the Company or its Subsidiaries following the Effective Time), comfort letter such Person may execute or opinion deliver any such documents or certificates or pass such resolutions or consents following the Effective Time) or (V) take any action for which it is not indemnified hereunder.
(c) At the reasonable request of Parent, the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to periodically update any Required Information provided to Parent as may be necessary so that such Required Information (i) is Compliant, and (ii) meets the applicable requirements set forth in the definition of its Representatives, (iv) nothing herein will involve any binding commitment “Required Information.” Parent shall be permitted to disclose such information provided by the Company, Company or any of its Affiliates or any of their respective Representatives which commitment is not conditioned on pursuant to this Section 5.19 to its Debt Financing Sources, rating agencies and prospective lenders during syndication of the Effective Time Debt Financing subject to its Debt Financing Sources, ratings agencies and does not terminate without liability prospective lenders entering into customary confidentiality undertakings with respect to such information.
(d) Upon the reasonable written request of the Company, the Company and its legal counsel will be given reasonable opportunity to review and comment upon any marketing materials for Debt Financing Sources, ratings agencies and prospective lenders, in each case, prepared after the date hereof, that include information about the Company or its Subsidiaries prepared in connection with the Debt Financing. The Company hereby consents to the use of all logos of the Company and its Subsidiaries in connection with the Debt Financing so long as such logos are (i) used solely in connection with an accurate description of the Company, its Affiliates Subsidiaries and ERAPSCO and their respective Representatives upon businesses and products or the termination of transactions contemplated by this Agreement, Agreement and (vii) nothing herein will require used solely in a manner that is not intended to, or that would not reasonably be expected to, harm or disparage the Company, any of its Affiliates Subsidiaries or any of their respective Representatives to provide any information ERAPSCO or take any action, the disclosure reputation or taking of which would violate applicable Legal Requirements, any fiduciary duty, any Contract or obligation of confidentiality owing to a third party, or jeopardize the protection goodwill of the attorney-client privilege (or similar protections) held by the Company or Company, any of its Affiliates; provided that, if the Company does not provide Subsidiaries or cause its Representatives to provide such access or such information in reliance on the foregoing, then the Company shall (1) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1) any Representative of the Company or its Subsidiary to deliver any certificate or opinion or take any other action under this Section 6.16 that could reasonably be expected to result in personal liability to such Representative; (2) the Board of Directors (or any committee or subcommittee thereof) or the board of directors, managers, managing member or any similar controlling body of any Subsidiary of the Company to approve (or otherwise take any corporate or similar action with respect to) any financing (including the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) the Company and its Subsidiary to take any action that would conflict with or violate its organizational or governance documents or any applicable Legal Requirements, or result in the contravention of, or that could reasonably be expected to result in a violation of breach of, or default under, any agreement to which the Company or its Subsidiary is a partyERAPSCO.
(c) Subject to any applicable Legal Requirements, all non-public or other confidential information provided by the Company, its Subsidiary or any of their respective Representatives pursuant to this Agreement will be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Purchaser will be permitted to disclose such information to any Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties to the Financing and to any underwriters, initial purchasers or placement agents in connection with the Financing (and, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; or (ii) are subject to other confidentiality undertakings reasonably satisfactory to the Company and of which the Company is a beneficiary.
(d) If the Closing does not occur, promptly upon request by the Company, Parent will reimburse the Company for any documented and reasonable out-of-pocket costs and expenses (including attorneys’ fees) incurred by the Company or its Subsidiary in connection with the cooperation of the Company and its Subsidiary contemplated by this Section 6.16 (it being understood and agreed that the reimbursement set forth in this Section 6.16(d) shall not apply to any fees, costs, and expenses incurred by, or on behalf of, the Company, its Subsidiary or any of its Representatives in connection with its ordinary course financial reporting requirements or in the provision of data that, in each case, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding this Section 6.16).
(e) The Parent shall indemnify, defend and hold harmless the Company Entities and their respective Representatives from and against any and all losses, damages, claims, interest, awards, judgments, penalties, costs and expenses suffered or incurred by any of them in connection with the Financing (including any action taken in accordance with this Section 6.16) and costs and expenses incurred in defending against the foregoing, except to the extent such losses, damages, claims, costs or expenses arise from the willful breach of this Agreement by the Company, as finally determined by a court of competent jurisdiction, or from fraud on the part of the Company.
Appears in 1 contract
Samples: Merger Agreement (Sparton Corp)
Financing Cooperation. (a) Subject Prior to Section 6.16(b), prior to Closing or termination of this Agreementthe Closing, the Company shallshall use, and shall cause its Subsidiaries to use, and shall use its commercially reasonable efforts to cause the respective Representatives of the Company and its Subsidiaries to use, in each case, commercially reasonable efforts to provide to Buyer, all cooperation reasonably requested by Buyer in connection with the arrangement of the debt financing (if any) sought by Buyer for the purpose of funding the transactions contemplated by this Agreement (any such financing, the “Financing”), including the following; provided, however, the Company, its Subsidiaries and each of their respective Representatives to, use reasonable best efforts shall not have any obligation to reasonably cooperate with provide any information or access to the financing sources of Buyer pursuant to this Section 7.14 unless and reasonably assist Parent, at the Parent’s request, sole cost and expense, in connection with arranging, obtaining and syndicating any Financing and causing the conditions in the Financing Documents and any commitment letters until such Persons shall have each entered into in connection with such a Financing to be satisfied, including using reasonable best efforts in NDA:
(i) furnishing Buyer and its financing sources such pertinent information regarding the Company and its Subsidiaries (including, without limitation, financial statements of the Company) as is reasonably requested by Buyer or its financing sources to consummate the Financing;
(ii) assisting with, and furnishing information for the purposes of, with the preparation of customary prospectuses (including materials for any pro forma financial information and any information required under Article 18(2) of Commission Delegated Regulation (EU) 2019/980)rating agency presentations, offering documents, syndication documents and materials, including bank information memoranda and private placement memorandasimilar documents required in connection with the Financing;
(iii) executing and providing documents as may be reasonably requested by Buyer, lender to the extent required in connection with the consummation of the Financing;
(iv) reasonably cooperating with the marketing efforts of Buyer and investor presentationsits financing sources for all or any portion of the Financing;
(v) using commercially reasonable efforts to satisfy the conditions precedent set forth in any commitment letter or any definitive documentation relating to the Financing to the extent 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 Buyer’s financing sources; 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 or would require an action that is not within the control of the Company or its Subsidiaries; and provided, rating agency materials and presentations and further, that neither the Company nor any of its Subsidiaries or their respective Representatives shall (1) be required to pay any commitment or other customary marketing materials 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 (all such documents and materials, collectively, other than any continuing officers or directors that will remain after the “Marketing Documents”) (it being understood and agreed that the Marketing Documents shall include (or otherwise be subject to) any customary exculpation language, as the case may be, with respect to the Company, its Affiliates and their respective RepresentativesClosing Date), (ii2) furnishing have any liability or obligation under any document, agreement or certificate related to the Parent as promptly as reasonably practicable financial statements Financing unless and operational information (including consolidated financial statements for interim periods up until the Closing Dateoccurs, (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 can be prepared without undue burden with respect is not readily available to the Company and based on its Subsidiary as current method of recordkeeping, (4) be required to take any action which would cause it to (x) violate or result in a breach of or default under, any Contract to which it is reasonably requested by Parent a party (the “Required Information”including this Agreement), (iiiy) assisting 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); (5) be required to execute and deliver any certificate, document or instrument in connection with the preparation of schedules Financing prior to collateral agreements by providing information the Closing Date unless such document only becomes effective upon the occurrence of the Company Entities required to be made available on such schedules for purposes of the arrangement or consummation of the FinancingClosing, (iv) subject to and in any contractual agreement in effectevent, facilitating the pledging of collateral for the Financing, which shall not be required to deliver or cause the delivery of any certificate as to solvency; (6) be delivered required to provide any legal opinion or effective until at other opinion of counsel, or promptly following the Effective Time, (v) subject to any contractual agreement in effect, obtaining the Payoff Letter, and the related lien releases, and instruments of termination or discharge, as applicable, required pursuant to Section 6.12information that would, in each case which shall provide thatits good faith opinion, if sufficient funds are received by result in a violation of applicable Law or loss of attorney-client privilege; (7) be required to deliver a “comfort letter” or consent from the financing sources under Company’s accountants; (8) encumber any of the Credit Agreement in order assets of the Company or its Subsidiaries or otherwise be an issuer, guarantor or other obligor with respect to pay off in full all obligations (other than the Excluded Obligations) in connection therewith or secured thereby, such release, termination and/or discharge shall be effective, and (vi) furnishing Parent as promptly as reasonably practical (and at least three (3) business days Financing prior to the Closing Date; (9) take any action that could reasonably be expected to subject any director, officer, employee, agent, manager, consultant, advisor or other representative of the Company, its Subsidiaries or any their Affiliates to any actual or potential personal liability; or (10) provide access to or disclose information that the Company determines in good faith could jeopardize any attorney client privilege of, or conflict with any confidentiality obligations binding on, the Company, its Subsidiaries or any of their Affiliate. 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 and in any event prior to the Closing, reimburse the Company for all documentation reasonable and other information related 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). Any amounts so incurred will not be considered Third-Party Expenses or liabilities for purposes of the calculation of Net Working Capital and, to the extent paid and not reimbursed prior to Closing, shall be included in the calculation of Closing Cash. Buyer shall indemnify and hold harmless the Company and its Subsidiary required Subsidiaries and their respective Representatives and Affiliates from and against any and all liabilities or losses suffered or incurred by regulatory authorities under applicable “know your customer” them in connection with the arrangement of the Financing and anti-money laundering rules and regulations, including any information utilized in connection therewith (other than information provided by the PATRIOT Act, that has been reasonably requested in writing by Parent Company or its Financing Sources at least ten (10) business days prior Subsidiaries), in each case, except to the Closing Date. extent such liabilities or losses are suffered or incurred directly as a result of the bad faith, gross negligence, or willful misconduct by the Company or any of its Subsidiaries or, in each case, their respective Representatives and Affiliates.
(c) The Company hereby consents to the use of its the logos of the Company and its Subsidiary’s logos Subsidiaries in connection with the Financing so long as and authorizes Buyer’s financing sources to download copies of such logos from its website for such purposes; provided, that such logos are used solely (i) in a manner that is not intended to or that is not nor reasonably likely to harm or disparage the Company or any of its Subsidiary Subsidiaries or the reputation or goodwill of the Company or its Subsidiary and (ii) solely in connection with a description of the Company, its business and products or the Merger.
(b) Notwithstanding the requirements of Section 6.16(a) or anything in this Agreement to the contrary, (i) neither the Company nor any of its Affiliates Subsidiaries and its or their respective Representatives shall be required to enter into, approve or perform (or commit to enter into, approve or perform) any certificate, document, agreement, or instrument, in each case which will be effective prior to the Effective Time, (ii) nothing herein shall require cooperation contemplated thereby to the extent it would interfere unreasonably with the business or operations of the Company or any of its Affiliates or their respective Affiliates, (iii) none of the Company nor any of its Affiliates or their respective Representatives, will be required to (1) pay or commit to pay any commitment or other fee, (2) reimburse or incur any costs or expenses or incur any other liability (including any guarantee, indemnity or pledge) in connection with the Financing or the Marketing Documents prior to the Effective Time, (3) provide any financial data other than the Required Information, or (4) provide any legal opinion or reliance letters or any certificate (in the case of the Company or its Subsidiary that would be required to be delivered prior to the Effective Time), comfort letter or opinion of any of its Representatives, (iv) nothing herein will involve any binding commitment by the Company, any of its Affiliates or any of their respective Representatives which commitment is not conditioned on the Effective Time and does not terminate without liability to the Company, its Affiliates and their respective Representatives upon the termination of this Agreement, and (v) nothing herein will require the Company, any of its Affiliates or any of their respective Representatives to provide any information or take any action, the disclosure or taking of which would violate applicable Legal Requirements, any fiduciary duty, any Contract or obligation of confidentiality owing to a third party, or jeopardize the protection of the attorney-client privilege (or similar protections) held by the Company or any of its Affiliates; provided that, if the Company does not provide or cause its Representatives to provide such access or such information in reliance on the foregoing, then the Company shall (1) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1) any Representative of the Company or its Subsidiary to deliver any certificate or opinion or take any other action under this Section 6.16 that could reasonably be expected to result in personal liability to such Representative; (2) the Board of Directors (or any committee or subcommittee thereof) or the board of directors, managers, managing member or any similar controlling body of any Subsidiary of the Company to approve (or otherwise take any corporate or similar action with respect to) any financing (including the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) the Company and its Subsidiary to take any action that would conflict with or violate its organizational or governance documents or any applicable Legal Requirements, or result in the contravention of, or that could reasonably be expected to result in a violation of breach of, or default under, any agreement to which the Company or its Subsidiary is a party.
(c) Subject to any applicable Legal Requirements, all non-public or other confidential information provided by the Company, its Subsidiary or any of their respective Representatives pursuant to this Agreement will be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Purchaser will be permitted to disclose such information to any Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties to the Financing and to any underwriters, initial purchasers or placement agents in connection with the Financing (and, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; or (ii) are subject to other confidentiality undertakings reasonably satisfactory to the Company and of which the Company is a beneficiarymarks.
(d) If Notwithstanding this Section 7.14 or anything else in this Agreement, Buyer affirms that it is not a condition to the Closing does not occur, promptly upon request by the Company, Parent will reimburse the Company or to any of its other obligations under this Agreement that Buyer obtain financing for or related to any documented and reasonable out-of-pocket costs and expenses (including attorneys’ fees) incurred by the Company or its Subsidiary in connection with the cooperation of the Company and its Subsidiary transactions contemplated by this Section 6.16 Agreement (it being understood and agreed that the reimbursement set forth in this Section 6.16(d) shall not apply to any fees, costs, and expenses incurred by, or on behalf of, the Company, its Subsidiary including all or any portion of its Representatives in connection with its ordinary course financial reporting requirements or in the provision of data that, in each case, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding this Section 6.16Financing).
(e) The Parent shall indemnify, defend and hold harmless the Company Entities and their respective Representatives from and against any and all losses, damages, claims, interest, awards, judgments, penalties, costs and expenses suffered or incurred by any of them in connection with the Financing (including any action taken in accordance with this Section 6.16) and costs and expenses incurred in defending against the foregoing, except to the extent such losses, damages, claims, costs or expenses arise from the willful breach of this Agreement by the Company, as finally determined by a court of competent jurisdiction, or from fraud on the part of the Company.
Appears in 1 contract
Samples: Merger Agreement (F5 Networks, Inc.)
Financing Cooperation. (a) Subject The Company acknowledges that Parent intends to Section 6.16(bobtain debt financing to finance all or a portion of the Merger Consideration (the “Proposed Financing”). Notwithstanding anything to the contrary contained herein, Parent agrees that (i) prior to Closing the Closing, none of the Company or termination any of its Subsidiaries shall have any liability (whether in contract, tort or otherwise) for any one or more of the representations, warranties, covenants, agreements or other obligations under the agreements for the Proposed Financing, (ii) such Proposed Financing shall not contain any restrictive covenant or other obligations that are required to be performed or complied with by the Company or any of its Subsidiaries prior to the Closing, and (iii) the obligations of Parent and Acquisition Sub under this Agreement are not subject to any conditions regarding Parent’s, its Affiliates’, or any other Person’s ability to obtain the Proposed Financing or any other financing for the consummation of the transactions contemplated hereby.
(b) Until the Closing, subject to the other terms and conditions of this Agreement, the Company shallshall use its reasonable best efforts to provide, and shall to cause its Subsidiaries and its and their respective Representatives toto provide, use upon the reasonable best efforts to reasonably cooperate with and reasonably assist request of Parent, at the Parent’s request, sole cost reasonable and expense, customary cooperation in connection with arrangingthe Proposed Financing (to the extent not in violation of this Agreement), obtaining including by: (i) reasonably cooperating with any customary due diligence process as reasonably requested by Parent, including instructing appropriate members of senior management to participate in a reasonable number of meetings, if any (it being understood that such meetings may occur telephonically or by videoconferencing) in connection with the Proposed Financing upon reasonable advance notice and syndicating any at mutually agreeable dates and times; (ii) providing pertinent historical financial information as is reasonably available to the Company, customarily required for completion of debt financings similar to the Proposed Financing and causing the conditions reasonably requested by Parent in the Financing Documents and any commitment letters entered into order to obtain or in connection with such Financing to be satisfiedfinancing, including using reasonable best efforts the Required Information; (iii) reasonably assisting Parent in (i) assisting with, and furnishing information for the purposes of, the its preparation of customary prospectuses offering and marketing documents (including any pro forma financial information and any information supplements thereto) required under Article 18(2) of Commission Delegated Regulation (EU) 2019/980), offering documents, syndication documents and materials, including bank information memoranda and private placement memoranda, lender and investor presentations, rating agency materials and presentations and other customary marketing materials in connection with the Financing Proposed Financing; and (all such documents and materials, collectively, the “Marketing Documents”iv) (it being understood and agreed that the Marketing Documents shall include (or otherwise be subject to) any customary exculpation language, as the case may be, with respect to the Company, its Affiliates and their respective Representatives), (ii) furnishing to the Parent as promptly as reasonably practicable financial statements and operational information (including consolidated financial statements for interim periods up until the Closing Date) that can be prepared without undue burden with respect to the Company and its Subsidiary as is extent reasonably requested by Parent Parent, requesting the consent of, and customary comfort letters from, the Company’s independent accountants (the “Required Information”), (iiiand providing customary management letters and requesting legal letters to obtain such consent) assisting in the preparation of schedules to collateral agreements by providing information if necessary for Parent’s use of the Company Entities required to be made available on such schedules for purposes of Company’s financial statements. Notwithstanding the arrangement or consummation of the Financingforegoing, (iv) subject to any contractual agreement in effect, facilitating the pledging of collateral for the Financing, which shall not be required to be delivered or effective until at or promptly following the Effective Time, (v) subject to any contractual agreement in effect, obtaining the Payoff Letter, and the related lien releases, and instruments of termination or discharge, as applicable, required pursuant to Section 6.12, in each case which shall provide that, if sufficient funds are received by the financing sources under the Credit Agreement in order to pay off in full all obligations (other than the Excluded Obligations) in connection therewith or secured thereby, such release, termination and/or discharge shall be effective, and (vi) furnishing Parent as promptly as reasonably practical (and at least three (3) business days prior to the Closing Date) with all documentation and other information related to the Company and its Subsidiary required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, that has been reasonably requested in writing by Parent or its Financing Sources at least ten (10) business days prior to the Closing Date. The Company hereby consents to the use of its and its Subsidiary’s logos in connection with the Financing so long as such logos are used solely (i) in a manner that is not intended to or that is not reasonably likely to harm or disparage the Company or its Subsidiary or the reputation or goodwill of the Company or its Subsidiary and (ii) solely in connection with a description none of the Company, any of its business and products or the Merger.
(b) Notwithstanding the requirements of Section 6.16(a) or anything in this Agreement to the contrary, (i) neither the Company Subsidiaries nor any of its Affiliates or their respective Representatives shall be required to enter into, approve take or perform (or commit to enter into, approve or perform) any certificate, document, agreement, or instrument, in each case which will be effective prior to permit the Effective Time, (ii) nothing herein shall require cooperation contemplated thereby to the extent it would interfere unreasonably with the business or operations of the Company or any of its Affiliates or their respective Affiliates, (iii) none of the Company nor any of its Affiliates or their respective Representatives, will be required to (1) pay or commit to pay any commitment or other fee, (2) reimburse or incur any costs or expenses or incur any other liability (including any guarantee, indemnity or pledge) in connection with the Financing or the Marketing Documents prior to the Effective Time, (3) provide any financial data other than the Required Information, or (4) provide any legal opinion or reliance letters or any certificate (in the case of the Company or its Subsidiary that would be required to be delivered prior to the Effective Time), comfort letter or opinion taking of any of its Representatives, action pursuant to this Section 6.10(b) that would: (ivA) nothing herein will involve any binding commitment by the Company, any of its Affiliates or any of their respective Representatives which commitment is not conditioned on the Effective Time and does not terminate without liability to the Company, its Affiliates and their respective Representatives upon the termination of this Agreement, and (v) nothing herein will require the Company, any of its Affiliates Subsidiaries or any of their respective Representatives to pass resolutions or consents to approve or authorize the execution of the Proposed Financing, or to enter into or execute any certificate, document, instrument or agreement or agree to any change or modification of any existing certificate, document, instrument or agreement or take any other similar action to the extent any such action would be effective prior to the Closing (other than signing customary authorization letters), (B) require the Company, any of its Subsidiaries or any of their respective Representatives to pay any commitment or other similar fee or incur any other expense, liability or obligation in connection with such financing, (C) cause any director, officer, employee or stockholder of the Company, any of its Subsidiaries or any of their respective Representatives to incur any personal liability or take action that could reasonably be expected to result in such liability, (D) conflict with the organizational documents of the Company, any of its Subsidiaries or any of their respective Representatives or any Laws, (E) 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, any of its Subsidiaries or any of their respective Representatives is a party, (F) require the Company, any of its Subsidiaries or any of their respective Representatives to provide access to or disclose information that could jeopardize any attorney-client privilege or other applicable privilege of such Person (provided, however, that the Company shall use commercially reasonable efforts to provide such access or disclose such information in a manner that would not jeopardize such attorney-client or other applicable privilege), (G) cause any condition to Closing set forth in Article VII (Conditions to the Merger) to fail to be satisfied or otherwise cause any breach of this Agreement that would provide Parent the right to terminate this Agreement or (H) require the Company, any of its Subsidiaries or any of their respective Representatives to provide any information legal opinions, prepare any pro forma financial information, budgets or take projections (which shall be the sole responsibility of Parent to prepare) or update any actionprojections that the Company or its Representatives previously provided to Parent. Notwithstanding anything in this Agreement to the contrary, Parent shall ensure that any requested cooperation does not, and such cooperation shall not, unreasonably interfere with the disclosure ongoing business or taking operations of which would violate applicable Legal Requirementsthe Company, any fiduciary dutyof its Subsidiaries or any of their respective Representatives.
(c) Parent shall, promptly upon request by the Company, reimburse the Company, its Subsidiaries and their respective Representatives for all reasonable and documented out-of-pocket fees and expenses incurred by such Persons in connection with such requested cooperation, and Parent shall indemnify, defend and hold harmless the Company, its Subsidiaries and their respective Representatives against any Contract and all costs, expenses, judgments, fines, claims, losses, penalties, damages, interest, awards and liabilities directly or obligation indirectly suffered or incurred by them as a result of confidentiality owing to a third party, or jeopardize the protection any Action against them arising out of the attorney-client privilege Proposed Financing (including any acts performed by them under this Section 6.10) and any information utilized in connection therewith, except, in each case, to the extent such costs, expenses, judgments, fines, claims, losses, penalties, damages, interest, awards or similar protections) held by liabilities result from the gross negligence, fraud or willful misconduct of the Company or any of its Affiliates; provided thatSubsidiaries, if the Company does not provide or cause its Representatives to provide such access or such information in reliance on the foregoing, then the Company shall (1) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1) any Representative of the Company or its Subsidiary to deliver any certificate or opinion or take any other action under this Section 6.16 that could reasonably be expected to result in personal liability to such Representative; (2) the Board of Directors (or any committee or subcommittee thereof) or the board of directors, managers, managing member or any similar controlling body of any Subsidiary of the Company to approve (or otherwise take any corporate or similar action with respect to) any financing (including the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) the Company and its Subsidiary to take any action that would conflict with or violate its organizational or governance documents or any applicable Legal Requirements, or result in the contravention of, or that could reasonably be expected to result in a violation of breach of, or default under, any agreement to which the Company or its Subsidiary is a party.
(c) Subject to any applicable Legal Requirements, all non-public or other confidential information provided by the Company, its Subsidiary or any of their respective Representatives.
(d) All non-public, confidential information obtained by Parent or any of its Representatives pursuant to this Agreement will Section 6.10 or otherwise in connection with the Proposed Financing shall be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Purchaser will be permitted to disclose such information to any Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties to the Financing and to any underwriters, initial purchasers or placement agents in connection with the Financing (and, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; or (ii) are subject to other confidentiality undertakings reasonably satisfactory to the Company and of which the Company is a beneficiary.
(de) If The Company’s obligations under this Section 6.10 are the Closing does not occur, promptly upon request sole obligations of the Company with respect to the Proposed Financing and no other provision of this Agreement shall be deemed to expand or modify such obligations. In no event shall the Company or any of its Subsidiaries be in breach of this Agreement because of the failure by the Company, Parent will reimburse the Company for any documented and of its Subsidiaries or any of their respective Representatives to deliver, after use of commercially reasonable out-of-pocket costs and expenses (including attorneys’ fees) incurred by efforts to do so, any information that is not currently readily available to the Company or its Subsidiary in connection with Subsidiaries on the cooperation of the Company and its Subsidiary contemplated by this Section 6.16 (it being understood and agreed that the reimbursement set forth in this Section 6.16(d) shall date hereof or is not apply to any fees, costs, and expenses incurred by, or on behalf of, the Company, its Subsidiary or any of its Representatives in connection with its ordinary course financial reporting requirements or in the provision of data that, in each case, was already otherwise prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding or for failure to obtain, after use of its reasonable best efforts, any information from its accountants. Notwithstanding anything to the contrary herein, it is understood and agreed that the condition precedent set forth in Section 7.2(b) as applied to the Company’s obligations under this Section 6.16).
(e) The Parent 6.10 shall indemnify, defend and hold harmless be deemed satisfied unless the Company Entities and their respective Representatives from and against any and all losses, damages, claims, interest, awards, judgments, penalties, costs and expenses suffered or incurred by any Proposed Financing has not been obtained as a direct result of them in connection with the Financing (including any action taken in accordance with Company’s intentional material breach of its obligations under this Section 6.16) and costs and expenses incurred in defending against the foregoing, except 6.10 to the extent such losses, damages, claims, costs or expenses arise from breach is the willful breach primary cause of this Agreement by the unavailability of the Proposed Financing. None of the Company, as finally determined by a court any of competent jurisdiction, its Subsidiaries or from fraud on any of their respective Representatives shall have any obligations under this Section 6.10 following the part of the CompanyEffective Time.
Appears in 1 contract
Samples: Merger Agreement (Veoneer, Inc.)
Financing Cooperation. (a) Subject to Section 6.16(b), prior to During the period from the date of this Agreement through the earlier of the Closing or the termination of this AgreementAgreement in accordance with its terms, the Company shallshall provide, and shall cause its Subsidiaries to provide, and their respective Representatives to, shall use its commercially reasonable best efforts to reasonably cooperate with and reasonably assist Parent, at the Parent’s request, sole cost and expense, in connection with arranging, obtaining and syndicating any Financing and causing the conditions in the Financing Documents and any commitment letters entered into in connection with such Financing to be satisfied, including using reasonable best efforts in (i) assisting with, and furnishing information for the purposes of, the preparation of customary prospectuses cause its Representatives (including any pro forma financial information its legal and any information required under Article 18(2accounting representatives) of Commission Delegated Regulation (EU) 2019/980)to provide, offering documentssuch cooperation as is reasonably requested by Parent or as is customary, syndication documents and materials, including bank information memoranda and private placement memoranda, lender and investor presentations, rating agency materials and presentations and other customary marketing materials necessary or advisable in connection with the Financing arrangement, negotiation, obtainment and closing of the financing (all such documents and materials, collectively, the “Marketing DocumentsFinancing”) contemplated by the commitment letters (it being understood including the Debt Commitment Letter), facility agreements and agreed that other agreements (the Marketing Documents shall include “Financing Agreements”) or, if applicable, any alternative financing (the Financing or otherwise be subject to) any customary exculpation languagealternative financing, as the case may be, is referred to in this Section 5.12 as the “Respective Financing”), including by (i) (A) causing the participation of management of the Company and its Subsidiaries (including for participation at a reasonable number of organizational meetings, presentations, drafting sessions, due diligence meetings, ratings agency meetings, road shows and meetings with prospective Financing Sources), (B) causing management of the Company and its Subsidiaries to make reasonably available documents and information of the Company and its Subsidiaries as may be reasonably requested by Parent or its lender and any ratings agencies, including financial statements and financial and other information upon request therefor, and (C) using commercially reasonable efforts to cause the participation of the Company’s independent accountants to provide such services as may be reasonably necessary in respect of the Respective Financing, to the extent permissible under Law and their professional standards, (ii) using commercially reasonable efforts to cause the Company’s independent accountants to provide consent to the use of the Audited Financial Statements in the offering documents, (iii) providing reasonable assistance with respect to the Companyreview and granting of any security interests in and/or pledging of collateral for and providing of guarantees supporting the Respective Financing and obtaining any consents associated therewith, (iv) providing (or using commercially reasonable efforts to cause its Affiliates advisors to provide) reasonable assistance to Parent and their respective Representativesits Financing Sources in the preparation of (A) offering and syndication documents (including public and private information memoranda and lender presentations), private placement memoranda, bank information memoranda, offering memoranda, prospectuses and supplements thereto, lender and investor presentations, representation letters, and similar documents for any portion of the Respective Financing (in the case of any marketing materials to be used in connection with the issuance of securities, having regard to the requirements of applicable securities Laws and market practice in the context of a public offering of securities), (iiB) furnishing materials for rating agency presentations and (C) business projections and similar marketing documents reasonably required in connection with the Respective Financing (including a customary confidential information memorandum), (v) preparing and/or negotiating, executing and delivering (or using commercially reasonable efforts to obtain from its advisors), and causing its Affiliates to execute and deliver (or use commercially reasonable efforts to obtain from their advisors), customary financing agreements, including credit agreements, note purchase agreements, underwriting and purchase agreements, customary certificates, accountants’ comfort letters (and consents of accountants for use of their reports in any materials relating to the Respective Financing and in connection with any filings required to be made by Parent as promptly as reasonably practicable pursuant to the Securities Act of 1933 or the Securities Exchange Act of 1934 where the financial statements and operational information (including consolidated financial statements for interim periods up until the Closing Date) that can be prepared without undue burden with respect to of the Company and its Subsidiary Subsidiaries or any of the other Required Information is included or incorporated by reference), or other documents and instruments relating to guarantees and other matters ancillary to the Respective Financing as is may be reasonably requested by Parent (as necessary and customary in connection with the “Required Information”)Respective Financing, (iiivi) delivering such financial statements required pursuant to the second paragraph of Section 5 of Exhibit C to the Debt Commitment Letter and other customary financing deliverables, including insurance certificates and a solvency certificate, as required in connection with the Respective Financing, (vii) if applicable, by otherwise reasonably cooperating with Parent’s Financing Sources (including the Lenders) in achieving a timely offering and/or syndication of the funding for the Respective Financing, (viii) assisting in Parent to obtain customary consents for the preparation consummation of schedules to collateral agreements by the Respective Financing, (ix) providing information Parent with any financial statements of the Company Entities or its Subsidiaries required to be made available on such schedules provided after the date hereof to the trustee under the Senior Notes Indenture, (x) using commercially reasonable efforts to ensure that the syndication efforts for purposes the Respective Financing benefit from the existing lending relationships of the arrangement or consummation of the FinancingCompany and its Subsidiaries, (ivxi) subject to any contractual agreement in effectproviding, facilitating the pledging of collateral for the Financing, which shall not be required to be delivered or effective until at or promptly following the Effective Time, (v) subject to any contractual agreement in effect, obtaining the Payoff Letter, and the related lien releases, and instruments of termination or discharge, as applicable, required pursuant to Section 6.12, in each case which shall provide that, if sufficient funds are received by the financing sources under the Credit Agreement in order to pay off in full all obligations (other no later than the Excluded Obligations) in connection therewith or secured thereby, such release, termination and/or discharge shall be effective, and (vi) furnishing Parent as promptly as reasonably practical (and at least three (3) business days five Business Days prior to the Closing Date) with Closing, all documentation and other information related as has been reasonably requested in writing at least 10 Business Days prior to Closing by the Company and its Subsidiary Financing Sources that they reasonably determine is required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT ActAct and (xii) obtaining such documentation and/or taking such steps (including payoff letters, that has been lien releases and instruments of termination or discharge) reasonably requested by Parent in writing by order to pay in full all existing indebtedness contemplated herein to be paid in full at Closing (including the Closing Date Indebtedness) and to release all liens over the properties and assets of the Company and its Subsidiaries securing such indebtedness. The Company shall promptly supplement the information provided to Parent or its Financing Sources at least ten (10) business days prior pursuant to this Section 5.12 to the Closing Dateextent that any such information would be incorrect in any material respect if such information were being furnished at such time. The Company hereby consents Notwithstanding anything to the use of its contrary set forth herein, Parent and its Subsidiary’s logos in connection with the Financing so long as such logos are used solely (i) in a manner Merger Sub acknowledge and agree that is not intended to any breach or that is not reasonably likely to harm or disparage alleged breach by the Company or any of its Subsidiary Subsidiaries or the reputation or goodwill respective Representatives of this Section 5.12 shall not constitute a failure of a condition to Closing under Article VI, including a failure of the Company or its Subsidiary condition set forth in Section 6.2(b), unless such breach is willful and (ii) solely in connection with a description of the Company, its business and products or the Mergermaterial.
(b) Notwithstanding the requirements of Section 6.16(a) or anything Nothing in this Agreement to the contrary, (i) neither the Company nor any of its Affiliates or their respective Representatives shall be required to enter into, approve or perform (or commit to enter into, approve or perform) any certificate, document, agreement, or instrument, in each case which will be effective prior to the Effective Time, (ii) nothing herein Section 5.12 shall require such cooperation contemplated thereby to the extent it would interfere unreasonably with the business or operations of the Company or any of its Affiliates or their respective AffiliatesSubsidiaries. In addition, (iiii) none of prior to the Closing, neither the Company nor any of its Affiliates or their respective Representatives, will Subsidiaries shall be required to (1) pay or commit to pay any commitment or other fee, (2) reimburse similar fee or incur any costs or expenses or incur become subject to any other liability (including any guarantee, indemnity Liability or pledge) obligation in connection with the Financing or the Marketing Documents prior to the Effective Time, Respective Financing; (3ii) provide any financial data other than the Required Information, or (4) provide any legal opinion or reliance letters or any certificate (in the case none of the Company or its Subsidiary that would be required to be delivered prior to the Effective Time), comfort letter or opinion of any of its Representatives, (iv) nothing herein will involve any binding commitment by the Company, any of its Affiliates or any of their respective Representatives which commitment is not conditioned on the Effective Time and does not terminate without liability to the Company, its Affiliates and Subsidiaries or their respective Representatives shall be required to (A) authorize, execute or enter into or perform any agreement or take any action or commit to take any action with respect to the Respective Financing that is not contingent upon the termination Closing or that would be effective prior to the Closing (other than any customary authorization letters relating to any offering or syndication document), (B) enter into any resolution, consent, approval or similar corporate action, including any relating to approving the Respective Financing or any guarantee or pledge of this Agreementassets in connection therewith that is not contingent upon the Closing or that would be effective prior to the Closing or (C) make any representation, warranty or certification as to which the Company has determined such representation, warranty or certification is not true; and (viii) nothing herein will require shall obligate the Company, Company or any of its Affiliates Subsidiaries to provide, or cause to be provided, any of their respective Representatives legal opinion by its counsel, or to provide any information or take any actionaction to the extent it would result in a violation of Law or loss of any privilege.
(c) (i) Subject to the terms and conditions of this Agreement, each of Parent and Merger Sub shall use its reasonable best efforts to obtain the Financing (or, if applicable, any alternative financing) on the terms and subject only to the conditions (including the flex provisions and taking into account the Marketing Period) expressly described in the Debt Commitment Letter at or prior to the Closing (taking into account the Marketing Period), and shall not, without the prior written consent of the Company, permit any amendment or modification to be made to, or any waiver of any provision under, the disclosure Debt Commitment Letter, in a manner that would reasonably be expected to (x) delay, prevent or taking make less likely the funding of which would violate applicable Legal Requirementsthe Financing contemplated by the Debt Commitment Letter (or satisfaction of the conditions precedent to the Financing) on or prior to the Closing Date or (y) extend or permit the extension of the Marketing Period (provided that, without the consent of the Company and notwithstanding anything to the contrary contained herein, Parent may amend the Debt Commitment Letter (A) to modify pricing terms in a manner to make more likely the funding of the Financing contemplated by the Debt Commitment Letter (or, if applicable, any fiduciary duty, any Contract or obligation of confidentiality owing to a third partyalternative financing), or add additional lenders, arrangers, bookrunners and agents or (B) to implement or exercise any of the “market flex” provisions (including pricing terms) contained in the fee letter executed in connection with the Debt Commitment Letter). Parent shall promptly deliver to the Company copies of any such amendment, modification or replacement.
(ii) Each of Parent and Merger Sub will use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (except to the extent replaced in accordance with this Section 5.12), (B) to enter into the Financing Agreements with respect to the Financing consistent with the terms and conditions (including the flex provisions and taking into account the Marketing Period) contained in the Debt Commitment Letter (or on terms not materially less favorable (taken as a whole) to Parent than the terms and conditions (including flex provisions) in the Debt Commitment Letter), (C) to satisfy (or obtain the waiver of) all conditions precedent to funding in the Financing Agreements (taking into account the Marketing Period and other than any condition where the failure to be so satisfied is a direct result of the Company’s failure to furnish information described in Section 5.12(a)) that are within Parent’s control so as to consummate the Financing at or prior to the Closing and (D) to enforce its rights under the Financing Agreements to the extent such funds are required by Parent to consummate the transactions contemplated by this Agreement. Parent shall keep the Company reasonably informed on a current basis and in reasonable detail of the status of its efforts to arrange the Financing. Without limiting the generality of the foregoing, Parent shall give the Company prompt notice (x) upon becoming aware of any material breach or default by any party to the Financing Agreements, (y) of the receipt of (I) any written notice or (II) other written communication, in each case from any Financing Source with respect to any actual or potential material breach, default, termination or repudiation by any Financing Source of any provisions of the Financing Agreements, and (z) if at any time for any reason Parent believes that it will not be able to obtain all or any portion of the Financing on the terms and conditions, in the manner or from the Financing Sources, and such funds are required by Parent to consummate the transactions contemplated by this Agreement. As soon as reasonably practicable after any notice by Parent to the Company of the type described in the immediately preceding sentence, but in any event within two Business Days of the date the Company delivers to Parent a written request, Parent shall use reasonable best efforts to provide any information reasonably requested by the Company relating to any circumstance referred to in clause (x), (y) or (z) of the immediately preceding sentence; provided, that Parent shall not be obligated to provide any information if Parent determines, in its reasonable judgment, that doing so would jeopardize the protection of the attorney-client privilege privilege. If all or any portion of the Financing becomes unavailable for any reason and such funds are required by Parent to consummate the transactions contemplated by this Agreement, Parent, Merger Sub and the Surviving Corporation shall use their reasonable best efforts to arrange and obtain in replacement thereof or in addition thereto alternative debt and/or equity Financing from alternative sources in an amount sufficient, when taken together with cash available to Parent and any then-available Financing pursuant to the Debt Commitment Letter to consummate the Transactions, with such alternative Financing having terms and conditions not materially less favorable (or similar protectionstaken as a whole) held by to Parent than the terms and conditions (taken as a whole) set forth in the Debt Commitment Letter, as promptly as reasonably practicable following the occurrence of such event. Parent shall deliver to the Company or any true and complete copies of its Affiliates; provided that, if the Company does not provide or cause its Representatives to provide such access or such information in reliance on the foregoing, then the Company shall all commitment letters and fee letters (1) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information as redacted in a way that would not violate such applicable Legal Requirementscustomary manner to remove the fee amounts, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing pricing caps, the rates and amounts included in this Section 6.16 will require the “market flex” and certain other terms (1) any Representative none of the Company or its Subsidiary to deliver any certificate or opinion or take any other action under this Section 6.16 that which could reasonably be expected to result in personal liability to such Representative; (2) adversely affect the Board of Directors (conditionality, enforceability, termination or any committee or subcommittee thereof) or the board of directors, managers, managing member or any similar controlling body of any Subsidiary aggregate principal amount of the Company Financing)) pursuant to approve (or otherwise take which any corporate or similar action with respect to) such alternative sources shall have committed to provide any financing (including portion of the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) the Company and its Subsidiary to take any action that would conflict with or violate its organizational or governance documents or any applicable Legal Requirements, or result in the contravention of, or that could reasonably be expected to result in a violation of breach of, or default under, any agreement to which the Company or its Subsidiary is a party.
(c) Subject to any applicable Legal Requirements, all non-public or other confidential information provided by the Company, its Subsidiary or any of their respective Representatives pursuant to this Agreement will be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Purchaser will be permitted to disclose such information to any Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties to the Financing and to any underwriters, initial purchasers or placement agents in connection with the Financing (and, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; or (ii) are subject to other confidentiality undertakings reasonably satisfactory to the Company and of which the Company is a beneficiary.
(d) If the Closing does not occur, promptly upon request by the Company, Parent will reimburse the Company for any documented and reasonable out-of-pocket costs and expenses (including attorneys’ fees) incurred by the Company or its Subsidiary in connection with the cooperation of the Company and its Subsidiary contemplated by this Section 6.16 (it being understood and agreed that the reimbursement set forth in this Section 6.16(d) shall not apply to any fees, costs, and expenses incurred by, or on behalf of, the Company, its Subsidiary or any of its Representatives in connection with its ordinary course financial reporting requirements or in the provision of data that, in each case, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding this Section 6.16).
(e) The Parent shall indemnify, defend and hold harmless the Company Entities and their respective Representatives from and against any and all losses, damages, claims, interest, awards, judgments, penalties, costs and expenses suffered or incurred by any of them in connection with the Financing (including any action taken in accordance with this Section 6.16) and costs and expenses incurred in defending against the foregoing, except to the extent such losses, damages, claims, costs or expenses arise from the willful breach of this Agreement by the Company, as finally determined by a court of competent jurisdiction, or from fraud on the part of the Company.
Appears in 1 contract
Financing Cooperation. (a) Subject Prior to Section 6.16(b), prior to Closing or termination of this Agreementthe Effective Time, the Company shallshall use its reasonable best efforts to provide, and shall cause its Subsidiaries Affiliates and their respective Representatives to, to use reasonable best efforts to reasonably cooperate with and reasonably assist Parent, at the Parent’s request, sole cost and expenseprovide, in connection with arrangingthe arrangement of the Debt Financing, obtaining and syndicating any Financing and causing the conditions in the Financing Documents and any commitment letters entered into in connection with such Financing to be satisfied, including using all reasonable best efforts in (i) assisting with, and furnishing information for the purposes of, the preparation of cooperation requested by Parent that is customary prospectuses (including any pro forma financial information and any information required under Article 18(2) of Commission Delegated Regulation (EU) 2019/980), offering documents, syndication documents and materials, including bank information memoranda and private placement memoranda, lender and investor presentations, rating agency materials and presentations and other customary marketing materials in connection with the Financing arrangement of debt financing for transactions that are substantially similar to the transactions contemplated by this Agreement, including using its reasonable best efforts to (a) furnish the Debt Providers in a timely manner with financial and other pertinent information regarding the Company required pursuant to the Debt Commitment Letter and necessary to commence the Required Marketing Period as defined in the Debt Commitment Letter (all such documents and materialsinformation, collectively, the “Marketing Documents”) (it being understood and agreed that the Marketing Documents shall include (or otherwise be subject to) any customary exculpation language, as the case may be, with respect to the Company, its Affiliates and their respective Representatives), (ii) furnishing to the Parent as promptly as reasonably practicable financial statements and operational information (including consolidated financial statements for interim periods up until the Closing Date) that can be prepared without undue burden with respect to the Company and its Subsidiary as is reasonably requested by Parent (the “Required Information”)) and any supplements to the Required Information required by the Debt Commitment Letters; (b) participate in a reasonable number of meetings, drafting sessions, road shows, rating agency presentations and due diligence sessions; (iiic) assisting furnish Parent for distribution to the Debt Providers as promptly as practicable with pertinent information as is customary in connection with the Debt Financing regarding the Company’s assets and operations and any security required therefor, including providing, as promptly as practicable following a request therefor, monthly financial and operating data relating to the Company’s assets and operations that is reasonably requested by Parent; (d) assist Parent and the Debt Providers in the preparation of schedules to collateral agreements by providing information (i) a customary offering document for any of the Company Entities required Debt Financing, and (ii) materials for rating agency presentations; (e) use 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; (f) take all corporate actions, subject to the consummation of the Closing, reasonably requested by Parent to permit the consummation of the Debt Financing and to permit the proceeds thereof to be made available on such schedules for purposes to Parent; (g) cause the appropriate authorized Representatives of the arrangement Company to execute and deliver any pledge and security documents, definitive financing documents or other certificates or documents as may be reasonably requested by Parent or otherwise facilitate the pledging of Collateral (as defined in the Debt Commitment Letter) for delivery at the consummation of the FinancingFinancing at and as of the Effective Time (unless otherwise specified, but not before the Effective Time); (ivh) subject cause the appropriate authorized Representatives of the Company to execute and deliver any contractual agreement in effectcredit agreements or indentures or other definitive financing documents on terms satisfactory to Parent at and as of the Effective Time; (i) provide, facilitating if requested by Parent, authorization letters to the pledging Debt Providers authorizing the distribution of collateral for information to prospective lenders; (j) cooperate reasonably with the FinancingDebt Providers’ due diligence, to the extent customary and reasonable; (k) cooperate reasonably with the Debt Providers to obtain accountant’s comfort letters, which comfort letter shall not be required comply with the requirements of PCAOB AU Section 634, and legal opinions reasonably requested by Parent and customary for financings similar to be delivered or effective until the Debt Financing; (l) at or promptly following least five (5) days prior to the Effective Time, (v) subject to any contractual agreement in effect, obtaining the Payoff Letter, and the related lien releases, and instruments of termination or discharge, as applicable, required pursuant to Section 6.12, in each case which shall provide that, if sufficient funds are received by the financing sources under the Credit Agreement in order to pay off in full all obligations (other than the Excluded Obligations) in connection therewith or secured thereby, such release, termination and/or discharge shall be effective, and (vi) furnishing Parent as promptly as reasonably practical (and at least three (3) business days prior to the Closing Date) with all documentation and other information related to about the Company and its Subsidiary required as is reasonably requested in writing by regulatory authorities under Parent which relates to applicable “know your customer” and anti-money laundering rules and regulations, regulations including without limitation the USA PATRIOT Act, that has been reasonably requested in writing by Parent or its Financing Sources at least ten (10) business days prior to the Closing Date. The Company hereby consents to the use of its and its Subsidiary’s logos in connection with the Financing so long as such logos are used solely (i) in a manner that is not intended to or that is not reasonably likely to harm or disparage the Company or its Subsidiary or the reputation or goodwill of the Company or its Subsidiary ACT; and (iim) solely in connection with a description of take all actions reasonably necessary to permit the Debt Providers to evaluate the Company’s inventory, its business current assets, cash management and products or the Merger.
(b) Notwithstanding the requirements of Section 6.16(a) or anything accounting systems, policies and procedures relating thereto. Nothing in this Agreement to the contrary, (i) neither the Company nor any of its Affiliates or their respective Representatives shall be required to enter into, approve or perform (or commit to enter into, approve or perform) any certificate, document, agreement, or instrument, in each case which will be effective prior to the Effective Time, (ii) nothing herein Section 7.05 shall require such cooperation contemplated thereby to the extent it would interfere unreasonably with the business or operations of (i) require the Company to waive or amend any of its Affiliates or their respective Affiliates, (iii) none of the Company nor any of its Affiliates or their respective Representatives, will be required to (1) pay or commit to pay any commitment or other fee, (2) reimburse or incur any costs or expenses or incur any other liability (including any guarantee, indemnity or pledge) in connection with the Financing or the Marketing Documents prior to the Effective Time, (3) provide any financial data other than the Required Information, or (4) provide any legal opinion or reliance letters or any certificate (in the case of the Company or its Subsidiary that would be required to be delivered prior to the Effective Time), comfort letter or opinion of any of its Representatives, (iv) nothing herein will involve any binding commitment by the Company, any of its Affiliates or any of their respective Representatives which commitment is not conditioned on the Effective Time and does not terminate without liability to the Company, its Affiliates and their respective Representatives upon the termination terms of this Agreement, and (vii) nothing herein will require unreasonably interfere with the ongoing operations of the Company, any of its Affiliates or any of their respective Representatives to provide any information or take any action, the disclosure or taking of which would violate applicable Legal Requirements, any fiduciary duty, any Contract or obligation of confidentiality owing to a third party, or jeopardize the protection of the attorney-client privilege (or similar protections) held by the Company or any of its Affiliates; provided that, if the Company does not provide or cause its Representatives to provide such access or such information in reliance on the foregoing, then the Company shall (1) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1) any Representative of the Company or its Subsidiary to deliver any certificate or opinion or take any other action under this Section 6.16 that could reasonably be expected to result in personal liability to such Representative; (2) the Board of Directors (or any committee or subcommittee thereof) or the board of directors, managers, managing member or any similar controlling body of any Subsidiary of the Company to approve (or otherwise take any corporate or similar action with respect to) any financing (including the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3iii) the Company and its Subsidiary to take any action that would conflict with or violate its organizational or governance documents or any applicable Legal Requirements, or result in the contravention of, or that could reasonably be expected to result in a violation of breach of, Applicable Law or default under, any agreement to which loss of attorney-client privilege. No liability or obligation of the Company or its Subsidiary is a party.
(c) Subject to Affiliates or Representatives, under any applicable Legal Requirementscertificate, all non-public agreement, arrangement, document or other confidential information provided by the Company, its Subsidiary or any of their respective Representatives pursuant to this Agreement will be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Purchaser will be permitted to disclose such information to any Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties instrument relating to the Debt Financing and to any underwriters, initial purchasers or placement agents in connection with shall be effective until the Financing (and, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; or (ii) are subject to other confidentiality undertakings reasonably satisfactory to the Company and of which the Company is a beneficiary.
(d) If the Closing does not occur, promptly upon request by the Company, Parent will reimburse the Company for any documented and reasonable out-of-pocket costs and expenses (including attorneys’ fees) incurred by the Company or its Subsidiary in connection with the cooperation of the Company and its Subsidiary contemplated by this Section 6.16 (it being understood and agreed that the reimbursement set forth in this Section 6.16(d) shall not apply to any fees, costs, and expenses incurred by, or on behalf of, the Company, its Subsidiary or any of its Representatives in connection with its ordinary course financial reporting requirements or in the provision of data that, in each case, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding this Section 6.16).
(e) The Effective Time. Parent shall indemnify, defend indemnify and hold harmless the Company Entities and its Affiliates and their respective Representatives from and against any and all losses, damages, claims, interest, awards, judgments, penalties, costs and or expenses suffered or incurred by any of them in connection with the arrangement of the Debt Financing (including and any action taken information used in accordance with this Section 6.16) and costs and expenses incurred connection therewith, in defending against the foregoing, except each case other than to the extent such losses, damages, claims, costs or expenses arise any of the foregoing arises from the bad faith, gross negligence or willful misconduct of, or material breach of this Agreement by, the Company or any of its Affiliates. Any information provided by the Company, as finally determined by a court Company in connection with seeking the Debt Financing shall be prepared in good faith. Parent shall reimburse the Company for all of competent jurisdiction, its documented reasonable out-of-pocket costs and expenses in connection with this Section 7.05 on or from fraud on prior to the part Effective Time or promptly following the Effective Time or the termination of the Companythis Agreement.
Appears in 1 contract
Financing Cooperation. (a) Subject Prior to Section 6.16(b), prior to Closing or termination of this Agreementthe Effective Time, the Company Partnership Entities shall, and shall cause its their respective Subsidiaries and their respective Representatives to, use reasonable best efforts to reasonably cooperate with and reasonably assist Parent, at the Parent’s request, sole cost and expense, provide all cooperation that is reasonably necessary, proper or advisable in connection with arrangingany financing by Parent or any of its Subsidiaries in connection with the Transactions and the transactions contemplated by the LRR Agreement as may be reasonably requested by Parent or its Representatives. Without limiting the generality of the foregoing, obtaining the Partnership Entities shall, and syndicating any Financing shall cause their respective Subsidiaries and causing use commercially reasonable efforts to cause their respective Representatives to, (i) furnish, as promptly as practicable, the conditions report of the Partnership’s auditor on the most recently available audited consolidated financial statements of the Partnership and its Subsidiaries and use its commercially reasonable efforts to obtain the consent of such auditor to the use of such report in accordance with normal custom and practice, and use commercially reasonable efforts to cause such auditor to provide customary comfort letters (providing “negative assurance” comfort) and drafts thereof to the Financing Documents and any commitment letters entered into underwriters, administrative agent, lenders, initial purchasers or placement agents, as applicable, in connection with such Financing financing by Parent; (ii) use commercially reasonable efforts to furnish, as promptly as practicable, financial statements and other financial data of the Partnership as would be satisfied, including using required by Regulation S-X and Regulation S-K promulgated under the Securities Act for a registered public offering to consummate any offering(s) of securities contemplated by such financing; (iii) provide reasonable best efforts and customary assistance in (i) assisting with, and furnishing information for the purposes of, the preparation of customary prospectuses one or more confidential information memoranda, prospectuses, offering memoranda, private placement memoranda and other marketing and syndication materials (including any pro forma financial information the provision of authorization letters and any information required under Article 18(2a representation with respect to the presence or absence of material non-public information) of Commission Delegated Regulation (EU) 2019/980), offering documents, syndication documents and materialsreasonably requested by Parent, including bank information memoranda by making available, at reasonable times and private placement memorandaon reasonable advance notice, employees and advisors of the Partnership Entities; (iv) in a reasonable number of meetings, lender and investor presentations, rating agency materials due diligence sessions, drafting sessions and presentations road shows, in each case, upon reasonable advance notice and other customary marketing materials at mutually agreed times; (v) assisting Parent in connection with the Financing preparation and registration of (all such documents and materials, collectively, the “Marketing Documents”) (it being understood and agreed that the Marketing Documents shall include (or otherwise be subject tobut not executing) any customary exculpation languagepledge and security documents, currency or interest hedging arrangements, other definitive financing documents, or documents as the case may be, with respect to the Company, its Affiliates and their respective Representatives), (ii) furnishing to the Parent as promptly as reasonably practicable financial statements and operational information (including consolidated financial statements for interim periods up until the Closing Date) that can be prepared without undue burden with respect to the Company and its Subsidiary as is reasonably requested by Parent (or the “Required Information”), (iii) assisting in the preparation of schedules to collateral agreements by providing information of the Company Entities required to be made available on such schedules for purposes of the arrangement Financing Sources or consummation of the Financing, (iv) subject to any contractual agreement in effect, otherwise reasonably facilitating the pledging of collateral for in connection with the Financing, which shall financing of the Transactions and the transactions contemplated by the LRR Agreement (provided that such documents will not be required to be delivered or effective take effect until at or promptly following the Effective Time, (v) subject to any contractual agreement in effect, obtaining the Payoff Letter, and the related lien releases, and instruments of termination or discharge, as applicable, required pursuant to Section 6.12, in each case which shall provide that, if sufficient funds are received by the financing sources under the Credit Agreement in order to pay off in full all obligations (other than the Excluded Obligations) in connection therewith or secured thereby, such release, termination and/or discharge shall be effective, and ); (vi) furnishing Parent as promptly as reasonably practical using commercially reasonable efforts to ensure that any syndication efforts benefit from existing lending and investment banking relationships; and (and at least three (3vii) business days prior to the Closing Date) with providing all customary documentation and other information related to about the Company Partnership, the Partnership GP and its Subsidiary their respective Subsidiaries requested by Parent or the Financing Sources in connection with the financing of the Transactions and the transactions contemplated by the LRR Agreement and required by regulatory authorities under applicable “know your customer” sanctions and anti-money money-laundering rules and regulations, including the PATRIOT Act, ; provided that has been reasonably requested in writing by Parent or its Financing Sources at least ten (10x) business days prior to the Closing Date. The Company hereby consents to the use of its and its Subsidiary’s logos in connection with the Financing so long as such logos are used solely (i) in a manner that is not intended to or that is not reasonably likely to harm or disparage the Company or its Subsidiary or the reputation or goodwill none of the Company Partnership or its Subsidiary and (ii) solely in connection with a description of the Company, its business and products or the Merger.
(b) Notwithstanding the requirements of Section 6.16(a) or anything in this Agreement to the contrary, (i) neither the Company nor any of its Affiliates or their respective Representatives Subsidiaries shall be required to enter into, approve pay any commitment or perform (other fee or commit incur any other liability or obligation in connection with such financing or to enter into, approve take any action that would be prohibited by any applicable Law or perform) any certificate, document, agreementcause a default of, or instrumentbreach under, or otherwise violate any Partnership Material Agreement, in each case which will except for any payment, incurrence or action that is conditioned upon, and shall not take effect until, the Effective Time, (y) no obligations of the Partnership or any of its Subsidiaries under any certificate, opinion, contract, indenture or other document or instrument delivered pursuant to this Section 7.16 shall be effective until the Effective Time, and none of the Partnership or any of its Subsidiaries shall be required to take any action pursuant to this Section 7.16 under any certificate, opinion, contract, indenture or other document or instrument that is not contingent upon the Closing or that would be effective prior to the Effective Time, Time and (iiz) nothing herein none of the Partnership or its senior officers shall require cooperation contemplated thereby be required to the extent it engage in any action that would interfere unreasonably with the business or operations of the Company or any of its Affiliates or their respective Affiliates, (iii) none of the Company nor any of its Affiliates or their respective Representatives, will be required to (1) pay or commit to pay any commitment or other fee, (2) reimburse or incur any costs or expenses or incur any other liability (including any guarantee, indemnity or pledge) in connection with the Financing or the Marketing Documents prior to the Effective Time, (3) provide any financial data other than the Required Information, or (4) provide any legal opinion or reliance letters or any certificate (in the case of the Company or its Subsidiary that would be required to be delivered prior to the Effective Time), comfort letter or opinion of any of its Representatives, (iv) nothing herein will involve any binding commitment by the Company, any of its Affiliates or any of their respective Representatives which commitment is not conditioned on the Effective Time and does not terminate without liability to the Company, its Affiliates and their respective Representatives upon the termination of this Agreement, and (v) nothing herein will require the Company, any of its Affiliates or any of their respective Representatives to provide any information or take any action, the disclosure or taking of which would violate applicable Legal Requirements, any fiduciary duty, any Contract or obligation of confidentiality owing to a third party, or jeopardize the protection of the attorney-client privilege (or similar protections) held by the Company or any of its Affiliates; provided that, if the Company does not provide or cause its Representatives to provide such access or such information in reliance on the foregoing, then the Company shall (1) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1) any Representative of the Company or its Subsidiary to deliver any certificate or opinion or take any other action under this Section 6.16 that could reasonably be expected to result in personal liability to such Representative; (2) the Board of Directors (or any committee or subcommittee thereof) or the board of directors, managers, managing member or any similar controlling body of any Subsidiary of the Company to approve (or otherwise take any corporate or similar action with respect to) any financing (including the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) the Company Partnership and its Subsidiary to take any action that would conflict with or violate its organizational or governance documents or any applicable Legal Requirements, or result in the contravention of, or that could reasonably be expected to result in a violation of breach of, or default under, any agreement to which the Company or its Subsidiary is a party.
(c) Subject to any applicable Legal Requirements, all non-public or other confidential information provided by the Company, its Subsidiary or any of their respective Representatives pursuant to this Agreement will be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Purchaser will be permitted to disclose such information to any Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties to the Financing and to any underwriters, initial purchasers or placement agents in connection with the Financing (and, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; or (ii) are subject to other confidentiality undertakings reasonably satisfactory to the Company and of which the Company is a beneficiary.
(d) If the Closing does not occur, promptly upon request by the Company, Parent will reimburse the Company for any documented and reasonable out-of-pocket costs and expenses (including attorneys’ fees) incurred by the Company or its Subsidiary in connection with the cooperation of the Company and its Subsidiary contemplated by this Section 6.16 (it being understood and agreed that the reimbursement set forth in this Section 6.16(d) shall not apply to any fees, costs, and expenses incurred by, or on behalf of, the Company, its Subsidiary or any of its Representatives in connection with its ordinary course financial reporting requirements or in the provision of data that, in each case, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding this Section 6.16).
(e) The Subsidiaries. Parent shall indemnify, defend indemnify and hold harmless the Company Entities Partnership and its Subsidiaries, Partnership GP and their respective Representatives from and against any and all losses, damages, claims, interest, awards, judgments, penalties, costs and expenses losses or damages suffered or incurred by any of them in connection with the Financing arrangement of any financing by Parent or any of its Subsidiaries in connection with the Transactions and the transactions contemplated by the LRR Agreement and any information utilized in connection therewith except (including any action taken in accordance A) with this Section 6.16respect to information supplied by the Partnership, its Subsidiaries and Representatives specifically for inclusion or incorporation by reference therein and/or (B) and costs and expenses incurred in defending against the foregoing, except to the extent such losses, damages, claims, costs or expenses losses and damages arise from the willful breach of this Agreement by the Company, as finally determined by a court of competent jurisdiction, or from fraud on the part misconduct of the CompanyPartnership’s or any of its Subsidiaries’ Representatives.
Appears in 1 contract
Financing Cooperation. (ai) Subject to Section 6.16(b), prior to From the date hereof until the Closing Date or the earlier valid termination of this Agreement, in connection with the Debt Financing, the Company shallshall use commercially reasonable efforts to provide, and shall cause its Subsidiaries and their respective Representatives to, to use commercially reasonable best efforts to reasonably cooperate with provide, and reasonably assist Parentshall use its commercially reasonable efforts to cause its representatives (including members of senior management of the Company and its Subsidiaries), at the Parent’s requestincluding legal and accounting advisors, sole cost and expenseto use commercially reasonable efforts to provide, reasonable cooperation in connection with arrangingthe arrangement of the Debt Financing, obtaining as may be reasonably requested by Bxxxx and syndicating any Financing that is necessary and causing the conditions in the Financing Documents and any commitment letters entered into customary in connection with Bxxxx’s efforts to obtain the Debt Financing (provided that such Financing to be satisfiedrequested cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries) by using commercially reasonable efforts to: (A) participate in a reasonable number of meetings, including using reasonable best efforts rating agency presentations and due diligence sessions; (B) assist Buyer and its financing sources in (i) assisting with, and furnishing information for the purposes of, the preparation of customary prospectuses confidential information memoranda and lender, investor and rating agency presentations and provide financing sources customary authorization and representation letters with respect thereto (including provided that in no event shall the Company or any of its Subsidiaries or representatives be required to provide pro forma financial information information); and any information required under Article 18(2(C) of Commission Delegated Regulation (EU) 2019/980), offering documents, syndication documents and materials, including bank information memoranda and private placement memoranda, lender and investor presentations, rating agency materials and presentations and other customary marketing materials in connection with the Financing (all such documents and materials, collectively, the “Marketing Documents”) (it being understood and agreed that the Marketing Documents shall include (or otherwise be subject to) any customary exculpation language, as the case may be, with respect to the Company, its Affiliates and their respective Representatives), (ii) furnishing to the Parent as promptly as reasonably practicable financial statements and operational information (including consolidated financial statements for interim periods up until the Closing Date) that can be prepared without undue burden with respect to the Company furnish Buyer and its Subsidiary as is reasonably requested by Parent (the “Required Information”), (iii) assisting in the preparation of schedules to collateral agreements by providing information of the Company Entities required to be made available on such schedules for purposes of the arrangement or consummation of the Financing, (iv) subject to any contractual agreement in effect, facilitating the pledging of collateral for the Financing, which shall not be required to be delivered or effective until at or promptly following the Effective Time, (v) subject to any contractual agreement in effect, obtaining the Payoff Letterfinancing sources promptly, and the related lien releases, and instruments of termination or discharge, as applicable, required pursuant to Section 6.12, in each case which shall provide that, if sufficient funds are received by the financing sources under the Credit Agreement in order to pay off in full all obligations (other than the Excluded Obligations) in connection therewith or secured thereby, such release, termination and/or discharge shall be effective, and (vi) furnishing Parent as promptly as reasonably practical (and any event at least three (3) business days Business Days prior to the Closing Date) , with all documentation and other information related to the Company and its Subsidiary required by regulatory authorities any Governmental Authority with respect to any Debt Financing under applicable “know your customer” and anti-money laundering rules and regulations, including in each case, to the PATRIOT Act, extent that such documentation and information has been reasonably requested in writing by Parent or its Financing Sources at least ten (10) business days Business Days prior to the Closing Date; provided that neither the Company nor any of its Affiliates shall be required to pay any commitment or other similar fee or incur any other Liability in connection with the Debt Financing prior to the Closing. The Company hereby consents to the use of its and its Subsidiary’s Subsidiaries’ logos in connection with the Financing so long as Debt Financing; provided that such logos are used solely (i) in a manner that is not intended to to, or that is not reasonably likely to to, harm or disparage the Company or its Subsidiary any of the Subsidiaries or the reputation or goodwill of the Company or any of its Subsidiary and Subsidiaries.
(ii) solely in connection with a description Buyer shall, promptly upon the request of the Company, its business and products or the Merger.
(b) Notwithstanding the requirements of Section 6.16(a) or anything in this Agreement to the contrary, (i) neither reimburse the Company nor for all reasonable and documented out-of-pocket third-party costs incurred by the Company or any of its Subsidiaries or representatives in connection with cooperation provided under in Section 7.08(e)(i) (such reimbursement to be made within three Business Days of delivery of the Company’s request therefor or, if sooner, at the Closing (which may be effected through an increase in the Cash Amount)) and shall indemnify and hold harmless the Company and its Affiliates and representatives from and against any and all Liabilities suffered or their respective Representatives shall be required to enter into, approve or perform (or commit to enter into, approve or perform) any certificate, document, agreement, or instrument, incurred by them in each case which will be effective prior to the Effective Time, (ii) nothing herein shall require cooperation contemplated thereby to the extent it would interfere unreasonably connection with the business or operations arrangement of the Debt Financing, including cooperation provided under in Section 7.08(e)(i), and any information utilized in connection therewith (other than the Financial Statements). All information regarding the Company or any of its Affiliates or their respective Affiliatesobtained by Buyer, (iii) none of the Company nor any of its Affiliates or their respective Representatives, will be required to (1) pay or commit to pay any commitment or other fee, (2) reimburse or incur any costs or expenses or incur any other liability (including any guarantee, indemnity or pledge) in connection with the Financing or the Marketing Documents prior to the Effective Time, (3) provide any financial data other than the Required Information, or (4) provide any legal opinion or reliance letters or any certificate (in the case of the Company or its Subsidiary that would be required to be delivered prior to the Effective Time), comfort letter or opinion of any of its Representatives, (iv) nothing herein will involve any binding commitment by the CompanyLender, any of its Affiliates financing source or any of their respective Representatives which commitment is not conditioned on the Effective Time and does not terminate without liability to the Company, its Affiliates and their respective Representatives upon the termination of this Agreement, and (v) nothing herein will require the Company, any of its Affiliates or any of their respective Representatives to provide any information or take any action, the disclosure or taking of which would violate applicable Legal Requirements, any fiduciary duty, any Contract or obligation of confidentiality owing to a third party, or jeopardize the protection of the attorney-client privilege (or similar protections) held by the Company or any of its Affiliates; provided that, if the Company does not provide or cause its Representatives to provide such access or such information in reliance on the foregoing, then the Company shall (1) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1) any Representative of the Company or its Subsidiary to deliver any certificate or opinion or take any other action under this Section 6.16 that could reasonably be expected to result in personal liability to such Representative; (2) the Board of Directors (or any committee or subcommittee thereof) or the board of directors, managers, managing member or any similar controlling body of any Subsidiary of the Company to approve (or otherwise take any corporate or similar action with respect to) any financing (including the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) the Company and its Subsidiary to take any action that would conflict with or violate its organizational or governance documents or any applicable Legal Requirements, or result in the contravention of, or that could reasonably be expected to result in a violation of breach of, or default under, any agreement to which the Company or its Subsidiary is a party.
(c) Subject to any applicable Legal Requirements, all non-public or other confidential information provided by the Company, its Subsidiary or any of their respective Representatives representatives pursuant to this Agreement will Section 7.08(e) shall be kept confidential in accordance with the Confidentiality Agreement, except that Parent Agreement and Purchaser will be permitted to disclose such information to any Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties to the Financing and to any underwriters, initial purchasers or placement agents in connection with the Financing (and, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; or (ii) are subject to other confidentiality undertakings reasonably satisfactory to the Company and of which the Company is a beneficiarySection 7.06.
(d) If the Closing does not occur, promptly upon request by the Company, Parent will reimburse the Company for any documented and reasonable out-of-pocket costs and expenses (including attorneys’ fees) incurred by the Company or its Subsidiary in connection with the cooperation of the Company and its Subsidiary contemplated by this Section 6.16 (it being understood and agreed that the reimbursement set forth in this Section 6.16(d) shall not apply to any fees, costs, and expenses incurred by, or on behalf of, the Company, its Subsidiary or any of its Representatives in connection with its ordinary course financial reporting requirements or in the provision of data that, in each case, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding this Section 6.16).
(e) The Parent shall indemnify, defend and hold harmless the Company Entities and their respective Representatives from and against any and all losses, damages, claims, interest, awards, judgments, penalties, costs and expenses suffered or incurred by any of them in connection with the Financing (including any action taken in accordance with this Section 6.16) and costs and expenses incurred in defending against the foregoing, except to the extent such losses, damages, claims, costs or expenses arise from the willful breach of this Agreement by the Company, as finally determined by a court of competent jurisdiction, or from fraud on the part of the Company.
Appears in 1 contract
Samples: Stock Purchase Agreement (TELUS International (Cda) Inc.)
Financing Cooperation. (a) Subject 6.11.1 Prior to the Effective Time and subject to Section 6.16(b), prior to Closing or termination of this Agreement6.11.2, the Company shall, shall use its reasonable best efforts to and shall cause its Subsidiaries and shall use reasonable best efforts to cause their respective Representatives to, use reasonable best efforts to reasonably cooperate with and reasonably assist Parentprovide all cooperation that is necessary, at the Parent’s request, sole cost and expense, proper or advisable in connection with arranging, obtaining Parent’s and syndicating any Merger Sub’s Financing and causing to the conditions extent customarily provided by companies in the Financing Documents and any commitment letters entered into in connection with such Financing to Company’s position for financings of the type contemplated by the Financing, as may be satisfiedreasonably requested by Parent, US HoldCo or Merger Sub, including using reasonable best efforts in to:
(i) assisting withmake senior management and advisors (including financial advisors, counsel and auditors) of the Company and its Subsidiaries available to participate in a reasonable number of meetings, presentations, road shows and due diligence sessions with proposed lenders or agents or investors with respect to the Financing, and furnishing information for in sessions with rating agencies or other syndication activities, all at reasonable times and locations to be mutually agreed (acting reasonably) and upon reasonable notice;
(ii) provide reasonable access by Parent and any proposed lenders or agents, and their respective officers, employees, consultants and advisors (including legal, valuation and accounting advisors), to the purposes ofbooks and records, properties, Company Employees and Representatives and assist with due diligence activities relating to the Company’s and its Subsidiaries’ financial information, all at reasonable times and locations to be mutually agreed (acting reasonably) and upon reasonable notice;
(iii) assist with the preparation of customary prospectuses (including any pro forma information memoranda, preliminary and final offering memoranda or prospectuses, registration statements, financial information and any information required under Article 18(2) of Commission Delegated Regulation (EU) 2019/980), offering documents, syndication documents and materialsother materials to be used in connection with the Financing, including bank promptly furnishing any additional customary information memoranda as Parent reasonably requests in order to prepare such materials;
(iv) assist with the preparation of and, subject to the occurrence of the Effective Time, execute and private placement memorandadeliver any documentation as may be reasonably requested by Parent, lender and investor presentations, rating agency materials and presentations and other customary marketing materials US HoldCo or Merger Sub in connection with the Financing (all such including the assumption of any existing Indebtedness of the Company or its Subsidiaries) and otherwise facilitate and, as necessary, obtain surveys and title insurance as reasonably requested by Parent, US HoldCo or Merger Sub;
(v) provide customary representation and authorization letters to the Financing Sources authorizing the distribution of Company information in documents and materialsprovided to prospective lenders for the purposes of the Financing, collectivelyincluding the syndication of the Facilities Agreement, which shall contain customary representations to the “Marketing Documents”) (it being understood and agreed Financing Sources that the Marketing Documents shall include information provided by the Company (x) does not contain a material misstatement or otherwise be subject toomission such that the statements made, in light of the circumstances under which they were made, are misleading, and (y) any customary exculpation language, as the case may be, with respect to information to be included in public side versions of such documents, if any, does not include material non-public information about the Company, Company or its Affiliates Subsidiaries;
(vi) request and their respective Representativescooperate in obtaining customary Lien terminations and/or releases and instruments of discharge (including payoff documentation), relating to (iiin each case) furnishing to the Parent as promptly as reasonably practicable financial statements and operational information (including consolidated financial statements for interim periods up until the Closing Date) that can be prepared without undue burden with respect to any Indebtedness of the Company and its Subsidiary Subsidiaries;
(vii) provide information necessary for Parent to prepare pro forma financial information and pro forma financial statements and other materials for rating agency presentations, bank information memoranda, business projections, private placement memoranda, presentations and similar documents used in connection with the Financing;
(viii) assist in procuring any necessary rating agency ratings or approvals and participate in a reasonable number of sessions with rating agencies, all at reasonable times and location to be mutually determined (acting reasonably) and upon reasonable notice;
(ix) request that its independent accountants and former independent accountants provide reasonable assistance and cooperation to Parent, US HoldCo or Merger Sub, including by requesting that they participate in due diligence sessions, assisting in the preparation of any pro forma financial statements to be included in the materials relating to the Financing and provide consent for the use of their audit reports relating to the Company in materials relating to the Financing, all as reasonably requested by Parent;
(x) furnish to Parent and its Financing Sources as promptly as practicable (A) all financial statements of the Company and its Subsidiaries that are necessary to satisfy any applicable condition set forth in the documents used in connection with the Financing, including the Facilities Agreement, (B) the financial information of the Company and its Subsidiaries necessary for Parent to prepare any pro forma financial statements for the historical periods required by the documents used in connection with the Financing, including the Facilities Agreement, as are customarily included (which shall also include providing cooperation that is reasonably requested by Parent (in its preparation of such pro forma financial statements or any related pro forma adjustments or, without limitation of the “Required Information”cooperation required by Section 6.18.3, any conversion or reconciliation of Company Financial Statements), and (iiiC) assisting such other financial and other pertinent information regarding the Company and its Subsidiaries (including information regarding the business, operations and financial projections thereof) as may be reasonably requested by Parent, US HoldCo or Merger Sub and customarily provided for financings of the type contemplated by the Facilities Agreement to assist in the preparation of schedules to collateral agreements by providing a customary confidential information memorandum or other customary information documents used in financings (or the syndication of financings), including of the Company Entities required type contemplated by the Facilities Agreement;
(xi) furnish to be made available on such schedules for purposes of Parent and its Financing Sources, at least five Business Days prior to the arrangement or consummation of the Financing, (iv) subject to any contractual agreement in effect, facilitating the pledging of collateral for the Financing, which shall not be required to be delivered or effective until at or promptly following the anticipated Effective Time, (v) subject to any contractual agreement in effect, obtaining the Payoff Letter, and the related lien releases, and instruments of termination or discharge, as applicable, required pursuant to Section 6.12, in each case which shall provide that, if sufficient funds are received by the financing sources under the Credit Agreement in order to pay off in full all obligations (other than the Excluded Obligations) in connection therewith or secured thereby, such release, termination and/or discharge shall be effective, and (vi) furnishing Parent as promptly as reasonably practical (and at least three (3) business days prior to the Closing Date) with all documentation and other information related to about the Company and its Subsidiary Subsidiaries required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, regulations (including the PATRIOT Patriot Act, that has been reasonably ) to the extent requested in writing by Parent or its Financing Sources at least ten (10) business calendar days prior to the Closing Dateanticipated Effective Time, as required to be delivered pursuant to the Facilities Agreement or that is otherwise necessary to satisfy the conditions thereof; and
(xii) subject to the occurrence of the Effective Time, taking all corporate actions necessary to permit consummation of the Financing as may be reasonably requested by Parent, US HoldCo or Merger Sub. The Company hereby consents to the use of its and its Subsidiary’s Subsidiaries’ logos in connection with the Financing so long as (including in respect of the syndication of the Facilities Agreement); provided that such logos are used solely (i) in a manner that is not intended to or that is not reasonably likely to harm or disparage the Company or any of its Subsidiary Subsidiaries or the reputation or goodwill of the Company or any of its Subsidiary Subsidiaries or any of their logos and (ii) solely on such other customary terms and conditions as the Company shall reasonably impose. It is understood by the Parties that information provided by the Company pursuant to Section 6.11.1 may be disclosed to prospective lenders and investors in connection with the syndication and marketing of the Financing, in each case subject to confidentiality undertakings from such prospective lenders and investors customary for a description syndication process and subject to customary acknowledgements from such lenders and investors as to the receipt of material non-public information in compliance with Applicable Law (to the extent material non-public information is disclosed), and that such disclosure shall not be restricted by the existing Confidentiality Agreement between the parties.
6.11.2 Notwithstanding anything in this Section 6.11 to the contrary, in fulfilling its obligations pursuant to this Section 6.11, (i) nothing in this Section 6.11 shall require cooperation to the extent that it would (A) unreasonably interfere with the ongoing business or operations of the Company or its Subsidiaries, (B) cause the Company or its Subsidiaries to incur Liability in connection with the Financing prior to the Effective Time (other than in connection with customary representation and authorization letters and other than such Liabilities that Parent commits to reimburse), (C) cause any director, officer or employee of the Company or its Subsidiaries to incur any personal liability, (D) in the reasonable judgment of the Company after consultation with its outside legal counsel, (x) result in the material contravention of, or a default under, any Applicable Laws or under any Company Material Contract or (y) require the Company to provide access to or disclose information that the Company determines would result in a loss or waiver of attorney-client privilege of the Company or its Subsidiaries (in each case it being agreed that the Company shall give notice to Parent of the fact that it is withholding such information or documents pursuant to this clause (D), and thereafter the Company and Parent shall reasonably cooperate to endeavor to cause such information to be provided in a manner that would not reasonably be expected to violate the applicable restriction or waive the applicable privilege or protection), or (E) require the Company to prepare separate financial statements for any Subsidiary of the Company, its business and products (ii) none of the board of directors (or the Merger.
(bequivalent bodies) Notwithstanding the requirements of Section 6.16(a) or anything in this Agreement to the contrary, (i) neither the Company nor any of and its Affiliates or their respective Representatives Subsidiaries shall be required to enter into, approve pass any resolution or perform (or commit to enter into, approve or perform) take any certificate, document, agreement, or instrument, in each case which will be similar actions approving the Financing that are effective prior to the Effective Time, (ii) nothing herein shall require cooperation contemplated thereby to the extent it would interfere unreasonably with the business or operations of the Company or any of its Affiliates or their respective Affiliates, and (iii) none of the Company nor any of Company, its Affiliates Subsidiaries or their respective Representatives, will its Representatives shall be required to (1) pay or commit to pay any commitment arrangement or underwriting or other fee, (2) reimburse fee or incur provide any costs or expenses security or incur any other liability (including any guarantee, indemnity or pledge) Liability in connection with the any Financing or the Marketing Documents prior to the Effective Time, (3) provide any financial data other than the Required Information, or (4) provide any legal opinion or reliance letters or any certificate (in the case of . Parent shall reimburse the Company or its Subsidiary that would be required to be delivered prior to the Effective Time), comfort letter or opinion of any of its Representatives, (iv) nothing herein will involve any binding commitment by the Company, any of its Affiliates or any of their respective Representatives which commitment is not conditioned on the Effective Time for all reasonable and does not terminate without liability to the Company, its Affiliates and their respective Representatives upon the termination of this Agreement, and (v) nothing herein will require the Company, any of its Affiliates or any of their respective Representatives to provide any information or take any action, the disclosure or taking of which would violate applicable Legal Requirements, any fiduciary duty, any Contract or obligation of confidentiality owing to a third party, or jeopardize the protection of the attorneydocumented out-client privilege (or similar protections) held of-pocket costs incurred by the Company or any of its Affiliates; provided that, if the Company does not provide or cause Subsidiaries in connection with fulfilling its Representatives to provide such access or such information in reliance on the foregoing, then the Company shall (1) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1) any Representative of the Company or its Subsidiary to deliver any certificate or opinion or take any other action under this Section 6.16 that could reasonably be expected to result in personal liability to such Representative; (2) the Board of Directors (or any committee or subcommittee thereof) or the board of directors, managers, managing member or any similar controlling body of any Subsidiary of the Company to approve (or otherwise take any corporate or similar action with respect to) any financing (including the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) the Company and its Subsidiary to take any action that would conflict with or violate its organizational or governance documents or any applicable Legal Requirements, or result in the contravention of, or that could reasonably be expected to result in a violation of breach of, or default under, any agreement to which the Company or its Subsidiary is a party.
(c) Subject to any applicable Legal Requirements, all non-public or other confidential information provided by the Company, its Subsidiary or any of their respective Representatives obligations pursuant to this Agreement will be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Purchaser will be permitted to disclose such information to any Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties to the Financing and to any underwriters, initial purchasers or placement agents in connection with the Financing (and, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; or (ii) are subject to other confidentiality undertakings reasonably satisfactory to the Company and of which the Company is a beneficiary.
(d) If the Closing does not occur, promptly upon request by the Company, Parent will reimburse the Company for any documented and reasonable out-of-pocket costs and expenses Section 6.11 (including reasonable attorneys’ fees) incurred by , but excluding, for the Company or its Subsidiary in connection with avoidance of doubt, the cooperation costs of the Company and its Subsidiary contemplated by this Section 6.16 (it being understood and agreed that the reimbursement set forth in this Section 6.16(d) shall not apply to preparation of any fees, costs, and expenses incurred by, annual or on behalf of, the Company, its Subsidiary or any of its Representatives in connection with its ordinary course quarterly financial reporting requirements or in the provision of data that, in each case, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding this Section 6.16statements).
(e) The . Parent shall indemnify, defend indemnify and hold harmless the Company Entities and its Subsidiaries (and their respective Representatives Representatives) from and against any and all losses, damages, claims, interest, awards, judgments, penalties, costs and or expenses actually suffered or incurred by any of them in connection with the Financing and any other financing or refinancing transactions undertaken by Parent or its Subsidiaries in connection with the Merger (including any action taken in accordance with this Section 6.16) and costs and expenses incurred in defending against the foregoing, except other than to the extent resulting from information provided to Parent in writing by the Company or its Subsidiaries), except in the event such losses, damages, claims, costs loss or expenses arise damage arises out of or results from the gross negligence, willful misconduct or bad faith by the Company or its Subsidiaries in fulfilling their obligations pursuant to this Section 6.11 or Section 6.12, or a material breach of this Agreement by the Company, as finally determined by a court of competent jurisdiction, or from fraud on the part of the Company.
Appears in 1 contract
Financing Cooperation. (a) Subject Prior to Section 6.16(b), prior to Closing or termination of this Agreementthe Closing, the Company shall, and shall cause its the Company’s Subsidiaries to, promptly provide the Required Information. From and after the date of this Agreement until the Closing Date (or, if earlier, the termination of this Agreement), the Company will, and will cause each of the Subsidiaries and its and their respective Representatives to, use its reasonable best efforts to reasonably cooperate with and reasonably assist Parentprovide, at the ParentPurchaser’s request, sole cost and expenseexpense (subject to the provisions of this Section 6.11), such cooperation as is reasonably requested by Purchaser in connection with arrangingthe Debt Financing, obtaining including with respect to the following:
(i) furnishing to Purchaser (or its Affiliates) and syndicating any the Debt Financing Sources, such historical financial information and other information that Purchaser (or its Affiliates) reasonably request in order to assist in arranging and/or to consummate the Debt Financing and causing is customary for Debt Financings of the conditions type contemplated by the Debt Commitment Letter, to the extent such information is readily available;
(ii) cooperating with Purchaser (or its Affiliates) in the preparation of, customary certificates and security documents required by the Debt Financing Documents Sources and any commitment letters the Definitive Debt Financing Agreements entered into in connection with such the Debt Financing to be satisfied, including using reasonable best efforts in (i) assisting with, and furnishing information for the purposes of, the preparation of customary prospectuses (including any pro forma financial information and any information required under Article 18(2) loan agreements, guarantees, collateral agreements, officer’s certificates, solvency certificates (which may be in the form of Commission Delegated Regulation (EU) 2019/980the solvency certificate attached as an exhibit to the Debt Commitment Letter), offering documents, syndication documents and materials, including bank information memoranda and private placement memoranda, lender and investor presentations, rating agency materials and presentations resolutions and other customary marketing materials documentation), in each case, to be held in escrow pending the Closing, with such signatures not effective until and conditioned upon the consummation of the Closing;
(iii) furnishing to Purchaser and the Debt Financing Sources customary information regarding the Company and the Subsidiaries as may be reasonably requested by Purchaser to consummate the Debt Financing to the extent such information exists and is reasonably available to Company and the Subsidiaries without undue burden or expense;
(iv) assisting in preparation for and participating (including making appropriate officers of the Company and the Subsidiaries available to participate) in a reasonable number of meetings or calls with providers or potential providers of the Debt Financing (which may, at the Company’s election, be limited to teleconference or virtual meeting platforms) upon reasonable advance notice and at a date, time and location to be mutually agreed;
(v) delivering notices of prepayment for the repayment in full of all Indebtedness (which notices may be conditioned on the occurrence of the Closing) required to be paid off at Closing and for which a prepayment notice is required;
(vi) taking all reasonably requested formal corporate or other organizational actions but only if the officers, directors, members, managers or similar Persons will remain in their respective or similar roles after the Closing, subject to the occurrence of the Closing;
(vii) cooperating in the replacement or backstop of any outstanding letters of credit issued for the account of the Company or its Subsidiaries;
(viii) assisting Purchaser with the Purchaser’s preparation of schedules to the Definitive Debt Financing Agreements as may be required in connection with the Financing (all such documents and materialsDebt Financing, collectivelyand, the “Marketing Documents”) (it being understood and agreed that the Marketing Documents shall include (or otherwise be subject to) any customary exculpation language, as the case may be, with respect to the Company, its Affiliates and their respective Representatives), (ii) furnishing to the Parent as promptly as reasonably practicable financial statements and operational information (including consolidated financial statements for interim periods up until the Closing Date) that can be prepared without undue burden with respect to the Company and its Subsidiary as is reasonably requested by Parent (the “Required Information”), (iii) assisting in the preparation of schedules to collateral agreements by providing information of the Company Entities required to be made available on such schedules for purposes of the arrangement or consummation of the Financing, (iv) subject to any contractual agreement in effectextent applicable, facilitating the pledging of, and granting of liens on, collateral for the Debt Financing, which shall not be including making reasonable arrangements to deliver possessory collateral (such as certificated equity and promissory notes) within its possession required by the Debt Financing Sources to be delivered or effective until at or promptly following after Closing to or at the Effective Timedirection of the Debt Financing Sources, (v) subject to any contractual agreement in effect, obtaining the Payoff Letter, and occurrence of the related lien releases, and instruments of termination or discharge, as applicable, required pursuant to Section 6.12, in each case which shall provide that, if sufficient funds are received by the financing sources under the Credit Agreement in order to pay off in full all obligations Closing; and
(other than the Excluded Obligationsix) in connection therewith or secured thereby, such release, termination and/or discharge shall be effective, and (vi) furnishing Parent as promptly as reasonably practical (and providing at least three (3) business days Business Days prior to the Closing Date) with Date all documentation and other information related to the Company and its Subsidiary requested by Purchaser as is required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT ActPatriot Act and the requirements of 31 C.F.R. §1010.230, to the extent requested by Purchaser or its Representatives at least nine (9) Business Days prior to the Closing; provided, however, that has been reasonably requested in writing by Parent notwithstanding the foregoing or anything else contained herein to the contrary, (x) no such cooperation shall be required to the extent it could (a) disrupt or interfere materially and unreasonably with the conduct of the Company’s or the Subsidiaries business, (b) require the Company, the Subsidiaries or its or their respective Representatives to pay or incur any costs, fees and expenses or incur or assume any other Obligation prior to the Closing other than as are expressly reimbursable or payable by the Purchaser and for which it is promptly reimbursed (subject to the limitations on reimbursement set forth in Section 6.11(b) below), (c) require any director, officer or employee or other Representative of the Company or the Subsidiaries to deliver, or be required to deliver, any certificate or other document or take any action, in each case, that could result in any personal liability, (d) require the Company or its Affiliates to produce carve-out audits, (e) require the Company, the Subsidiaries or its or their respective Representatives to provide any information or cooperation that would reasonably be expected to (i) result in the loss of attorney-client privilege or rights under the attorney work product doctrine, (ii) breach or violate any applicable Law, or (iii) violate any confidentiality obligation with respect to such information, (f) require the Company, the Subsidiaries or its or their respective Representatives to take any action that would result in the material contravention of any material agreement to which the Company or any of its Subsidiaries is a party as of the date hereof, (g) require the Company, the Subsidiaries or its or their respective Representatives to prepare or deliver any pro forma financial information, (h) require the Company, the Subsidiaries or its or their respective Representatives to take any action to authorize or adopt any formal corporate or similar action with respect to the Debt Financing Sources at least ten that are not contingent on the Closing or would be effective prior to the Closing, or (10i) business days materially and unreasonably interfere with or adversely affect any commercial relationships with customers or other parties, and (y) notwithstanding any other provision set forth herein, nothing herein shall require the Company, the Subsidiaries or its or their respective Representatives to deliver any legal opinion.
(b) Purchaser shall indemnify, defend and hold harmless the Company, the Subsidiaries and its and their respective Representatives from and against any and all losses, damages, claims, liabilities, costs, fees and expenses suffered or incurred by them in connection with the provision of assistance in connection with the Debt Financing or any other financing by Purchaser or any of its Affiliates (including the arrangement thereof) and, in each case, any information used in connection therewith, except any such losses, damages, claims costs, fees and expenses arising out of the bad faith, gross negligence, willful misconduct or any Fraud by any of the Company, the Subsidiaries or its or their respective Representatives. The Purchaser shall promptly, upon request, reimburse the Company, the Subsidiaries and its and their respective Representatives for all reasonable and documented out-of-pocket costs incurred by the Company, the Subsidiaries or its or their respective Representatives in connection with any assistance provided in connection with the Debt Financing or any other financing by Purchaser or any of their Affiliates (including the arrangement thereof) (including reasonable and documented out-of-pocket auditor’s and attorneys’ fees and expenses), in each case, other than: (A) any ordinary course amounts payable to employees of, or consultants to, the Company and its Subsidiaries with respect to services provided prior to the Closing Date. , (B) any amounts incurred in connection with the Debt Payoff Letter, (C) any other amounts that would have been incurred in connection with the transactions contemplated hereby regardless of the Debt Financing (including, for the avoidance of doubt, with respect to the preparation of historical financial statements required by this Agreement), and (D) de minimis expenses.
(c) The Company hereby consents to the use of its the Company’s and its Subsidiary’s the Subsidiaries’ logos in connection with the Financing so long as Debt Financing; provided that such logos are shall be used (x) solely (i) in a manner that is not intended to or that is not reasonably likely to harm or disparage the Company or its Subsidiary the Subsidiaries or the reputation or goodwill of the Company or its Subsidiary and (iiy) solely in connection with a description of any manner as consented to by the Company, its business and products or the Merger.
(bd) Notwithstanding the requirements of Section 6.16(a) or anything in this Agreement to the contrary, (i) neither the Company nor any of its Affiliates or their respective Representatives shall be required to enter into, approve or perform (or commit to enter into, approve or perform) any certificate, document, agreement, or instrument, in each case which will be effective prior to the Effective Time, (ii) nothing herein shall require cooperation contemplated thereby to the extent it would interfere unreasonably with the business or operations of the Company or any of its Affiliates or their respective Affiliates, (iii) none of the Company nor any of its Affiliates or their respective Representatives, will be required to (1) pay or commit to pay any commitment or other fee, (2) reimburse or incur any costs or expenses or incur any other liability (including any guarantee, indemnity or pledge) in connection with the Financing or the Marketing Documents prior to the Effective Time, (3) provide any financial data other than the Required Information, or (4) provide any legal opinion or reliance letters or any certificate (in the case of the Company or its Subsidiary that would be required to be delivered prior to the Effective Time), comfort letter or opinion of any of its Representatives, (iv) nothing herein will involve any binding commitment by the Company, any of its Affiliates or any of their respective Representatives which commitment is not conditioned on the Effective Time and does not terminate without liability to the Company, its Affiliates and their respective Representatives upon the termination of this Agreement, and (v) nothing herein will require the Company, any of its Affiliates or any of their respective Representatives to provide any information or take any action, the disclosure or taking of which would violate applicable Legal Requirements, any fiduciary duty, any Contract or obligation of confidentiality owing to a third party, or jeopardize the protection of the attorney-client privilege (or similar protections) held by the Company or any of its Affiliates; provided that, if the Company does not provide or cause its Representatives to provide such access or such information in reliance on the foregoing, then the Company shall (1) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1) any Representative of the Company or its Subsidiary to deliver any certificate or opinion or take any other action under this Section 6.16 that could reasonably be expected to result in personal liability to such Representative; (2) the Board of Directors (or any committee or subcommittee thereof) or the board of directors, managers, managing member or any similar controlling body of any Subsidiary of the Company to approve (or otherwise take any corporate or similar action with respect to) any financing (including the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) the Company and its Subsidiary to take any action that would conflict with or violate its organizational or governance documents or any applicable Legal Requirements, or result in the contravention of, or that could reasonably be expected to result in a violation of breach of, or default under, any agreement to which the Company or its Subsidiary is a party.
(c) Subject to any applicable Legal Requirements, all non-public or other All confidential information provided by the Company, the Subsidiaries or its Subsidiary or their Representatives in connection with the provision of assistance in connection with the Debt Financing or any other financing by Purchaser or any of their respective Representatives pursuant to this Agreement will its Affiliates shall be kept confidential in accordance with the Confidentiality Agreement, except that Parent and notwithstanding anything herein or in the Confidentiality Agreements to the contrary, Purchaser will shall be permitted to disclose such any confidential information provided pursuant to this Section 6.11 to any actual or bona fide prospective Debt Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties to the Financing and to any underwriters, initial purchasers or placement agents in connection with the Debt Financing (and, in each case, to their respective counsel and auditors) so long as such Persons (ix) agree to be bound by the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; thereto or (iiy) are subject to other confidentiality undertakings reasonably satisfactory to the Company and of which the Company is a beneficiary.
(d) If the Closing does not occur, promptly upon request by the Company, Parent will reimburse the Company for any documented and reasonable out-of-pocket costs and expenses (including attorneys’ fees) incurred by the Company or its Subsidiary in connection with the cooperation of the Company and its Subsidiary contemplated by this Section 6.16 (it being understood and agreed that the reimbursement set forth in this Section 6.16(d) shall not apply to any fees, costs, and expenses incurred by, or on behalf of, the Company, its Subsidiary or any of its Representatives in connection with its ordinary course financial reporting requirements or in the provision of data that, in each case, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding this Section 6.16).
(e) The Parent Company shall indemnify, defend and hold harmless the Company Entities and their respective Representatives from and against any and all losses, damages, claims, interest, awards, judgments, penalties, costs and expenses suffered or incurred by any of them in connection be deemed to have complied with the Financing (including any action taken in accordance with its obligations under this Section 6.16) and costs and expenses incurred in defending against the foregoing, except 6.11 to the extent such losses, damages, claims, costs or expenses arise from it has acted in good faith in attempting to satisfy its obligations under this Section 6.11 unless the willful Company’s breach of its obligations under this Agreement by Section 6.11 is the Company, as finally determined by a court of competent jurisdiction, or from fraud on the part direct and proximate cause of the CompanyDebt Financing not being available to Purchaser.
Appears in 1 contract
Samples: Merger Agreement (Compass Group Diversified Holdings LLC)
Financing Cooperation. (a) Subject During the period commencing with the execution and delivery of this Agreement and continuing until the earlier to Section 6.16(b), prior to Closing or occur of the termination of this AgreementAgreement pursuant to Article VIII and the Effective Time, the Company shall, and shall cause its Subsidiaries and their respective the Company’s and its Subsidiaries’ Representatives to, at Parent’s sole expense, reasonably cooperate in connection with the arrangement of the Financing as may be reasonably requested by Parent (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries). Such cooperation by the Company shall include, at the reasonable request of Parent:
(i) agreeing to enter into such agreements, and to use its reasonable best efforts to reasonably cooperate with deliver such officer’s certificates, as are customary in financings of such type and reasonably assist Parent, at the Parent’s request, sole cost and expenseas are, in connection with arrangingthe good faith determination of the persons executing such officer’s certificates, obtaining accurate, and syndicating any agreeing to pledge, grant security interests in, and otherwise grant liens on, the Company’s and its material Subsidiaries’ assets pursuant to such agreements as may be reasonably requested;
(ii) providing to the Lender financial and other information relevant to the Financing and causing the conditions in the Financing Documents Company’s or its Subsidiaries’ possession or that is reasonably available or that the Company or its Subsidiaries prior to the date hereof in the ordinary course of business would have produced (and any commitment letters entered into in connection accordance with the timeframe in which such Financing to information would have been produced) (including audited and unaudited financial statements as of and for periods both before and after the date hereof, provided that such financial statements shall be satisfiedprovided in a manner as is consistent with the Company’s existing practices), including using reasonable best efforts assisting in (i) assisting with, and furnishing information for the purposes of, the preparation of customary prospectuses (including any pro forma financial information or projections, making the Company’s and any information required under Article 18(2) its Subsidiaries’ senior officers available at reasonable times and for a reasonable number of Commission Delegated Regulation meetings to assist the Lender (EU) 2019/980including by way of participation in meetings, presentations, marketing sessions and due diligence sessions), offering documents, syndication documents and materials, including bank information memoranda and private placement memoranda, lender and investor presentations, rating agency materials and presentations and other customary marketing materials otherwise reasonably cooperating in connection with the Financing (all such documents and materials, collectively, the “Marketing Documents”) (it being understood and agreed that the Marketing Documents shall include (or otherwise be subject to) any customary exculpation language, as the case may be, with respect to the Company, its Affiliates and their respective Representatives), (ii) furnishing to the Parent as promptly as reasonably practicable financial statements and operational information (including consolidated financial statements for interim periods up until the Closing Date) that can be prepared without undue burden with respect to the Company and its Subsidiary as is reasonably requested by Parent (the “Required Information”), (iii) assisting in the preparation of schedules to collateral agreements by providing information of the Company Entities required to be made available on such schedules for purposes of the arrangement or consummation of the Financing;
(iii) using reasonable best efforts to obtain from the Company’s and its Subsidiaries’ accounting firm accountants’ comfort letters and consents customary for debt financings, (iv) subject to any contractual agreement in effect, facilitating the pledging of collateral and assisting Parent and its counsel with information required for the Financing, which shall not be customary legal opinions required to be delivered or effective until at or promptly following the Effective Time, (v) subject to any contractual agreement in effect, obtaining the Payoff Letter, and the related lien releases, and instruments of termination or discharge, as applicable, required pursuant to Section 6.12, in each case which shall provide that, if sufficient funds are received by the financing sources under the Credit Agreement in order to pay off in full all obligations (other than the Excluded Obligations) in connection therewith or secured thereby, such release, termination and/or discharge shall be effective, and cooperating in obtaining any necessary valuations;
(viiv) furnishing Parent as promptly as reasonably practical (and at least three (3) business days prior to the Closing Date) with all documentation and other information related to about the Company and its Subsidiary Subsidiaries that the potential financing sources have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations;
(v) taking all corporate, including limited liability company, partnership or other similar actions by the PATRIOT Act, Company and its Subsidiaries that has been are reasonably requested in writing by necessary to permit the consummation of the necessary financing; and
(vi) using reasonable best efforts to cooperate with Parent or its to satisfy any conditions precedent to any the Financing Sources at least ten (10) business days prior to the Closing Date. The extent within the control of the Company hereby consents to the use of its and its Subsidiary’s logos Subsidiaries. Parent shall promptly reimburse the Company for any out-of-pocket expenses and costs reasonably incurred in connection with the Financing so long as such logos are used solely (i) in a manner that is not intended to or that is not reasonably likely to harm or disparage the Company Company’s or its Subsidiary or the reputation or goodwill of the Company or its Subsidiary and (ii) solely in connection with a description of the Company, its business and products or the MergerAffiliates’ obligations under this Section 6.16(a).
(b) Notwithstanding the requirements of Section 6.16(a) or anything in this Agreement to the contrary, :
(i) neither nothing in this Agreement shall require any cooperation to the extent that it would require the board of directors of the Company nor or any of its Affiliates Subsidiaries to take any action or their respective Representatives 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 prior to the Effective Time (for which the Company is not promptly reimbursed by Parent) or to approve the execution or delivery of any document or certificate in connection with the Financing (or any alternative financing);
(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 Financing and no counsel for the Company or any of its Subsidiaries shall be obligated to deliver any opinion in connection with the 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 and none of the Company or any of its Subsidiaries shall be required to enter into, approve or perform (or commit to enter into, approve or perform) take any action under any certificate, document, agreement, document or instrument, in each case which will 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, (ii) nothing herein shall require cooperation contemplated thereby to the extent it would interfere unreasonably with the business or operations of the Company or any of its Affiliates or their respective Affiliates, (iii) none of the Company nor any of its Affiliates or their respective Representatives, will be required to (1) pay or commit to pay any commitment or other fee, (2) reimburse or incur any costs or expenses or incur any other liability (including any guarantee, indemnity or pledge) in connection with the Financing or the Marketing Documents prior to the Effective Time, (3) provide any financial data other than the Required Information, or (4) provide any legal opinion or reliance letters or any certificate (in the case of the Company or its Subsidiary that would be required to be delivered prior to the Effective Time), comfort letter or opinion of any of its Representatives, (iv) nothing herein will involve any binding commitment by the Company, any of its Affiliates or any of their respective Representatives which commitment is not conditioned on the Effective Time and does not terminate without liability to the Company, its Affiliates and their respective Representatives upon the termination of this Agreement, and (v) nothing herein will require the Company, any of its Affiliates or any of their respective Representatives to provide any information or take any action, the disclosure or taking of which would violate applicable Legal Requirements, any fiduciary duty, any Contract or obligation of confidentiality owing to a third party, or jeopardize the protection of the attorney-client privilege (or similar protections) held by the Company or any of its Affiliates; provided that, if the Company does not provide or cause its Representatives to provide such access or such information in reliance on the foregoing, then the Company shall (1) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1) any Representative of the Company or its Subsidiary to deliver any certificate or opinion or take any other action under this Section 6.16 that could reasonably be expected to result in personal liability to such Representative; (2) the Board of Directors (or any committee or subcommittee thereof) or the board of directors, managers, managing member or any similar controlling body of any Subsidiary of the Company to approve (or otherwise take any corporate or similar action with respect to) any financing (including the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) the Company and its Subsidiary to take any action that would conflict with or violate its organizational or governance documents or any applicable Legal Requirements, or result in the contravention of, or that could reasonably be expected to result in a violation of breach of, or default under, any agreement to which the Company or its Subsidiary is a party.
(c) Subject to any applicable Legal Requirements, all non-public or other confidential information provided by the Company, its Subsidiary or any of their respective Representatives pursuant to this Agreement will be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Purchaser will be permitted to disclose such information to any Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties to the Financing and to any underwriters, initial purchasers or placement agents in connection with the Financing (and, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; or (ii) are subject to other confidentiality undertakings reasonably satisfactory to the Company and of which the Company is a beneficiary.
(d) If the Closing does not occur, promptly upon request by the Company, Parent will reimburse the Company for any documented and reasonable out-of-pocket costs and expenses (including attorneys’ fees) incurred by the Company or its Subsidiary in connection with the cooperation of the Company and its Subsidiary contemplated by this Section 6.16 (it being understood and agreed that the reimbursement set forth in this Section 6.16(d) shall not apply to any fees, costs, and expenses incurred by, or on behalf of, the Company, its Subsidiary or any of its Representatives in connection with its ordinary course financial reporting requirements or in the provision of data that, in each case, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding this Section 6.16).
(e) The Parent shall indemnify, defend and hold harmless the Company Entities and their respective Representatives from and against any and all losses, damages, claims, interest, awards, judgments, penalties, costs and expenses suffered or incurred by any of them in connection with the Financing (including any action taken in accordance with this Section 6.16) and costs and expenses incurred in defending against the foregoing, except to the extent such losses, damages, claims, costs or expenses arise from the willful breach of this Agreement by the Company, as finally determined by a court of competent jurisdiction, or from fraud on the part of the Company.
Appears in 1 contract
Financing Cooperation. The Company shall reasonably cooperate in connection with any financing to be obtained by Parent or any of its Affiliates in order to effect the transactions contemplated hereby as may be reasonably requested by Parent. Such cooperation by the Company and its subsidiaries and their Representatives shall include, at the reasonable request of Parent, (a) Subject to Section 6.16(b)participation in a reasonable number of meetings, prior to Closing or termination of this Agreementdrafting sessions, rating agency presentations and due diligence sessions, (b) furnishing Parent and its Representatives with all financial and other pertinent information regarding the Company shall, and shall cause or any of its Subsidiaries and their respective Representatives to, use reasonable best efforts to as may be reasonably cooperate with and reasonably assist requested by Parent, at the Parent’s request, sole cost (c) reasonably assisting Parent and expense, in connection with arranging, obtaining and syndicating any Financing and causing the conditions in the Financing Documents and any commitment letters entered into in connection with such Financing to be satisfied, including using reasonable best efforts in (i) assisting with, and furnishing information its sources of financing for the purposes of, transactions contemplated hereby (the “Financing Sources”) in the preparation of customary prospectuses (including any pro forma financial information offering and any information required under Article 18(2) of Commission Delegated Regulation (EU) 2019/980), offering documents, syndication documents and materials, including bank information memoranda and private placement memoranda, lender and investor rating agency presentations, rating agency materials and road show presentations and other customary marketing materials similar documents and materials, in connection with the Financing any financing (all such documents and materials, collectively, the “Marketing Financing Documents”), including providing customary authorization letters related thereto, (d) facilitating the execution and delivery at the Offer Closing of definitive documents related to any financing, (it being understood e) facilitating the pledging of collateral in connection with any financing, including executing and agreed that the Marketing Documents shall include (or otherwise be subject to) delivering any customary exculpation language, collateral documents and other customary certificates and documents as the case may be, with respect to the Company, its Affiliates and their respective Representatives), (ii) furnishing to the Parent as promptly as reasonably practicable financial statements and operational information (including consolidated financial statements for interim periods up until the Closing Date) that can be prepared without undue burden with respect to the Company and its Subsidiary as is reasonably requested by Parent (the “Required Information”), (iii) assisting in the preparation of schedules to collateral agreements by providing information provided that no obligations of the Company Entities required to or its Subsidiaries or its Representatives under any such documents or certificates shall be made available on such schedules for purposes of the arrangement or consummation of the Financing, (iv) subject to any contractual agreement in effect, facilitating the pledging of collateral for the Financing, which shall not be required to be delivered or effective unless and until at or promptly following the Effective Time, (v) subject to any contractual agreement in effect, obtaining the Payoff LetterTime occurs), and the related lien releases(f) using commercially reasonable efforts to obtain customary payoff letters, redemption notices, releases of liens and instruments of termination or discharge, as applicable, required pursuant to Section 6.12, in each case which shall provide that, if sufficient funds are received by the financing sources under the Credit Agreement in order to pay off in full all obligations (other than the Excluded Obligations) in connection therewith or secured thereby, such release, termination and/or discharge shall be effective, and (vig) furnishing Parent as promptly as reasonably practical (using, after the Closing, its commercially reasonable efforts to permit any cash and at least three (3) business days prior to the Closing Date) with all documentation and other information related to marketable securities of the Company and its Subsidiary required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulationsSubsidiaries that can reasonably be made available to pay a portion of the aggregate purchase price, including the PATRIOT Act, to be made available for that has been reasonably requested in writing by Parent or its Financing Sources at least ten (10) business days prior to the Closing Datepurpose. The Company hereby consents to the use provisions of its and its Subsidiary’s logos in connection with the Financing so long as this Section 7.04 shall not require such logos are used solely (i) in a manner that is not intended to or that is not reasonably likely to harm or disparage the Company or its Subsidiary or the reputation or goodwill of the Company or its Subsidiary and (ii) solely in connection with a description of the Company, its business and products or the Merger.
(b) Notwithstanding the requirements of Section 6.16(a) or anything in this Agreement to the contrary, (i) neither the Company nor any of its Affiliates or their respective Representatives shall be required to enter into, approve or perform (or commit to enter into, approve or perform) any certificate, document, agreement, or instrument, in each case which will be effective prior to the Effective Time, (ii) nothing herein shall require cooperation contemplated thereby to the extent it would interfere unreasonably with the business or operations of the Company or any of its Affiliates or their respective Affiliates, (iii) none of Subsidiaries. Neither the Company nor any of its Affiliates or their respective Representatives, will Subsidiaries shall be required to (1) pay or commit to pay any commitment fee or other fee, (2) reimburse similar fee or incur any costs or expenses or incur any other liability (including any guarantee, indemnity or pledge) in connection with the Financing or the Marketing Documents prior to the Effective Time, (3) provide any financial data other than the Required Information, or (4) provide any legal opinion or reliance letters or any certificate (in the case of the Company or its Subsidiary that would be required to be delivered prior to the Effective Time), comfort letter or opinion of any of its Representatives, (iv) nothing herein will involve any binding commitment by the Company, any of its Affiliates or any of their respective Representatives which commitment is not conditioned on the Effective Time and does not terminate without liability to the Company, its Affiliates and their respective Representatives upon the termination of this Agreement, and (v) nothing herein will require the Company, any of its Affiliates or any of their respective Representatives to provide any information or take any action, the disclosure or taking of which would violate applicable Legal Requirements, any fiduciary duty, any Contract or obligation of confidentiality owing to a third party, or jeopardize the protection of the attorney-client privilege (or similar protections) held by the Company or any of its Affiliates; provided that, if the Company does not provide or cause its Representatives to provide such access or such information in reliance on the foregoing, then the Company shall (1) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1) any Representative of the Company or its Subsidiary to deliver any certificate or opinion or take any other action under this Section 6.16 that could reasonably be expected to result in personal liability to such Representative; (2) the Board of Directors (or any committee or subcommittee thereof) or the board of directors, managers, managing member or any similar controlling body of any Subsidiary of the Company to approve (or otherwise take any corporate or similar action Closing with respect to) to any financing (including and Parent shall bear all costs and reimburse the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) officers and directors of the Company and its Subsidiary to take any action that would conflict with or violate its organizational or governance documents or any applicable Legal Requirements, or result in the contravention of, or that could reasonably be expected to result in a violation of breach of, or default under, any agreement to which the Company or its Subsidiary is a party.
(c) Subject to any applicable Legal Requirements, all non-public or other confidential information provided by the Company, its Subsidiary or any of their respective Representatives pursuant to this Agreement will be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Purchaser will be permitted to disclose such information to any Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties to the Financing and to any underwriters, initial purchasers or placement agents in connection with the Financing (and, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; or (ii) are subject to other confidentiality undertakings reasonably satisfactory to the Company and of which the Company is a beneficiary.
(d) If the Closing does not occur, promptly upon request by the Company, Parent will reimburse the Company Subsidiaries for any documented and reasonable out-of-pocket costs and expenses (they may incur in complying with this Section 7.04, including attorneys’ fees) incurred by expenses associated with attending meetings, presentations or similar sessions. The Company hereby consents to the Company or reasonable use of its Subsidiary logos in connection with the cooperation of the Company and its Subsidiary contemplated by this Section 6.16 (it being understood and agreed any financing, provided that the reimbursement set forth such logos are not used in this Section 6.16(d) shall not apply to any fees, costs, and expenses incurred by, a manner that hxxxx or on behalf of, the Company, its Subsidiary or any of its Representatives in connection with its ordinary course financial reporting requirements or in the provision of data that, in each case, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding this Section 6.16).
(e) The Parent shall indemnify, defend and hold harmless the Company Entities and their respective Representatives from and against any and all losses, damages, claims, interest, awards, judgments, penalties, costs and expenses suffered or incurred by any of them in connection with the Financing (including any action taken in accordance with this Section 6.16) and costs and expenses incurred in defending against the foregoing, except to the extent such losses, damages, claims, costs or expenses arise from the willful breach of this Agreement by the Company, as finally determined by a court of competent jurisdiction, or from fraud on the part of disparages the Company.
Appears in 1 contract
Samples: Merger Agreement (Conmed Healthcare Management, Inc.)
Financing Cooperation. During the Transition Period, the Seller shall and shall cause the Group Companies to cooperate with the Buyers and their advisors as reasonably necessary in connection with the third party debt financing (athe “Financing”) Subject obtained by any of the Buyers and/or their Affiliates in connection with the transactions contemplated by this Agreement as long as it does not constitute a breach of applicable law or regulation or any confidentiality obligation, including by:
6.5.1 subject to Section 6.16(bappropriate confidentiality protections, upon reasonable notice furnishing the Buyers’ Representative, lenders and prospective lenders (and their advisors) with financial and other available and existing information regarding the Group Companies as may be reasonably required by such lenders and of a type generally used in connection the Financing (including all financial statements, bank account details, pro forma financial information, financial data, audit reports and projections);
6.5.2 upon reasonable notice, prior reasonably assisting in the preparation of any bank information memoranda, business projections and financial statements and similar documents that may be reasonably required by the lenders and the prospective lenders, subject to Closing appropriate confidentiality protections, in connection with the Financing and provided that the Seller shall only be required to provide information that is or termination has been produced by the Company and the Subsidiaries in the ordinary course; and
6.5.3 regarding the Subsidiaries, cooperating in good faith with the Buyers in the preparation of the corporate actions, subject to the occurrence of Closing, reasonably requested by the Buyers’ Representative in connection with the Financing. Notwithstanding any other provisions of this Agreement, the Buyers shall pay all the documented and reasonable Third Party expenses and costs incurred by the Seller, the Seller’s Affiliates and the Company shall, and shall cause its Subsidiaries and their respective Representatives to, use reasonable best efforts in relation to reasonably cooperate any action properly taken by such person in compliance with and reasonably assist Parent, at the Parent’s request, sole cost and expense, written request of a Buyer or the Buyers’ Representative in connection with arranging, obtaining this Clause 6.5. The Seller does not represent and syndicating warrant any Financing and causing of the conditions in the Financing Documents and any commitment letters entered into in connection with such Financing to be satisfied, including using reasonable best efforts in (i) assisting with, and furnishing information for the purposes of, the preparation of customary prospectuses (including any pro forma financial information and any information required under Article 18(2) of Commission Delegated Regulation (EU) 2019/980), offering documents, syndication documents and materials, including bank information memoranda and private placement memoranda, lender and investor presentations, rating agency materials and presentations and other customary marketing materials in connection with the Financing (all such documents and materials, collectively, the “Marketing Documents”) (it being understood and agreed that the Marketing Documents shall include (or otherwise be subject to) any customary exculpation language, as the case may be, with respect provided to the CompanyBuyers, its Affiliates and their respective Representatives), (ii) furnishing to the Parent as promptly as reasonably practicable financial statements and operational information (including consolidated financial statements for interim periods up until the Closing Date) that can be prepared without undue burden with respect to the Company and its Subsidiary as is reasonably requested by Parent (the “Required Information”), (iii) assisting in the preparation of schedules to collateral agreements by providing information of the Company Entities required to be made available on such schedules for purposes of the arrangement lenders or consummation of the Financing, (iv) subject to any contractual agreement in effect, facilitating the pledging of collateral for the Financing, which shall not be required to be delivered or effective until at or promptly following the Effective Time, (v) subject to any contractual agreement in effect, obtaining the Payoff Letter, and the related lien releases, and instruments of termination or discharge, as applicable, required pursuant to Section 6.12, in each case which shall provide that, if sufficient funds are received by the financing sources under the Credit Agreement in order to pay off in full all obligations (other than the Excluded Obligations) in connection therewith or secured thereby, such release, termination and/or discharge shall be effective, and (vi) furnishing Parent as promptly as reasonably practical (and at least three (3) business days prior to the Closing Date) with all documentation and other information related to the Company and its Subsidiary required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, that has been reasonably requested in writing by Parent or its Financing Sources at least ten (10) business days prior to the Closing Date. The Company hereby consents to the use of its and its Subsidiary’s logos in connection with the Financing so long as such logos are used solely (i) in a manner that is not intended to or that is not reasonably likely to harm or disparage the Company or its Subsidiary or the reputation or goodwill of the Company or its Subsidiary and (ii) solely in connection with a description of the Company, its business and products or the Merger.
(b) Notwithstanding the requirements of Section 6.16(a) or anything in this Agreement to the contrary, (i) neither the Company nor any of its Affiliates or their respective Representatives shall be required to enter into, approve or perform (or commit to enter into, approve or perform) any certificate, document, agreement, or instrument, in each case which will be effective prior to the Effective Time, (ii) nothing herein shall require cooperation contemplated thereby to the extent it would interfere unreasonably with the business or operations of the Company or any of its Affiliates or their respective Affiliates, (iii) none of the Company nor any of its Affiliates or their respective Representatives, will be required to (1) pay or commit to pay any commitment or other fee, (2) reimburse or incur any costs or expenses or incur any other liability (including any guarantee, indemnity or pledge) in connection with the Financing or the Marketing Documents prior to the Effective Time, (3) provide any financial data other than the Required Information, or (4) provide any legal opinion or reliance letters or any certificate (in the case of the Company or its Subsidiary that would be required to be delivered prior to the Effective Time), comfort letter or opinion of any of its Representatives, (iv) nothing herein will involve any binding commitment by the Company, any of its Affiliates or any of their respective Representatives which commitment is not conditioned on the Effective Time and does not terminate without liability to the Company, its Affiliates and their respective Representatives upon the termination of this Agreement, and (v) nothing herein will require the Company, any of its Affiliates or any of their respective Representatives to provide any information or take any action, the disclosure or taking of which would violate applicable Legal Requirements, any fiduciary duty, any Contract or obligation of confidentiality owing to a third party, or jeopardize the protection of the attorney-client privilege (or similar protections) held by the Company or any of its Affiliates; provided that, if the Company does not provide or cause its Representatives to provide such access or such information in reliance on the foregoing, then the Company shall (1) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1) any Representative of the Company or its Subsidiary to deliver any certificate or opinion or take any other action under this Section 6.16 that could reasonably be expected to result in personal liability to such Representative; (2) the Board of Directors (or any committee or subcommittee thereof) or the board of directors, managers, managing member or any similar controlling body of any Subsidiary of the Company to approve (or otherwise take any corporate or similar action with respect to) any financing (including the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) the Company and its Subsidiary to take any action that would conflict with or violate its organizational or governance documents or any applicable Legal Requirements, or result in the contravention of, or that could reasonably be expected to result in a violation of breach of, or default under, any agreement to which the Company or its Subsidiary is a party.
(c) Subject to any applicable Legal Requirements, all non-public or other confidential information provided by the Company, its Subsidiary or any of their respective Representatives prospective lenders pursuant to this Agreement will be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Purchaser will be permitted to disclose such information to any Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties to the Financing and to any underwriters, initial purchasers or placement agents in connection with the Financing (and, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; or (ii) are subject to other confidentiality undertakings reasonably satisfactory to the Company and of which the Company is a beneficiaryClause 6.5.
(d) If the Closing does not occur, promptly upon request by the Company, Parent will reimburse the Company for any documented and reasonable out-of-pocket costs and expenses (including attorneys’ fees) incurred by the Company or its Subsidiary in connection with the cooperation of the Company and its Subsidiary contemplated by this Section 6.16 (it being understood and agreed that the reimbursement set forth in this Section 6.16(d) shall not apply to any fees, costs, and expenses incurred by, or on behalf of, the Company, its Subsidiary or any of its Representatives in connection with its ordinary course financial reporting requirements or in the provision of data that, in each case, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding this Section 6.16).
(e) The Parent shall indemnify, defend and hold harmless the Company Entities and their respective Representatives from and against any and all losses, damages, claims, interest, awards, judgments, penalties, costs and expenses suffered or incurred by any of them in connection with the Financing (including any action taken in accordance with this Section 6.16) and costs and expenses incurred in defending against the foregoing, except to the extent such losses, damages, claims, costs or expenses arise from the willful breach of this Agreement by the Company, as finally determined by a court of competent jurisdiction, or from fraud on the part of the Company.
Appears in 1 contract
Financing Cooperation. (a) Subject The Company acknowledges that Parent intends to Section 6.16(b)obtain debt financing to finance all or a portion of the Merger Consideration (the “ Proposed Financing ”) . Notwithstanding anything to the contrary contained herein, Parent agrees that (i) prior to Closing the Closing, none of the Company or termination any of its Subsidiaries shall have any liability (whether in 56 contract, tort or otherwise) for any one or more of the representations, warranties, covenants, agreements or other obligations under the agreements for the Proposed Financing, (ii) such Proposed Financing shall not contain any restrictive covenant or other obligations that are required to be performed or complied with by the Company or any of its Subsidiaries prior to the Closing, and (iii) the obligations of Parent and Acquisition Sub under this Agreement are not subject to any conditions regarding Parent’s, its Affiliates’, or any other Person’s ability to obtain the Proposed Financing or any other financing for the consummation of the transactions contemplated hereby . (b) Until the Closing, subject to the other terms and conditions of this Agreement, the Company shallshall use its reasonable best efforts to provide, and shall to cause its Subsidiaries and its and their respective Representatives toto provide, use upon the reasonable best efforts to reasonably cooperate with and reasonably assist request of Parent, at the Parent’s request, sole cost reasonable and expense, customary cooperation in connection with arrangingthe Proposed Financing (to the extent not in violation of this Agreement), obtaining including by : (i) reasonably cooperating with any customary due diligence process as reasonably requested by Parent, including instructing appropriate members of senior management to participate in a reasonable number of meetings, if any (it being understood that such meetings may occur telephonically or by videoconferencing) in connection with the Proposed Financing upon reasonable advance notice and syndicating any at mutually agreeable dates and times ; (ii) providing pertinent historical financial information as is reasonably available to the Company, customarily required for completion of debt financings similar to the Proposed Financing and causing the conditions reasonably requested by Parent in the Financing Documents and any commitment letters entered into order to obtain or in connection with such Financing to be satisfiedfinancing, including using reasonable best efforts the Required Information ; (iii) reasonably assisting Parent in (i) assisting with, and furnishing information for the purposes of, the its preparation of customary prospectuses offering and marketing documents (including any pro forma financial information and any information supplements thereto) required under Article 18(2) of Commission Delegated Regulation (EU) 2019/980), offering documents, syndication documents and materials, including bank information memoranda and private placement memoranda, lender and investor presentations, rating agency materials and presentations and other customary marketing materials in connection with the Proposed Financing ; and (all such documents and materials, collectively, the “Marketing Documents”iv) (it being understood and agreed that the Marketing Documents shall include (or otherwise be subject to) any customary exculpation language, as the case may be, with respect to the Company, its Affiliates and their respective Representatives), (ii) furnishing to the Parent as promptly as reasonably practicable financial statements and operational information (including consolidated financial statements for interim periods up until the Closing Date) that can be prepared without undue burden with respect to the Company and its Subsidiary as is extent reasonably requested by Parent Parent, requesting the consent of, and customary comfort letters from, the Company’s independent accountants (the “Required Information”), (iiiand providing customary management letters and requesting legal letters to obtain such consent) assisting in the preparation of schedules to collateral agreements by providing information if necessary for Parent’s use of the Company Entities required to be made available on such schedules for purposes of Company’s financial statements . Notwithstanding the arrangement or consummation of the Financingforegoing, (iv) subject to any contractual agreement in effect, facilitating the pledging of collateral for the Financing, which shall not be required to be delivered or effective until at or promptly following the Effective Time, (v) subject to any contractual agreement in effect, obtaining the Payoff Letter, and the related lien releases, and instruments of termination or discharge, as applicable, required pursuant to Section 6.12, in each case which shall provide that, if sufficient funds are received by the financing sources under the Credit Agreement in order to pay off in full all obligations (other than the Excluded Obligations) in connection therewith or secured thereby, such release, termination and/or discharge shall be effective, and (vi) furnishing Parent as promptly as reasonably practical (and at least three (3) business days prior to the Closing Date) with all documentation and other information related to the Company and its Subsidiary required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, that has been reasonably requested in writing by Parent or its Financing Sources at least ten (10) business days prior to the Closing Date. The Company hereby consents to the use of its and its Subsidiary’s logos in connection with the Financing so long as such logos are used solely (i) in a manner that is not intended to or that is not reasonably likely to harm or disparage the Company or its Subsidiary or the reputation or goodwill of the Company or its Subsidiary and (ii) solely in connection with a description none of the Company, any of its business and products or the Merger.
(b) Notwithstanding the requirements of Section 6.16(a) or anything in this Agreement to the contrary, (i) neither the Company Subsidiaries nor any of its Affiliates or their respective Representatives shall be required to enter into, approve take or perform permit the taking of any action pursuant to this Section 6 . 10 (or commit to enter into, approve or performb) any certificate, document, agreement, or instrument, in each case which will be effective prior to the Effective Time, (ii) nothing herein shall require cooperation contemplated thereby to the extent it would interfere unreasonably with the business or operations of the Company or any of its Affiliates or their respective Affiliates, (iii) none of the Company nor any of its Affiliates or their respective Representatives, will be required to (1) pay or commit to pay any commitment or other fee, (2) reimburse or incur any costs or expenses or incur any other liability (including any guarantee, indemnity or pledge) in connection with the Financing or the Marketing Documents prior to the Effective Time, (3) provide any financial data other than the Required Information, or (4) provide any legal opinion or reliance letters or any certificate (in the case of the Company or its Subsidiary that would be required to be delivered prior to the Effective Time), comfort letter or opinion of any of its Representatives, : (ivA) nothing herein will involve any binding commitment by the Company, any of its Affiliates or any of their respective Representatives which commitment is not conditioned on the Effective Time and does not terminate without liability to the Company, its Affiliates and their respective Representatives upon the termination of this Agreement, and (v) nothing herein will require the Company, any of its Affiliates Subsidiaries or any of their respective Representatives to pass resolutions or consents to approve or authorize the execution of the Proposed Financing, or to enter into or execute any certificate, document, instrument or agreement or agree to any change or modification of any existing certificate, document, instrument or agreement or take any other similar action to the extent any such action would be effective prior to the Closing (other than signing customary authorization letters), (B) require the Company, any of its Subsidiaries or any of their respective Representatives to pay any commitment or other similar fee or incur any other expense, liability or obligation in connection with such financing, (C) cause any director, officer, employee or stockholder of the Company, any of its Subsidiaries or any of their respective Representatives to incur any personal liability or take action that could reasonably be expected to result in such liability, (D) conflict with the organizational documents of the Company, any of its Subsidiaries or any of their respective Representatives or any Laws, (E) 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, any of its Subsidiaries or any of their respective Representatives is a party, (F) require the Company, any of its Subsidiaries or any of their respective Representatives to provide access to or disclose information that could jeopardize any information or take any action, the disclosure or taking of which would violate applicable Legal Requirements, any fiduciary duty, any Contract or obligation of confidentiality owing to a third party, or jeopardize the protection of the attorney-attorney - client privilege (or similar protections) held by other applicable privilege of such Person ( provided , however, that the Company or any of its Affiliates; provided that, if the Company does not provide or cause its Representatives shall use commercially reasonable efforts to provide such access or disclose such information in reliance on the foregoing, then the Company shall (1) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information in a way manner that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1) any Representative of the Company attorney - client or its Subsidiary to deliver any certificate or opinion or take any other action under this Section 6.16 that could reasonably be expected to result in personal liability to such Representative; (2) the Board of Directors (or any committee or subcommittee thereof) or the board of directors, managers, managing member or any similar controlling body of any Subsidiary of the Company to approve (or otherwise take any corporate or similar action with respect to) any financing (including the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) the Company and its Subsidiary to take any action that would conflict with or violate its organizational or governance documents or any applicable Legal Requirements, or result in the contravention of, or that could reasonably be expected to result in a violation of breach of, or default under, any agreement to which the Company or its Subsidiary is a party.
(c) Subject to any applicable Legal Requirements, all non-public or other confidential information provided by the Company, its Subsidiary or any of their respective Representatives pursuant to this Agreement will be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Purchaser will be permitted to disclose such information to any Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties to the Financing and to any underwriters, initial purchasers or placement agents in connection with the Financing (and, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; or (ii) are subject to other confidentiality undertakings reasonably satisfactory to the Company and of which the Company is a beneficiary.
(d) If the Closing does not occur, promptly upon request by the Company, Parent will reimburse the Company for any documented and reasonable out-of-pocket costs and expenses (including attorneys’ fees) incurred by the Company or its Subsidiary in connection with the cooperation of the Company and its Subsidiary contemplated by this Section 6.16 (it being understood and agreed that the reimbursement set forth in this Section 6.16(d) shall not apply to any fees, costs, and expenses incurred by, or on behalf of, the Company, its Subsidiary or any of its Representatives in connection with its ordinary course financial reporting requirements or in the provision of data that, in each case, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding this Section 6.16).
(e) The Parent shall indemnify, defend and hold harmless the Company Entities and their respective Representatives from and against any and all losses, damages, claims, interest, awards, judgments, penalties, costs and expenses suffered or incurred by any of them in connection with the Financing (including any action taken in accordance with this Section 6.16) and costs and expenses incurred in defending against the foregoing, except to the extent such losses, damages, claims, costs or expenses arise from the willful breach of this Agreement by the Company, as finally determined by a court of competent jurisdiction, or from fraud on the part of the Company.other
Appears in 1 contract
Financing Cooperation. (a) Subject Xxxx has agreed to Section 6.16(b), prior to Closing or termination of this Agreement, the Company shall, and shall cause use its Subsidiaries and their respective Representatives to, use reasonable best efforts to reasonably cooperate with and reasonably assist Parent, at the Parent’s request, sole cost and expense, in connection with arranging, obtaining and syndicating any Financing and causing the conditions in the Financing Documents and any commitment letters entered into in connection with such Financing to be satisfied, including using reasonable best efforts in (i) assisting withprovide, and furnishing information for the purposes ofto cause its subsidiaries and each of their respective representatives to provide, the preparation of customary prospectuses (including any pro forma financial information to Celgene and any information required under Article 18(2) of Commission Delegated Regulation (EU) 2019/980)Purchaser reasonable cooperation that may be reasonably requested by Celgene and Purchaser and that is necessary or customary, offering documents, syndication documents and materials, including bank information memoranda and private placement memoranda, lender and investor presentations, rating agency materials and presentations and other customary marketing materials proper or advisable in connection with the Financing (all such documents and materialsarrangement of any debt financing undertaken by Celgene in contemplation of the Transactions, collectivelyincluding reasonable cooperation, the “Marketing Documents”) (it being understood and agreed that the Marketing Documents shall include (or otherwise be subject to) any customary exculpation language, as the case may be, with respect to the Companyextent reasonably requested (a) to provide material financial and other pertinent information to Celgene, its Affiliates Purchaser and their respective Representativesfinancing sources, (b) to cooperate with the marketing efforts of Celgene, Purchaser and their financing sources for any financing (including causing Celgene’s and Purchaser’s representatives to participate in meetings, presentations, road shows, due diligence sessions and sessions with rating agencies, a reasonable number of times), (iic) furnishing to the Parent as promptly as reasonably practicable financial statements and operational information (including consolidated financial statements for interim periods up until the Closing Date) that can be prepared without undue burden assist with respect to the Company and its Subsidiary as is reasonably requested by Parent (the “Required Information”), (iii) assisting in the preparation of schedules to collateral agreements by providing information materials for the foregoing and offering documents (including assisting with the preparation of pro forma financial statements meeting the Company Entities required to be made available on such schedules for purposes requirements of SEC Regulation S-X) necessary, proper or advisable in connection with the arrangement or consummation of the Financingfinancing, (ivd) subject to assist Celgene in obtaining consents of Xxxx’s auditors for use of their reports in any contractual agreement in effect, facilitating the pledging of collateral for the Financing, which shall not be required materials relating to be delivered or effective until at or promptly following the Effective Time, (v) subject to any contractual agreement in effect, obtaining the Payoff Letter, and the related lien releases, and instruments of termination or discharge, as applicable, required pursuant to Section 6.12, in each case which shall provide that, if sufficient funds are received by the financing sources under the Credit Agreement in order to pay off in full all obligations (other than the Excluded Obligations) in connection therewith or secured thereby, such release, termination and/or discharge shall be effective, and customary “comfort letters,” and (vie) furnishing Parent as promptly as reasonably practical (and at least three (3) business days prior to the Closing Date) with provide all documentation and other information related to the Company and its Subsidiary required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations. Neither Juno, including its subsidiaries nor any of their representatives shall be required to take any action under any of the PATRIOT Act, foregoing that has been reasonably requested in writing by Parent is not contingent upon consummation of the Offer or its Financing Sources at least ten (10) business days that would be effective prior thereto or take any corporate actions prior to the Closing Dateclosing of the Merger. The Company hereby Neither Juno nor its subsidiaries shall be required to cooperate to the extent that such cooperation would, in the good faith determination of Juno, interfere unreasonably with Juno’s or its subsidiaries’ business or operations. Neither Juno nor any of its subsidiaries shall be required to (a) waive or amend any terms of the Merger Agreement, (b) take any TABLE OF CONTENTS action that will conflict with or violate its organizational documents or any applicable legal requirement, (c) issue any offering or information document, or (d) 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 (other than reasonable out of pocket costs that will be reimbursed by Celgene) or incur any other liability or provide or agree to provide any indemnity in connection with the financing that would be effective prior to the closing. Juno consents to the use of its and its Subsidiary’s subsidiaries’ logos in connection with the Financing so long as syndication or marketing of the financing (provided such logos are used solely (i) in a manner that is reasonable and customary in connection with a financing, and not intended to or that is not reasonably likely to harm or disparage the Company or its Subsidiary or the reputation or goodwill of the Company or its Subsidiary and (ii) solely in connection with a description of the CompanyJuno, its business and products or the Merger.
(b) Notwithstanding the requirements of Section 6.16(a) or anything in this Agreement to the contrary, (i) neither the Company nor any of its Affiliates subsidiaries or their respective Representatives shall be required to enter into, approve or perform (or commit to enter into, approve or perform) any certificate, document, agreement, or instrument, in each case which will be effective prior to the Effective Time, (ii) nothing herein shall require cooperation contemplated thereby to the extent it would interfere unreasonably with the business or operations of the Company or any of its Affiliates or their respective Affiliates, (iii) none of the Company nor any of its Affiliates or their respective Representatives, will be required to (1) pay or commit to pay any commitment or other fee, (2) reimburse or incur any costs or expenses or incur any other liability (including any guarantee, indemnity or pledge) in connection with the Financing or the Marketing Documents prior to the Effective Time, (3) provide any financial data other than the Required Information, or (4) provide any legal opinion or reliance letters or any certificate (in the case of the Company or its Subsidiary that would be required to be delivered prior to the Effective Timemarks), comfort letter or opinion of any of its Representatives, (iv) nothing herein will involve any binding commitment by the Company, any of its Affiliates or any of their respective Representatives which commitment is not conditioned on the Effective Time and does not terminate without liability to the Company, its Affiliates and their respective Representatives upon the termination of this Agreement, and (v) nothing herein will require the Company, any of its Affiliates or any of their respective Representatives to provide any information or take any action, the disclosure or taking of which would violate applicable Legal Requirements, any fiduciary duty, any Contract or obligation of confidentiality owing to a third party, or jeopardize the protection of the attorney-client privilege (or similar protections) held by the Company or any of its Affiliates; provided that, if the Company does not provide or cause its Representatives to provide such access or such information in reliance on the foregoing, then the Company shall (1) provide a . Upon written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1) any Representative of the Company or its Subsidiary to deliver any certificate or opinion or take any other action under this Section 6.16 that could reasonably be expected to result in personal liability to such Representative; (2) the Board of Directors (or any committee or subcommittee thereof) or the board of directors, managers, managing member or any similar controlling body of any Subsidiary of the Company to approve (or otherwise take any corporate or similar action with respect to) any financing (including the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) the Company and its Subsidiary to take any action that would conflict with or violate its organizational or governance documents or any applicable Legal Requirements, or result in the contravention of, or that could reasonably be expected to result in a violation of breach of, or default under, any agreement to which the Company or its Subsidiary is a party.
(c) Subject to any applicable Legal Requirements, all non-public or other confidential information provided by the Company, its Subsidiary or any of their respective Representatives pursuant to this Agreement will be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Purchaser will be permitted to disclose such information to any Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties to the Financing and to any underwriters, initial purchasers or placement agents in connection with the Financing (and, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; or (ii) are subject to other confidentiality undertakings reasonably satisfactory to the Company and of which the Company is a beneficiary.
(d) If the Closing does not occur, promptly upon request by the CompanyXxxx, Parent will Celgene shall promptly reimburse the Company Juno for any documented and all reasonable out-of-pocket costs and expenses (including attorneys’ fees) incurred by the Company Xxxx or its Subsidiary subsidiaries in connection with the their cooperation of the Company and its Subsidiary contemplated by this Section 6.16 (it being understood and agreed that the reimbursement set forth in this Section 6.16(d) shall not apply to any fees, costs, and expenses incurred by, or on behalf of, the Company, its Subsidiary or any of its Representatives in connection with its ordinary course financial reporting requirements or in the provision of data that, in each case, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding this Section 6.16).
(e) The Parent shall indemnify, defend indemnify and hold harmless the Company Entities Juno, its subsidiaries and their respective Representatives representatives from and against any and all losses, damages, claims, interest, awards, judgments, penalties, settlements, costs and or expenses (including reasonable attorneys’ fees) suffered or incurred by any them to the extent they arose out of them in connection with the Financing (including any action actions taken in accordance with this Section 6.16) and costs and expenses incurred in defending against the foregoingby Xxxx, its subsidiaries or their respective representatives pursuant to their cooperation described above except to the extent such losses, damages, claims, costs or expenses arise from the willful breach of this Agreement by the Company, as finally foregoing are determined by a final non-appealable judgment of a court of competent jurisdictionjurisdiction to have arisen out of or resulted from the gross negligence or willful misconduct of Juno, any of its subsidiaries or from fraud on any of their respective representatives. Celgene and Purchaser acknowledge and agree that obtaining the part financing is not a condition to consummation of the CompanyTransactions and that Celgene and Purchaser have agreed to pay for the tendered Shares and consummate the Merger and the other Transactions regardless of the availability of the financing and Xxxx’s condition to have complied with or performed in all material respects the obligations, covenants and agreements under the Merger Agreement at or prior to the Offer Acceptance Time will be deemed to have been satisfied with respect to any of Xxxx’s obligations pursuant to the financing.
Appears in 1 contract
Financing Cooperation. (a) Subject to Section 6.16(b6.10(a), prior to Closing or termination of this Agreement, the Company shallshall and shall cause its Subsidiaries, and shall use its reasonable best efforts to cause their respective Representatives to, at Parent's sole expense, reasonably cooperate in connection with the arrangement of the Financing or alternative financing as may be reasonably requested by Parent (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries or utilize an undue amount of the Company's or Subsidiaries' personnel time). Subject to the immediately preceding sentence, such cooperation by the Company and its Subsidiaries and their respective Representatives to, use reasonable best efforts to reasonably cooperate with and reasonably assist Parentshall include, at the reasonable request of Parent’s request, sole cost (a) participating in a reasonable number of meetings and expense, in connection presentations with arranging, obtaining and syndicating any Financing and causing the conditions in the Financing Documents and any commitment letters entered into in connection with such Financing to be satisfied, prospective lenders (including using reasonable best efforts to make available the Company's senior management for participation in such meetings), (ib) assisting with, and furnishing using reasonable best efforts to provide information for the purposes of, the preparation of customary prospectuses (including any information necessary to facilitate preparation of projections and the pro forma financial information and any information statements required under pursuant to the Securities Act (including Article 18(2XI of Regulation S-X) of Commission Delegated Regulation (EU) 2019/980in connection with the Merger), offering documents, syndication documents authorization letters, opinions and materialscertificates, including bank information memoranda enter into agreements and private placement memoranda, lender and investor presentations, rating agency materials and presentations and take other actions that are customary marketing materials in connection with the Financing or alternative financing or necessary or desirable to permit Parent to fulfill conditions or obligations under the definitive documentation for the Financing or the alternative financing, (all such documents and materials, collectively, c) furnishing the “Marketing Documents”) (it being understood and agreed that the Marketing Documents shall include (or otherwise be subject to) any customary exculpation language, as the case may be, with respect to report of the Company, its Affiliates and their respective Representatives), (ii) furnishing to 's auditor on the Parent as promptly as reasonably practicable financial statements and operational information (including most recently available audited consolidated financial statements for interim periods up until the Closing Date) that can be prepared without undue burden with respect to of the Company and its Subsidiary as is Subsidiaries and using its reasonable best efforts to obtain the consent of such auditor to the use of such report in accordance with normal custom and practice, (d) using reasonable best efforts to assist in the preparation of one or more confidential information memoranda and other marketing and syndication materials reasonably requested by Parent (the “Required Information”), (iii) assisting in the preparation of schedules to collateral agreements by providing information of the Company Entities required to be made available on such schedules for purposes of the arrangement or consummation of the Financing, (iv) subject to any contractual agreement in effect, facilitating the pledging of collateral for the Financing, which shall not be required to be delivered or effective until at or promptly following the Effective Time, (v) subject to any contractual agreement in effect, obtaining the Payoff Letter, and the related lien releases, and instruments of termination or discharge, as applicable, required pursuant to Section 6.12, in each case which shall provide that, if sufficient funds are received by the financing sources under the Credit Agreement in order to pay off in full all obligations (other than the Excluded Obligations) in connection therewith or secured thereby, such release, termination and/or discharge shall be effective, and (vie) furnishing Parent as promptly as reasonably practical (and at least three (3) business days prior using commercially reasonable efforts to the Closing Date) with all documentation and other information related to the Company and its Subsidiary required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, that has been reasonably requested assist in writing by Parent procuring any necessary rating agency ratings or its Financing Sources at least ten (10) business days prior to the Closing Dateapprovals. The Company hereby consents to the reasonable use of its and its Subsidiary’s logos in connection with the Financing or any alternative Financing, provided that such use is disclosed to the Company in writing prior to the time that it is so long as used, such logos are used solely (i) in a manner that is not intended to or that is could not reasonably likely be expected to harm or disparage the Company Company, its Subsidiaries or its Subsidiary or the reputation or goodwill of their marks and on such other customary terms and conditions as the Company or its applicable Subsidiary shall reasonably impose. Parent shall, promptly upon termination of this Agreement, reimburse the Company for all reasonable out-of-pocket expenses and (ii) solely costs incurred in connection with a description of the Company, 's or its business and products or the Merger.
(b) Affiliates' obligations under this Section 6.11. Notwithstanding the requirements of Section 6.16(a) or anything in this Agreement to the contrary, (i) neither the Company nor any of its Affiliates or their respective Representatives Subsidiaries shall be required to enter into, approve or perform (or commit to enter into, approve or perform) any certificate, document, agreement, or instrument, in each case which will be effective prior to the Effective Time, (ii) nothing herein shall require cooperation contemplated thereby to the extent it would interfere unreasonably with the business or operations of the Company or any of its Affiliates or their respective Affiliates, (iii) none of the Company nor any of its Affiliates or their respective Representatives, will be required to (1) pay or commit to pay any commitment or other fee, (2) reimburse similar fee or incur enter into any costs or expenses definitive agreement or incur any other liability (including any guarantee, indemnity or pledge) obligation in connection with the Financing (or the Marketing Documents any alternative financing) prior to the Effective Time, (3) provide any financial data other than the Required Information, or (4) provide any legal opinion or reliance letters or any certificate (in the case of the Company or its Subsidiary that would be required to be delivered prior to the Effective Time), comfort letter or opinion of any of its Representatives, (iv) nothing herein will involve any binding commitment by the Company, any of its Affiliates or any of their respective Representatives which commitment is not conditioned on the Effective Time and does not terminate without liability to the Company, its Affiliates and their respective Representatives upon the termination of this Agreement, and (v) nothing herein will require the Company, any of its Affiliates or any of their respective Representatives to provide any . All material non-public information or take any action, the disclosure or taking of which would violate applicable Legal Requirements, any fiduciary duty, any Contract or obligation of confidentiality owing to a third party, or jeopardize the protection of the attorney-client privilege (or similar protections) held provided by the Company or any of its Affiliates; provided that, if the Company does not provide or cause its Representatives to provide such access or such information in reliance on the foregoing, then the Company shall (1) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1) any Representative of the Company or its Subsidiary to deliver any certificate or opinion or take any other action under this Section 6.16 that could reasonably be expected to result in personal liability to such Representative; (2) the Board of Directors (or any committee or subcommittee thereof) or the board of directors, managers, managing member or any similar controlling body of any Subsidiary of the Company to approve (or otherwise take any corporate or similar action with respect to) any financing (including the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) the Company and its Subsidiary to take any action that would conflict with or violate its organizational or governance documents or any applicable Legal Requirements, or result in the contravention of, or that could reasonably be expected to result in a violation of breach of, or default under, any agreement to which the Company or its Subsidiary is a party.
(c) Subject to any applicable Legal Requirements, all non-public or other confidential information provided by the Company, its Subsidiary Subsidiaries or any of their respective Representatives pursuant to this Agreement will Section 6.11 shall be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Purchaser will Merger Sub shall be permitted to disclose such information to any Financing Sources or prospective equity or debt financing sources the lenders in respect of the Commitment Letter and other financial institutions potential sources of capital, rating agencies and prospective lenders and investors that are during syndication of the Financing or may become parties any alternative Financing subject to the Financing lenders, potential sources of capital, ratings agencies and to any underwriters, initial purchasers or placement agents in connection with the Financing (and, in each case, to their respective counsel prospective lenders and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; or (ii) are subject to other investors entering into customary confidentiality undertakings reasonably satisfactory with respect to the Company and of which the Company is a beneficiary.
(d) If the Closing does not occur, promptly upon request by the Company, Parent will reimburse the Company for any documented and reasonable out-of-pocket costs and expenses such information (including attorneys’ fees) incurred by the Company or its Subsidiary through a notice and undertaking in connection with the cooperation of the Company and its Subsidiary contemplated by this Section 6.16 (it being understood and agreed that the reimbursement set forth a form customarily used in this Section 6.16(d) shall not apply to any fees, costs, and expenses incurred by, or on behalf of, the Company, its Subsidiary or any of its Representatives in connection with its ordinary course financial reporting requirements or in the provision of data that, in each case, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding this Section 6.16confidential information memoranda for senior credit facilities).
(e) The Parent shall indemnify, defend and hold harmless the Company Entities and their respective Representatives from and against any and all losses, damages, claims, interest, awards, judgments, penalties, costs and expenses suffered or incurred by any of them in connection with the Financing (including any action taken in accordance with this Section 6.16) and costs and expenses incurred in defending against the foregoing, except to the extent such losses, damages, claims, costs or expenses arise from the willful breach of this Agreement by the Company, as finally determined by a court of competent jurisdiction, or from fraud on the part of the Company.
Appears in 1 contract
Financing Cooperation. (a) Subject to Section 6.16(b)The parties hereto acknowledge and agree that, prior to Closing the Effective Time, it may be necessary for the Parent or termination its Subsidiaries to enter into debt or equity financing transactions (any such financing, a “Pre-Merger Financing Transaction”), including new financing in connection with the Merger, or the refinancing of this Agreementexisting indebtedness or the retirement, prepayment or redemption of existing indebtedness, whether or not in connection with the Merger, and/or producing related amendments, amendment and restatements, modifications, waivers or consents relating to any such Pre-Merger Financing Transaction. In connection with any Pre-Merger Financing Transaction, the Company shall, and shall cause its Subsidiaries and their respective Representatives to, use commercially reasonable best efforts to provide such information and documentation as may be reasonably requested by Parent in connection with the structuring, marketing and execution of any Pre-Merger Financing Transaction, and shall, and shall cause its officers, directors, employees and investment bankers to, reasonably cooperate with Parent with respect to such financing, including: (i) participating in meetings, due diligence sessions and reasonably assist Parentrating agency presentations, at the Parent’s request, sole cost and expensemutually agreeable times, in connection with arranging, obtaining and syndicating any the Pre-Merger Financing and causing the conditions in the Financing Documents and any commitment letters entered into in connection with such Financing to be satisfied, including using reasonable best efforts in (i) assisting with, and furnishing information for the purposes of, the preparation of customary prospectuses (including any pro forma financial information and any information required under Article 18(2) of Commission Delegated Regulation (EU) 2019/980), offering documents, syndication documents and materials, including bank information memoranda and private placement memoranda, lender and investor presentations, rating agency materials and presentations and other customary marketing materials in connection with the Financing (all such documents and materials, collectively, the “Marketing Documents”) (it being understood and agreed that the Marketing Documents shall include (or otherwise be subject to) any customary exculpation language, as the case may be, with respect to the Company, its Affiliates and their respective Representatives)Transaction, (ii) furnishing assisting with the preparation of any portion of the disclosure in relation to the Parent as promptly as reasonably practicable Pre-Merger Financing Transaction that relates to the Merger or the transactions contemplated hereby (including any historical financial information and operational data and commercially reasonable efforts to provide any information needed for the preparation of pro forma financial statements and operational information (including consolidated financial statements for interim periods up until the Closing Date) that can be prepared without undue burden with respect to the Company and its Subsidiary as is reasonably requested by Parent (the “Required Information”Parent), and (iii) assisting in the preparation of schedules to collateral agreements by providing information of the Company Entities required to be made available on such schedules for purposes of the arrangement executing and delivering any pledge and security documents, guarantees, indentures, other definitive financing documents and other certificates or consummation of the Financing, (iv) subject to any contractual agreement in effect, facilitating the pledging of collateral for the Financing, which shall not be required to be delivered or effective until at or promptly following the Effective Time, (v) subject to any contractual agreement in effect, obtaining the Payoff Letterdocuments, and the related lien releaseslegal opinions as may be reasonably requested (in each case, subject to, and instruments effective upon, the occurrence of termination or discharge, as applicable, required pursuant to Section 6.12, in each case which shall provide that, if sufficient funds are received by the financing sources under the Credit Agreement in order to pay off in full all obligations (other than the Excluded Obligations) in connection therewith or secured thereby, such release, termination and/or discharge shall be effective, and (vi) furnishing Parent as promptly as reasonably practical (and at least three (3) business days prior to the Closing Date) with all documentation and other information related to the Company and its Subsidiary required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, that has been reasonably requested in writing by Parent or its Financing Sources at least ten (10) business days prior to the Closing Date. The Company hereby consents to the use of its and its Subsidiary’s logos in connection with the Financing so long as such logos are used solely (i) in a manner that is not intended to or that is not reasonably likely to harm or disparage the Company or its Subsidiary or the reputation or goodwill of the Company or its Subsidiary and (ii) solely in connection with a description of the Company, its business and products or the MergerClosing).
(b) Notwithstanding anything to the requirements of Section 6.16(a) or anything contrary in this Agreement to the contrarySection 5.13, (i) neither nothing in this Agreement (including this Section 5.13) shall (A) require any of the Company nor or its Subsidiaries to waive or amend any terms of this Agreement or agree to pay any commitment or other fees or reimburse any expenses prior to the Closing, or incur any liability or give any indemnities or otherwise commit to take any action that is not contingent upon and effective only following the Closing, (B) require the Company or any of its Affiliates or their respective Representatives shall be required Subsidiaries to enter into, approve or perform (or commit to enter into, approve or perform) take any certificate, document, agreement, or instrument, in each case which will be effective prior to the Effective Time, (ii) nothing herein shall require cooperation contemplated thereby to the extent it action that would unreasonably interfere unreasonably with the ordinary course of business or operations of the Company or any of its Affiliates or their respective AffiliatesSubsidiaries, (iiiC) none of the Company nor require any of its Affiliates or their respective Representatives, will be required to (1) pay or commit to pay any commitment or other fee, (2) reimburse or incur any costs or expenses or incur any other liability (including any guarantee, indemnity or pledge) in connection with the Financing or the Marketing Documents prior to the Effective Time, (3) provide any financial data other than the Required Information, or (4) provide any legal opinion or reliance letters or any certificate (in the case of the Company or its Subsidiary that would be required to be delivered prior to the Effective Time), comfort letter or opinion of any of its Representatives, (iv) nothing herein will involve any binding commitment by the Company, any of its Affiliates or any of their respective Representatives which commitment is not conditioned on the Effective Time and does not terminate without liability to the Company, its Affiliates and their respective Representatives upon the termination of this Agreement, and (v) nothing herein will require the Company, any of its Affiliates or any of their respective Representatives to provide any information or take any action, the disclosure or taking of which would violate applicable Legal Requirements, any fiduciary duty, any Contract or obligation of confidentiality owing to a third party, or jeopardize the protection of the attorney-client privilege (or similar protections) held by the Company or any of its Affiliates; provided that, if the Company does not provide or cause its Representatives to provide such access or such information in reliance on the foregoing, then the Company shall (1) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1) any Representative of the Company or its Subsidiary to deliver any certificate or opinion or take any other action under this Section 6.16 that could reasonably be expected to result in personal liability to such Representative; (2) the Board of Directors (or any committee or subcommittee thereof) or the board of directors, managers, managing member or any similar controlling body of any Subsidiary of the Company to approve (or otherwise take any corporate or similar action with respect to) any financing (including the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) the Company and its Subsidiary Subsidiaries to take any action that would conflict with or violate its such Person’s organizational or governance documents or any applicable Legal Requirements, Requirement or result in the contravention of, or that could would reasonably be expected to result in a violation of or breach of, or default under, any agreement material Contract to which any of the Company or its Subsidiary Subsidiaries is a party, or (D) require the Company or any of its Subsidiaries to take any action that would result in any officer, director, employee or securityholder of any of the Company or its Subsidiaries incurring any personal liability with respect to any matters relating to any such Pre-Merger Financing Transaction; (ii) no action, liability or obligation of any of the Company or its Subsidiaries or any of their respective officers, directors, employees or securityholders under any certificate, agreement, arrangement, document or instrument relating to the Pre-Merger Financing Transaction shall be effective until the Closing; and (iii) notwithstanding anything to the contrary, the parties hereto agree that any preparation of documents (including bank information memoranda or other offer documents in connection with any Pre-Merger Financing Transaction) and provision of information with respect to the prospects and plans for any of the Company’s and its Subsidiaries’ business and operations in connection with any Pre-Merger Financing Transaction remains the sole responsibility of Parent, and the Company and its Subsidiaries, and their respective officers, directors, employees and securityholders, shall not have any liability or incur any losses, damages or penalties with respect thereto, and shall not be required to provide any information or make any representations with respect to (A) capital structure, (B) the incurrence of the Pre-Merger Financing Transaction, or (C) the manner in which Parent intends to operate the business of the Company and its Subsidiaries, or cause the business of the Company and its Subsidiaries to be operated, after the Closing.
(c) Subject to any applicable Legal Requirements, all non-public or other confidential information provided by the Company, its Subsidiary or any of their respective Representatives pursuant to this Agreement will be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Purchaser will be permitted to disclose such information to any Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties to the Financing and to any underwriters, initial purchasers or placement agents in connection with the Financing (and, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; or (ii) are subject to other confidentiality undertakings reasonably satisfactory to the Company and of which the Company is a beneficiary.
(d) If the Closing does not occur, promptly upon request by the Company, Parent will shall reimburse the Company for any documented and reasonable out-of-pocket costs and expenses (including attorneys’ fees) incurred by the Company or its Subsidiary in connection with the cooperation of the Company and its Subsidiary contemplated by Subsidiaries prior to the Closing for any costs or expenses incurred in connection with their compliance with this Section 6.16 (5.13. For the avoidance of doubt, it being understood is expressly acknowledged and agreed that the reimbursement set forth in obligation of Parent and Merger Sub to consummate the transactions contemplated by this Section 6.16(d) shall Agreement and the Ancillary Agreements is not apply to conditioned upon the successful consummation of any fees, costs, and expenses incurred by, or on behalf of, the Company, its Subsidiary Pre-Merger Financing Transaction or any of its Representatives in connection with its ordinary course financial reporting requirements or in the provision of data that, in each case, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding this Section 6.16)other “financing condition.
(e) The Parent shall indemnify, defend and hold harmless the Company Entities and their respective Representatives from and against any and all losses, damages, claims, interest, awards, judgments, penalties, costs and expenses suffered or incurred by any of them in connection with the Financing (including any action taken in accordance with this Section 6.16) and costs and expenses incurred in defending against the foregoing, except to the extent such losses, damages, claims, costs or expenses arise from the willful breach of this Agreement by the Company, as finally determined by a court of competent jurisdiction, or from fraud on the part of the Company.”
Appears in 1 contract
Financing Cooperation.
(a) Subject to Section 6.16(b), prior to Closing or termination of this Agreement, the Company shall, The parties acknowledge and shall cause its Subsidiaries and their respective Representatives to, use reasonable best efforts to reasonably cooperate with and reasonably assist Parent, at the Parent’s request, sole cost and expense, in connection with arranging, obtaining and syndicating any Financing and causing the conditions in the Financing Documents and any commitment letters entered into in connection with such Financing to be satisfied, including using reasonable best efforts in (i) assisting with, and furnishing information for the purposes of, the preparation of customary prospectuses (including any pro forma financial information and any information required under Article 18(2) of Commission Delegated Regulation (EU) 2019/980), offering documents, syndication documents and materials, including bank information memoranda and private placement memoranda, lender and investor presentations, rating agency materials and presentations and other customary marketing materials in connection with the Financing (all such documents and materials, collectively, the “Marketing Documents”) (it being understood and agreed that the Marketing Documents shall include (or otherwise be subject to) any customary exculpation language, as the case may be, with respect to the Company, its Affiliates and their respective Representatives), (ii) furnishing to the Parent as promptly as reasonably practicable financial statements and operational information (including consolidated financial statements for interim periods up until the Closing Date) that can be prepared without undue burden with respect to the Company and its Subsidiary as is reasonably requested by Parent (the “Required Information”), (iii) assisting in the preparation of schedules to collateral agreements by providing information of the Company Entities required to be made available on such schedules for purposes of the arrangement or consummation of the Financing, (iv) subject to any contractual agreement in effect, facilitating the pledging of collateral for the Financing, which shall not be required to be delivered or effective until at or promptly following the Effective Time, (v) subject to any contractual agreement in effect, obtaining the Payoff Letter, and the related lien releases, and instruments of termination or discharge, as applicable, required pursuant to Section 6.12, in each case which shall provide agree that, if sufficient funds are received by the financing sources under the Credit Agreement in order to pay off in full all obligations (other than the Excluded Obligations) in connection therewith on or secured thereby, such release, termination and/or discharge shall be effective, and (vi) furnishing Parent as promptly as reasonably practical (and at least three (3) business days prior to the Closing Date, it may be necessary for OPCH (or any one or more of its subsidiaries) to enter into financing transactions (including the raising of new financing in connection with all documentation the transactions contemplated by this Agreement) (any such financing transaction, a “Financing Transaction”). In connection with any Financing Transaction and other information related to the Company and its Subsidiary required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, that has been extent reasonably requested in writing by Parent OPCH or Merger Sub on or prior to the Closing Date, Amedisys agrees to promptly (i) use commercially reasonable efforts to assist and cooperate with OPCH with respect to the arrangement, structuring, marketing and execution of any such Financing Transaction, and (ii) provide OPCH such information and documents regarding Amedisys or its subsidiaries as may be reasonably necessary or desirable to consummate any such Financing Sources at least ten (10) business days Transaction; provided that in no event shall Amedisys or its subsidiaries or their respective Representatives be required to execute and deliver any pledge or security documents or certificates, documents or instruments or enter into a definitive Agreement, in each case, with respect to a Financing Transaction, that, in each case, is not contingent upon the Closing Date occurring or would be effective prior to the Closing Date. The Company hereby consents OPCH and Xxxxxx Sub acknowledge and agree that their obligations to consummate the use Merger and the other transactions contemplated by this Agreement are not conditioned on the consummation of its and its Subsidiary’s logos in connection with the any Financing so long as such logos are used solely (i) in a manner that is not intended to or that is not reasonably likely to harm or disparage the Company or its Subsidiary or the reputation or goodwill of the Company or its Subsidiary and (ii) solely in connection with a description of the Company, its business and products or the Merger.Transaction.
(b) Except as a result of fraud or willful misconduct by Amedisys, its subsidiaries or its or their Representatives, or arising from a material misstatement contained in information relating to Amedisys and its subsidiaries provided in writing by Amedisys, its subsidiaries or its or their Representatives for inclusion in definitive documentation related to a Financing Transaction, OPCH shall indemnify, defend and hold harmless Amedisys and its subsidiaries from and against any and all liabilities, losses, damages, claims, penalties, fines, costs, fees and expenses (including reasonable fees and expenses of one outside legal counsel, accountants, investment bankers, experts, consultants and other advisors and the cost of all filing fees and printing costs) actually suffered or incurred by them in connection with any cooperation requested by OPCH or required under this Agreement and provided by Amedisys under Section 6.15(a) and any information utilized in connection therewith. In addition, OPCH shall, promptly upon written request by Amedisys, reimburse Amedisys for all reasonable and documented out-of-pocket fees and expenses (including reasonable fees, costs and expenses of outside legal counsel, accountants, investment bankers, experts, consultants and other advisors, and the cost of all filing fees and printing costs) incurred by Amedisys or its subsidiaries in connection with any cooperation requested by OPCH or required under Section 6.15(a) and provided by Amedisys under Section 6.15(a). This Section 6.15(b) shall survive the Closing and termination of this Agreement, regardless of whether or not the Merger is consummated, and is intended to benefit, and may be enforced by Amedisys and its subsidiaries, who are each third-party beneficiaries of this Section 6.15(b).
(c) Notwithstanding the requirements of Section 6.16(a) or anything any provision in this Agreement Section 6.15 to the contrary, nothing in this Section 6.15 shall require (i) neither the Company nor any of its Affiliates or their respective Representatives shall be required to enter into, approve or perform (or commit to enter into, approve or performA) any certificate, document, agreement, or instrument, in each case which will be effective prior to the Effective Time, (ii) nothing herein shall require cooperation contemplated thereby to the extent that it would would, in the good faith determination of Amedisys, unreasonably interfere unreasonably with the business or operations of the Company Amedisys and its subsidiaries (taken as a whole), (B) Amedisys or any of its Affiliates subsidiaries to enter into any instrument or contract, or agree to any change or modification to any instrument or contract or take any action with respect to its existing indebtedness prior to the occurrence of the Closing that would be effective if the Closing does not occur, (C) Amedisys or any of its subsidiaries to deliver any notice of prepayment or redemption or similar notice that does not provide that such prepayment or redemption is conditioned upon the occurrence of the Closing, (D) Amedisys, any of its subsidiaries or their respective Affiliatesboards of directors (or equivalent bodies) to adopt any resolution, grant any approval or authorization or otherwise take any corporate or similar action (except for those that would not become effective until the Closing), (iiiE) none of the Company nor Amedisys or any of its Affiliates or their respective Representatives, will be required to (1) pay or commit subsidiaries to pay any commitment or other feefees, (2) reimburse any expenses or otherwise incur any costs liabilities or expenses or incur give any other liability (including any guarantee, indemnity or pledge) in connection with the Financing or the Marketing Documents indemnities prior to the Effective TimeClosing, (3F) provide any financial data other than the Required Information, Amedisys or (4) provide any legal opinion or reliance letters or any certificate (in the case of the Company or its Subsidiary that would be required to be delivered prior to the Effective Time), comfort letter or opinion of any of its Representativessubsidiaries to provide any pro forma adjustments to the financial statements reflecting the transactions contemplated or required hereunder, (ivG) nothing herein will involve any binding commitment by the Company, Amedisys or any of its Affiliates subsidiaries to take any action that would conflict with or violate Amedisys’s or any of their respective Representatives which commitment is not conditioned on the Effective Time and does not terminate without liability its subsidiaries’ organizational documents or any applicable Law, or result in a material breach of or material default under any Amedisys Material Contract, (H) Amedisys or any of its subsidiaries to take any action that would cause any condition to the Company, its Affiliates and their respective Representatives upon the termination Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement, and (vI) nothing herein will require the Company, Amedisys or any of its Affiliates or any of their respective Representatives subsidiaries to provide any information or take any action, the disclosure or taking of which would violate applicable Legal Requirements, is prohibited or legally privileged or (J) any fiduciary duty, any Contract or obligation Representative of confidentiality owing to a third party, or jeopardize the protection of the attorney-client privilege (or similar protections) held by the Company Amedisys or any of its Affiliates; provided that, if the Company does not provide or cause its Representatives to provide such access or such information in reliance on the foregoing, then the Company shall (1) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1) any Representative of the Company or its Subsidiary subsidiaries to deliver any certificate or opinion or take any other action under this Section 6.16 that could would reasonably be expected to result in personal liability to such individual Representative; (2) . Notwithstanding anything contained herein to the Board of Directors (or any committee or subcommittee thereof) or the board of directors, managers, managing member or any similar controlling body of any Subsidiary of the Company to approve (or otherwise take any corporate or similar action with respect to) any financing (including the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) the Company and its Subsidiary to take any action that would conflict with or violate its organizational or governance documents or any applicable Legal Requirements, or result in the contravention of, or that could reasonably be expected to result in a violation of breach of, or default undercontrary, any agreement to which the Company breach of Amedisys or its Subsidiary is a party.
(c) Subject to any applicable Legal Requirements, all non-public or other confidential information provided by the Company, its Subsidiary or any subsidiaries of their respective Representatives pursuant to this Agreement will be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Purchaser will be permitted to disclose such information to any Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties to the Financing and to any underwriters, initial purchasers or placement agents in connection with the Financing (and, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; or (ii) are subject to other confidentiality undertakings reasonably satisfactory to the Company and of which the Company is a beneficiary.
(d) If the Closing does not occur, promptly upon request by the Company, Parent will reimburse the Company for any documented and reasonable out-of-pocket costs and expenses (including attorneys’ fees) incurred by the Company or its Subsidiary in connection with the cooperation of the Company and its Subsidiary contemplated by obligations under this Section 6.16 (it being understood and agreed that the reimbursement set forth in this Section 6.16(d) 6.15 shall not apply to any fees, costs, and expenses incurred by, or on behalf of, the Company, its Subsidiary or any of its Representatives in connection with its ordinary course financial reporting requirements or in the provision of data that, in each case, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding this Section 6.16).
(e) The Parent shall indemnify, defend and hold harmless the Company Entities and their respective Representatives from and against any and all losses, damages, claims, interest, awards, judgments, penalties, costs and expenses suffered or incurred by any of them in connection with the Financing (including any action taken in accordance with this Section 6.16) and costs and expenses incurred in defending against the foregoing, except to the extent such losses, damages, claims, costs or expenses arise from the willful constitute a breach of this Agreement by the Company, as finally determined by for purposes of Article VIII or a court of competent jurisdiction, or from fraud on the part breach of the Companyconditions set forth in Article VII.
Appears in 1 contract
Samples: Merger Agreement
Financing Cooperation. (a) Subject Prior to Section 6.16(b), prior to Closing or termination of this Agreementthe Closing, the Company shallshall provide to Parent and Merger Sub, and shall cause its Subsidiaries and their respective Representatives to, and shall use its reasonable best efforts to cause the Representatives of the Company and its Subsidiaries to, provide to Parent and Merger Sub all cooperation reasonably cooperate with and requested by Parent that is necessary or reasonably assist Parent, at the Parent’s request, sole cost and expense, required in connection with arranging, obtaining and syndicating any Financing and causing the conditions in the Financing Documents and any commitment letters entered into in connection with such Financing to be satisfiedFinancing, including the following: (i) using reasonable best efforts to cause the Company's senior officers and other Representatives to participate in meetings, presentations, road shows, due diligence sessions (iincluding accounting due diligence sessions), drafting sessions and sessions with rating agencies; (ii) assisting with, and furnishing information for the purposes of, with the preparation of appropriate and customary prospectuses (including any pro forma financial information and any information required under Article 18(2) of Commission Delegated Regulation (EU) 2019/980)materials for rating agency presentations, offering documents, syndication documents and materials, including bank information memoranda and private placement memoranda, lender and investor presentations, rating agency materials and presentations and other customary marketing materials similar documents proper or advisable in connection with the Financing Financing; (all such iii) using its reasonable best efforts to assist with the preparation of any loan agreement, currency or interest hedging agreement, other definitive financing documents and materialson terms satisfactory to Parent, collectivelyprovided that (A) there shall be no obligation to deliver any certificate, the “Marketing Documents”) (it being understood and agreed that the Marketing Documents shall include (opinion, comfort letter or otherwise be subject to) any customary exculpation language, other document as the case may be, with respect a condition to the Company, Financing and (B) no obligation of the Company or any of its Affiliates Subsidiaries under any such document or agreement shall be effective until the Effective Time; (iv) using reasonable best efforts to furnish on a confidential basis to Parent and Merger Sub and their respective Representatives)financing sources, (ii) furnishing to the Parent as promptly as reasonably practicable practicable, with financial statements and operational other pertinent information (including consolidated financial statements for interim periods up until the Closing Date) that can be prepared without undue burden with respect to regarding the Company and its Subsidiary Subsidiaries as is may be reasonably requested by Parent (and that is within the “Required Information”), (iii) assisting Company's possession and in the preparation of schedules form that the Company customarily prepares and within the timeframes so prepared; (v) providing monthly financial statements (excluding footnotes) to collateral agreements by providing information the extent the Company customarily prepares such financial statements within the time such statements are customarily prepared; and (vi) using reasonable best efforts, as appropriate, to have its independent accountants provide its reasonable cooperation and assistance; provided, however, that nothing herein or in this Agreement shall require such cooperation to the extent it would unreasonably interfere with the business or operations of the Company Entities or its Subsidiaries; and provided further; that notwithstanding anything in this Agreement to the contrary, until the Effective Time occurs, neither the Company nor any of its Subsidiaries shall be required to be made available on such schedules for purposes adopt any resolutions, assume any obligations thereunder or pay any commitment or other similar fee or give any indemnities. The foregoing notwithstanding, nothing in this Section 6.13 shall limit or restrict the obligation of Parent and Merger Sub to implement this Agreement and no failure of the Company, and its subsidiaries or any of their respective Representatives to perform any of their respective obligations pursuant to this Section 6.13 shall directly or indirectly provide any basis for Parent or Merger Sub to fail to perform its obligations pursuant to this Agreement, unless any refusal by the Company to take action required pursuant to this Section 6.13 is intentionally done for the purpose of preventing the Financing from occurring prior to the End Date. Parent shall, promptly upon written request by the Company, reimburse the Company for all reasonable and documented out-of-pocket expenses to the extent such costs are incurred by the Company or its Subsidiaries at the written request of Parent in connection with the cooperation provided pursuant to this Section 6.13 and Parent shall indemnify and hold harmless the Company and its Subsidiaries and their respective directors, officers, employees and Representatives from and against any and all Costs suffered or incurred by them in connection with the arrangement or consummation of the Financing, (iv) subject to any contractual agreement except in effect, facilitating the pledging event that such Costs arose out of collateral for the Financing, which shall not be required to be delivered or effective until at or promptly following the Effective Time, (v) subject to any contractual agreement in effect, obtaining the Payoff Letter, a knowing and the related lien releases, material breach of this Section 6.13.(b). Parent and instruments of termination or discharge, as applicable, required pursuant to Section 6.12, in each case which shall provide that, if sufficient funds are received by the financing sources under the Credit Agreement in order to pay off in full all obligations (other than the Excluded Obligations) in connection therewith or secured thereby, such release, termination and/or discharge shall be effective, Merger Sub acknowledge and (vi) furnishing Parent as promptly as reasonably practical (and at least three (3) business days prior to agree that the Closing Dateis not conditioned on the availability of the Required Transaction Funds.
(c) with all documentation and other information related to the Company and its Subsidiary required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, that has been reasonably requested in writing by Parent or its Financing Sources at least ten (10) business days prior to the Closing Date. The Company hereby consents to the use of its and its Subsidiary’s Subsidiaries’ logos in connection with the Financing so long as Financing; provided that such logos are used solely (i) in a manner that is not intended to or that is not reasonably likely to harm or disparage the Company or any of its Subsidiary Subsidiaries or the reputation or goodwill of the Company or its Subsidiary and (ii) solely in connection with a description of the Company, its business and products or the Merger.
(b) Notwithstanding the requirements of Section 6.16(a) or anything in this Agreement to the contrary, (i) neither the Company nor any of its Affiliates Subsidiaries and its or their respective Representatives shall be required to enter into, approve marks or perform (or commit to enter into, approve or perform) any certificate, document, agreement, or instrument, in each case which will be effective prior to create the Effective Time, (ii) nothing herein shall require cooperation contemplated thereby to the extent it would interfere unreasonably with the business or operations of impression that the Company or has any of its Affiliates or their respective Affiliates, (iii) none of the Company nor any of its Affiliates or their respective Representatives, will be required to (1) pay or commit to pay any commitment or other fee, (2) reimburse or incur any costs or expenses or incur any other liability (including any guarantee, indemnity or pledge) in connection with the Financing or the Marketing Documents prior to the Effective Time, (3) provide any financial data other than the Required Information, or (4) provide any legal opinion or reliance letters or any certificate (in the case of the Company or its Subsidiary that would be required to be delivered prior to the Effective Time), comfort letter or opinion of any of its Representatives, (iv) nothing herein will involve any binding commitment by the Company, any of its Affiliates or any of their respective Representatives which commitment is not conditioned on obligations thereunder unless and until the Effective Time and does not terminate without liability to the Company, its Affiliates and their respective Representatives upon the termination of this Agreement, and (v) nothing herein will require the Company, any of its Affiliates or any of their respective Representatives to provide any information or take any action, the disclosure or taking of which would violate applicable Legal Requirements, any fiduciary duty, any Contract or obligation of confidentiality owing to a third party, or jeopardize the protection of the attorney-client privilege (or similar protections) held by the Company or any of its Affiliates; provided that, if the Company does not provide or cause its Representatives to provide such access or such information in reliance on the foregoing, then the Company shall (1) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1) any Representative of the Company or its Subsidiary to deliver any certificate or opinion or take any other action under this Section 6.16 that could reasonably be expected to result in personal liability to such Representative; (2) the Board of Directors (or any committee or subcommittee thereof) or the board of directors, managers, managing member or any similar controlling body of any Subsidiary of the Company to approve (or otherwise take any corporate or similar action with respect to) any financing (including the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) the Company and its Subsidiary to take any action that would conflict with or violate its organizational or governance documents or any applicable Legal Requirements, or result in the contravention of, or that could reasonably be expected to result in a violation of breach of, or default under, any agreement to which the Company or its Subsidiary is a partyoccurs.
(c) Subject to any applicable Legal Requirements, all non-public or other confidential information provided by the Company, its Subsidiary or any of their respective Representatives pursuant to this Agreement will be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Purchaser will be permitted to disclose such information to any Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties to the Financing and to any underwriters, initial purchasers or placement agents in connection with the Financing (and, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; or (ii) are subject to other confidentiality undertakings reasonably satisfactory to the Company and of which the Company is a beneficiary.
(d) If the Closing does not occur, promptly upon request by the Company, Parent will reimburse the Company for any documented and reasonable out-of-pocket costs and expenses (including attorneys’ fees) incurred by the Company or its Subsidiary in connection with the cooperation of the Company and its Subsidiary contemplated by this Section 6.16 (it being understood and agreed that the reimbursement set forth in this Section 6.16(d) shall not apply to any fees, costs, and expenses incurred by, or on behalf of, the Company, its Subsidiary or any of its Representatives in connection with its ordinary course financial reporting requirements or in the provision of data that, in each case, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding this Section 6.16).
(e) The Parent shall indemnify, defend and hold harmless the Company Entities and their respective Representatives from and against any and all losses, damages, claims, interest, awards, judgments, penalties, costs and expenses suffered or incurred by any of them in connection with the Financing (including any action taken in accordance with this Section 6.16) and costs and expenses incurred in defending against the foregoing, except to the extent such losses, damages, claims, costs or expenses arise from the willful breach of this Agreement by the Company, as finally determined by a court of competent jurisdiction, or from fraud on the part of the Company.
Appears in 1 contract
Financing Cooperation. (a) Subject to Section 6.16(b), prior to Closing or termination of this Agreement, the The Company shall, and shall cause its Subsidiaries subsidiaries and its and their respective Representatives to, use its and their respective commercially reasonable best efforts to provide such cooperation as may be reasonably cooperate with and reasonably assist Parent, at the Parent’s request, sole cost and expense, requested by Parent or Merger Sub in connection with arrangingthe Debt Financing made by Parent or any of its subsidiaries, obtaining and syndicating any Financing and causing the conditions in the Financing Documents and any commitment letters entered into in connection with such Financing to be satisfiedincluding, including as applicable, by: (i) using reasonable best efforts to, upon reasonable advance notice, cause the Company’s senior management to participate in (i) assisting witha reasonable number of due diligence meetings, drafting sessions, rating agency presentations, lender meetings, investor road shows and furnishing information meetings with parties acting as arrangers, bookrunners, underwriters, initial purchasers, placement agents and/or other lenders and investors for the purposes ofDebt Financing; (ii) providing such customary historical financial and other customary pertinent information with respect to the Company and its subsidiaries (including, without limitation, information required by Regulation S-X and Regulation S-K under the preparation of customary prospectuses Securities Act) as may be reasonably requested by Parent for use in connection with the Debt Financing and 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 with respect to the Company and its subsidiaries; (including any iii) providing information regarding the Company and its subsidiaries reasonably necessary to assist Parent in preparing pro forma financial information statements if Parent determines such pro forma financial statements are legally required or customary in connection with the Debt Financing, it being understood that the Company need only assist in the preparation thereof, but shall not be required to independently prepare any separate pro forma financial statements and any information shall not be required under Article 18(2to change its fiscal year; (iv) providing reasonable assistance to the Parent and its subsidiaries in connection with the preparation by the Parent of Commission Delegated Regulation (EU) 2019/980)offering memoranda, offering documents, syndication documents and materials, including bank information memoranda and private placement memoranda, prospectuses, prospectus supplements, registration statements, bank confidential information memoranda, lender and investor presentations, road show materials, rating agency materials and presentations and other customary marketing materials similar documents and materials, in each case, under this subsection (iv), in connection with the Debt Financing (all such and reasonably assisting with the preparation of the definitive documents and materialsfor the Debt Financing, collectivelyincluding by providing information reasonably necessary for the completion of any schedules thereto, the “Marketing Documents”) (it being understood and agreed that the Marketing Documents shall include (or otherwise be subject to) any customary exculpation language, as the in each case may be, with respect to the Companyextent, its Affiliates and their respective Representatives), (ii) furnishing solely to the Parent as promptly as reasonably practicable financial statements and operational extent, such materials relate to information (including consolidated financial statements for interim periods up until the Closing Date) that can be prepared without undue burden with respect to concerning the Company and its Subsidiary as is reasonably requested by Parent (the “Required Information”), (iii) assisting in the preparation of schedules to collateral agreements by providing information of the Company Entities required to be made available on such schedules for purposes of the arrangement or consummation of the Financing, (iv) subject to any contractual agreement in effect, facilitating the pledging of collateral for the Financing, which shall not be required to be delivered or effective until at or promptly following the Effective Time, subsidiaries; (v) subject using commercially reasonable efforts to any contractual agreement cause the Company’s accountants to cooperate with Parent, including by participating in effectaccounting due diligence sessions upon reasonable advance notice, obtaining using reasonable best efforts to obtain the Payoff Letterconsent of, and the related lien releases, and instruments Company’s accountants (including by providing customary for Parent’s use of termination or discharge, as applicable, required pursuant to Section 6.12, in each case which shall provide that, if sufficient funds are received by the financing sources under the Credit Agreement in order to pay off in full all obligations (other than the Excluded Obligations) in connection therewith or secured thereby, such release, termination and/or discharge shall be effective, and (vi) furnishing Parent as promptly as reasonably practical (and at least three (3) business days prior to the Closing Date) with all documentation and other information related to financial statements of the Company and its Subsidiary required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, that has been reasonably requested subsidiaries in writing by Parent any marketing or its Financing Sources at least ten (10) business days prior offering materials to the Closing Date. The Company hereby consents to the use of its and its Subsidiary’s logos be used in connection with the Financing so long as such logos are used solely Debt Financing; (ivi) in a manner that is not intended to or that is not cooperating reasonably likely to harm or disparage the Company or its Subsidiary or the reputation or goodwill of the Company or its Subsidiary and (ii) solely in connection with a description of the Companyany customary due diligence requests by Parent, its business Financing Sources and products or the Merger.their respective counsel; (vii) reasonably assisting Parent in obtaining corporate, family, credit, facility -45-
(b) Notwithstanding the requirements of anything to contrary contained in Section 6.16(a) or anything in this Agreement to the contrary, (i) neither the Company nor any of its Affiliates or their respective Representatives shall be required to enter into, approve or perform (or commit to enter into, approve or perform) any certificate, document, agreement, or instrument6.11(a), in each case which will be effective prior to the Effective Time, (ii) nothing herein no event shall require cooperation contemplated thereby to the extent it would interfere unreasonably with the business or operations of the Company or any of its Affiliates or their respective Affiliates, (iii) none of the Company nor any of its Affiliates or their respective Representatives, will Subsidiaries be required to (1) pay bear any cost or commit to expense, pay any commitment fee, or incur any other feeactual or potential liability in connection with the Debt Financing prior to the Effective Time for which it is not reimbursed or is not otherwise indemnified by or on behalf of Parent, (2) reimburse or incur take any costs or expenses or incur any other liability (including any guarantee, indemnity or pledge) in connection with the Financing or the Marketing Documents prior actions to the Effective Timeextent such actions would unreasonably interfere with their respective ongoing business or operations, (3) provide any financial data other than the Required Information, or (4) provide any legal opinion or reliance letters or any certificate (in the case of the Company or its Subsidiary that would be required to be delivered prior to the Effective Time), comfort letter or opinion of any of its Representatives, (iv) nothing herein will involve any binding commitment by the Company, any of its Affiliates or any of their respective Representatives which commitment is not conditioned on the Effective Time and does not terminate without liability to the Company, its Affiliates and their respective Representatives upon the termination of this Agreement, and (v) nothing herein will require the Company, any of its Affiliates or any of their respective Representatives to provide any information or take any action, the disclosure or taking of which would violate applicable Legal Requirements, any fiduciary duty, any Contract or obligation of confidentiality owing to a third party, or jeopardize the protection of the attorney-client privilege (or similar protections) held by the Company or any of its Affiliates; provided that, if the Company does not provide or cause its Representatives to provide such access or such information in reliance on the foregoing, then the Company shall (1) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1) any Representative of the Company or its Subsidiary to deliver any certificate or opinion or take any other action under this Section 6.16 that could reasonably be expected to result in personal liability to such Representative; (2) the Board of Directors (or any committee or subcommittee thereof) or the board of directors, managers, managing member or any similar controlling body of any Subsidiary of the Company to approve (or otherwise take any corporate or similar action with respect to) any financing (including the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) the Company and its Subsidiary to take any action that would be effective prior to the Closing Date and would reasonably be expected to conflict with or violate its organizational or governance documents or any applicable Legal Requirementswith, or result in the contravention of, any violation or that could reasonably be expected to result in a violation of breach of, or default under(with or without notice or lapse of time, or both) under any agreement of their respective organizational documents or any applicable laws or any other material contracts to which the Company or its Subsidiary such Person is a party, (4) become an issuer or other obligor with respect to the Debt Financing prior to the Closing Date, (5) pledge any assets or collateral, execute any definitive agreement in respect of the Debt Financing or any closing certificate or other agreement, or incur any liability or indebtedness in connection with the Debt Financing prior to the Closing Date, in each case, that would be effective prior to the Closing Date, or (6) execute or deliver, or take any corporate or other action to adopt or approve, any document, agreement, certificate or instrument with respect to the Debt Financing that will be effective before the Closing Date.
(c) Subject to any applicable Legal Requirements, all non-public or other confidential information provided by the Company, its Subsidiary or any of their respective Representatives If this Agreement is terminated pursuant to this Agreement will be kept confidential in accordance with the Confidentiality AgreementArticle VIII, except that Parent and Purchaser will be permitted to disclose such information to any Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties to the Financing and to any underwriters, initial purchasers or placement agents in connection with the Financing shall promptly (and, in each caseany event, to their respective counsel and auditorswithin 14 days) so long as such Persons (i) agree to be bound by following the Confidentiality Agreement as receipt of a “Representative” thereunder as if parties thereto; or (ii) are subject to other confidentiality undertakings reasonably satisfactory to the Company and of which the Company is a beneficiary.
(d) If the Closing does not occur, promptly upon written request by from the Company, Parent will reimburse the Company for any all reasonable and documented and reasonable out-of-pocket costs and expenses (including attorneys’ feesreasonable and documented fees of its attorneys and independent accountants) incurred by the Company or any of its Subsidiary Subsidiaries in connection with the cooperation of the Company and its Subsidiary Subsidiaries contemplated by this Section 6.16 (it being understood and agreed that the reimbursement set forth in this Section 6.16(d) shall not apply to any fees, costs, and expenses incurred by, or on behalf of, the Company, its Subsidiary or any of its Representatives in connection with its ordinary course financial reporting requirements or in the provision of data that, in each case, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding this Section 6.16).
(e) The 6.11. Parent shall indemnify, defend and hold harmless the Company Entities Company, its Subsidiaries and their respective Representatives from and against any and all losses, damages, claims, interest, awards, judgmentsfines, penalties, expenses, fees, costs and amounts paid in settlement (including reasonable and documented fees and reasonable and documented expenses of counsel) suffered or incurred by any of them in connection with the Financing (including any action taken in accordance with cooperation of the Company and its Subsidiaries pursuant to this Section 6.16) and costs and expenses incurred in defending against the foregoing, 6.11 except to the extent such lossessuffered or incurred as a result of the bad faith, damages, claims, costs gross negligence or expenses arise from the willful breach misconduct of this Agreement by the Company, as finally determined by a court its Subsidiaries or any of competent jurisdiction, or from fraud on the part of the Company.their respective Representatives. SECTION
Appears in 1 contract
Samples: Merger Agreement (Diversified Restaurant Holdings, Inc.)
Financing Cooperation. (a) Subject Prior to Section 6.16(b), prior to Closing or termination of this Agreementthe Closing, the Company shall, and shall cause each of its Subsidiaries and their respective Representatives to, use reasonable best efforts to reasonably cooperate with provide, and reasonably assist Parentshall use reasonable best efforts to cause its Representatives to provide, at the Parent’s request, sole cost and expenseexpense of Parent, in connection such customary assistance with arranging, obtaining and syndicating any Financing and causing the conditions Parent’s debt financing in the Financing Documents form of term loans and any commitment letters entered into in connection with such Financing to be satisfied, including using reasonable best efforts in revolving credit facilities (i) assisting with, and furnishing information for the purposes of, the preparation of customary prospectuses (including any pro forma financial information and any information required under Article 18(2) of Commission Delegated Regulation (EU) 2019/980), offering documents, syndication documents and materials, including bank information memoranda and private placement memoranda, lender and investor presentations, rating agency materials and presentations and other customary marketing materials in connection with the Financing (all such documents and materials, collectively, the “Marketing DocumentsDebt Financing”) (it being understood and agreed that the Marketing Documents shall include (or otherwise be subject to) any customary exculpation language, as the case may be, with respect to the Company, its Affiliates and their respective Representatives), (ii) furnishing to the Parent as promptly as reasonably practicable financial statements and operational information (including consolidated financial statements for interim periods up until the Closing Date) that can be prepared without undue burden with respect to the Company and its Subsidiary as is reasonably requested by Parent Parent, its Affiliates and its and their respective Representatives, in each case, in connection with the arrangement of, and the satisfaction on a timely basis of all relevant conditions precedent to, the Debt Financing (provided that such requested cooperation does not unreasonably interfere with the “Required Information”ongoing operations of the Company or any of its Subsidiaries). Such assistance shall include, but not be limited to, using reasonable best efforts with respect to: (iiii) assisting in with the preparation of schedules to collateral agreements the Marketing Material and rating agency presentations; (ii) participation by providing information management of the Company Entities required to be made available on such schedules for purposes and its Subsidiaries in a reasonable number of the arrangement or consummation of the Financing, (iv) subject to any contractual agreement in effect, facilitating the pledging of collateral for the Financing, which shall not be required to be delivered or effective until at or promptly following the Effective Time, (v) subject to any contractual agreement in effect, obtaining the Payoff Letter, rating agency presentations and the related lien releases, and instruments of termination or discharge, as applicable, required pursuant to Section 6.12meetings with prospective lenders, in each case which shall provide that, if sufficient funds are received by the financing sources under the Credit Agreement upon reasonable prior notice and at times and locations to be mutually agreed in order to pay off in full all obligations good faith; (other than the Excluded Obligationsiii) delivering financial and operational information reasonably necessary for (or otherwise reasonably requested by) Parent in connection therewith or secured thereby, such release, termination and/or discharge shall be effective, with arranging and consummating the Debt Financing; (viiv) furnishing Parent as promptly as reasonably practical (and its Affiliates at least three (3) business days four Business Days prior to the Closing Date) Date with all documentation and other information related and materials requested in writing at least nine Business Days prior to the Company and its Subsidiary Closing Date that is required by regulatory authorities Governmental Entities under applicable “beneficial ownership,” “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act; (v) assisting Parent and its Affiliates in connection with the preparation by Parent and/or its Affiliates and its and their Representatives of the Debt Financing Documents (including executing and delivering the Debt Financing Documents with respect thereto), the borrowing of loans and the provision of guarantees and security interests to support the Debt Financing by the Company and its Subsidiaries; (vi) cooperating with the Debt Financing Source’s reasonable due diligence requests, (vii) cooperating with Parent’s legal counsel (which may include local, regulatory or other special counsel) in connection with any legal opinions that has been such counsel may be required to deliver in connection with the Debt Financing, (viii) cooperating with Parent and its Affiliates in their respective efforts to obtain corporate and facilities ratings, consents, landlord and bailee waivers, estoppel and non-disturbance agreements and similar consents as reasonably requested in writing by Parent or and (ix) otherwise cooperating with Parent and its Financing Sources at least ten (10) business days prior Affiliates to satisfy the conditions precedent to the Closing DateDebt Financing to the extent within the control of the Company, its Affiliates and their respective Representatives. For the avoidance of doubt, information provided by the Company and its Subsidiaries in connection with the Debt 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). The Company and its Subsidiaries hereby consents consent to the use of its all of the Company and its Subsidiary’s Subsidiaries’ logos in connection with the Financing so long as Debt Financing, provided that such logos are used solely (i) in a manner that is not intended to or that is not reasonably likely to harm or disparage the Company and its Subsidiaries, their respective Affiliates or its Subsidiary their respective business, or the reputation or goodwill thereof. Parent and Merger Sub acknowledge and agree that the obtaining of the Company or its Subsidiary and (ii) solely in connection with Debt Financing shall not constitute a description of the Company, its business and products or the Merger.
(b) Notwithstanding the requirements of Section 6.16(a) or anything in this Agreement to the contrary, (i) neither the Company nor any of its Affiliates or their respective Representatives shall be required to enter into, approve or perform (or commit to enter into, approve or perform) any certificate, document, agreement, or instrument, in each case which will be effective prior to the Effective Time, (ii) nothing herein shall require cooperation contemplated thereby to the extent it would interfere unreasonably with the business or operations of the Company or any of its Affiliates or their respective Affiliates, (iii) none of the Company nor any of its Affiliates or their respective Representatives, will be required to (1) pay or commit to pay any commitment or other fee, (2) reimburse or incur any costs or expenses or incur any other liability (including any guarantee, indemnity or pledge) in connection with the Financing or the Marketing Documents prior to the Effective Time, (3) provide any financial data other than the Required Information, or (4) provide any legal opinion or reliance letters or any certificate (in the case of the Company or its Subsidiary that would be required to be delivered prior to the Effective Time), comfort letter or opinion of any of its Representatives, (iv) nothing herein will involve any binding commitment by the Company, any of its Affiliates or any of their respective Representatives which commitment is not conditioned on the Effective Time and does not terminate without liability to the Company, its Affiliates and their respective Representatives upon the termination of this Agreement, and (v) nothing herein will require the Company, any of its Affiliates or any of their respective Representatives to provide any information or take any action, the disclosure or taking of which would violate applicable Legal Requirements, any fiduciary duty, any Contract or obligation of confidentiality owing to a third party, or jeopardize the protection of the attorney-client privilege (or similar protections) held by the Company or any of its Affiliates; provided that, if the Company does not provide or cause its Representatives to provide such access or such information in reliance on the foregoing, then the Company shall (1) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1) any Representative of the Company or its Subsidiary to deliver any certificate or opinion or take any other action under this Section 6.16 that could reasonably be expected to result in personal liability to such Representative; (2) the Board of Directors (or any committee or subcommittee thereof) or the board of directors, managers, managing member or any similar controlling body of any Subsidiary of the Company to approve (or otherwise take any corporate or similar action with respect to) any financing (including the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) the Company and its Subsidiary to take any action that would conflict with or violate its organizational or governance documents or any applicable Legal Requirements, or result in the contravention of, or that could reasonably be expected to result in a violation of breach of, or default under, any agreement to which the Company or its Subsidiary is a party.
(c) Subject to any applicable Legal Requirements, all non-public or other confidential information provided by the Company, its Subsidiary or any of their respective Representatives pursuant to this Agreement will be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Purchaser will be permitted to disclose such information to any Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties to the Financing and to any underwriters, initial purchasers or placement agents in connection with the Financing (and, in each case, condition to their respective counsel and auditors) so long as such Persons (i) agree obligation to be bound by close the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; or (ii) are subject to other confidentiality undertakings reasonably satisfactory to the Company and of which the Company is a beneficiaryTransactions.
(d) If the Closing does not occur, promptly upon request by the Company, Parent will reimburse the Company for any documented and reasonable out-of-pocket costs and expenses (including attorneys’ fees) incurred by the Company or its Subsidiary in connection with the cooperation of the Company and its Subsidiary contemplated by this Section 6.16 (it being understood and agreed that the reimbursement set forth in this Section 6.16(d) shall not apply to any fees, costs, and expenses incurred by, or on behalf of, the Company, its Subsidiary or any of its Representatives in connection with its ordinary course financial reporting requirements or in the provision of data that, in each case, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding this Section 6.16).
(e) The Parent shall indemnify, defend and hold harmless the Company Entities and their respective Representatives from and against any and all losses, damages, claims, interest, awards, judgments, penalties, costs and expenses suffered or incurred by any of them in connection with the Financing (including any action taken in accordance with this Section 6.16) and costs and expenses incurred in defending against the foregoing, except to the extent such losses, damages, claims, costs or expenses arise from the willful breach of this Agreement by the Company, as finally determined by a court of competent jurisdiction, or from fraud on the part of the Company.
Appears in 1 contract
Financing Cooperation. (a) Subject Prior to Section 6.16(b), prior to Closing or termination of this Agreementthe Closing, the Company shallPartnership Parties shall use commercially reasonable efforts to provide, and shall use commercially reasonable efforts to cause its Subsidiaries their respective Representatives and the Partnership Entities and their respective Representatives toto provide, use reasonable best efforts to reasonably cooperate assistance with and reasonably assist Parent, at any financing of the Parent’s request, sole cost and expense, in connection with arranging, obtaining and syndicating any Financing and causing the conditions in the Financing Documents and any commitment letters entered into in connection with such Financing to be satisfied, including using reasonable best efforts in (i) assisting with, and furnishing information for the purposes of, the preparation of customary prospectuses (Parent Parties or their Affiliates including any pro forma financial information and any information required under Article 18(2) of Commission Delegated Regulation (EU) 2019/980), offering documents, syndication documents and materials, including bank information memoranda and private placement memoranda, lender and investor presentations, rating agency materials and presentations and other customary marketing materials debt financing in connection with the Financing Merger (all such documents and materials, collectively, the “Marketing DocumentsDebt Financing”) (it being understood and agreed that the Marketing Documents shall include (or otherwise be subject to) any customary exculpation language, as the case may be, with respect to the Company, its Affiliates and their respective Representatives), (ii) furnishing to the Parent as promptly as reasonably practicable financial statements and operational information (including consolidated financial statements for interim periods up until the Closing Date) that can be prepared without undue burden with respect to the Company and its Subsidiary as is reasonably requested by the Parent Parties or their Affiliates. For the avoidance of doubt, obtaining any Debt Financing or such other financing is not and shall not be a condition to the Closing. If any Debt Financing has not been obtained, the Parent Parties will each continue to be obligated, subject to the satisfaction or waiver of the conditions set forth in Article VII, to consummate the Merger. Parent shall, upon request by the Partnership Parties, their current and future Affiliates, and each of their respective current and future direct and indirect equityholders, members, partners and Representatives (collectively, the “Required InformationFinancing Indemnified Parties”), (iii) assisting in the preparation of schedules to collateral agreements by providing information of the Company Entities required to be made available on or any Partnership Entity, reimburse such schedules for purposes of the arrangement Financing Indemnified Parties or consummation of the Financing, (iv) subject to any contractual agreement in effect, facilitating the pledging of collateral for the Financing, which shall not be required to be delivered or effective until at or promptly following the Effective Time, (v) subject to any contractual agreement in effect, obtaining the Payoff Letter, and the related lien releases, and instruments of termination or dischargePartnership Entities, as applicable, required pursuant to Section 6.12, in each case which shall provide that, if sufficient funds are received by the financing sources under the Credit Agreement in order to pay off in full for all obligations (other than the Excluded Obligations) in connection therewith or secured thereby, such release, termination and/or discharge shall be effective, reasonable and (vi) furnishing Parent as promptly as reasonably practical (and at least three (3) business days prior to the Closing Date) with all documentation and other information related to the Company and its Subsidiary required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, that has been reasonably requested in writing by Parent or its Financing Sources at least ten (10) business days prior to the Closing Date. The Company hereby consents to the use of its and its Subsidiary’s logos in connection with the Financing so long as such logos are used solely (i) in a manner that is not intended to or that is not reasonably likely to harm or disparage the Company or its Subsidiary or the reputation or goodwill of the Company or its Subsidiary and (ii) solely in connection with a description of the Company, its business and products or the Merger.
(b) Notwithstanding the requirements of Section 6.16(a) or anything in this Agreement to the contrary, (i) neither the Company nor any of its Affiliates or their respective Representatives shall be required to enter into, approve or perform (or commit to enter into, approve or perform) any certificate, document, agreement, or instrument, in each case which will be effective prior to the Effective Time, (ii) nothing herein shall require cooperation contemplated thereby to the extent it would interfere unreasonably with the business or operations of the Company or any of its Affiliates or their respective Affiliates, (iii) none of the Company nor any of its Affiliates or their respective Representatives, will be required to (1) pay or commit to pay any commitment or other fee, (2) reimburse or incur any costs or expenses or incur any other liability (including any guarantee, indemnity or pledge) in connection with the Financing or the Marketing Documents prior to the Effective Time, (3) provide any financial data other than the Required Information, or (4) provide any legal opinion or reliance letters or any certificate (in the case of the Company or its Subsidiary that would be required to be delivered prior to the Effective Time), comfort letter or opinion of any of its Representatives, (iv) nothing herein will involve any binding commitment by the Company, any of its Affiliates or any of their respective Representatives which commitment is not conditioned on the Effective Time and does not terminate without liability to the Company, its Affiliates and their respective Representatives upon the termination of this Agreement, and (v) nothing herein will require the Company, any of its Affiliates or any of their respective Representatives to provide any information or take any action, the disclosure or taking of which would violate applicable Legal Requirements, any fiduciary duty, any Contract or obligation of confidentiality owing to a third party, or jeopardize the protection of the attorney-client privilege (or similar protections) held by the Company or any of its Affiliates; provided that, if the Company does not provide or cause its Representatives to provide such access or such information in reliance on the foregoing, then the Company shall (1) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1) any Representative of the Company or its Subsidiary to deliver any certificate or opinion or take any other action under this Section 6.16 that could reasonably be expected to result in personal liability to such Representative; (2) the Board of Directors (or any committee or subcommittee thereof) or the board of directors, managers, managing member or any similar controlling body of any Subsidiary of the Company to approve (or otherwise take any corporate or similar action with respect to) any financing (including the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) the Company and its Subsidiary to take any action that would conflict with or violate its organizational or governance documents or any applicable Legal Requirements, or result in the contravention of, or that could reasonably be expected to result in a violation of breach of, or default under, any agreement to which the Company or its Subsidiary is a party.
(c) Subject to any applicable Legal Requirements, all non-public or other confidential information provided by the Company, its Subsidiary or any of their respective Representatives pursuant to this Agreement will be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Purchaser will be permitted to disclose such information to any Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties to the Financing and to any underwriters, initial purchasers or placement agents in connection with the Financing (and, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; or (ii) are subject to other confidentiality undertakings reasonably satisfactory to the Company and of which the Company is a beneficiary.
(d) If the Closing does not occur, promptly upon request by the Company, Parent will reimburse the Company for any documented and reasonable out-of-pocket costs and expenses (incurred by such Financing Indemnified Parties or Partnership Entities, as applicable, including attorneysreasonable attorney’s fees and accountants’ fees) incurred by the Company or its Subsidiary , in connection with the cooperation of the Company and its Subsidiary contemplated by required under or with respect to requests made under this Section 6.16 (it being understood 6.4. If any Debt Financing commitment has been obtained, the Parent Parties shall use reasonable best efforts to take, or cause to be taken, all actions and agreed that to do, or cause to be done, all things necessary, proper or advisable to consummate and obtain the reimbursement set forth in this Section 6.16(d) shall not apply financing pursuant to any feessuch commitment, costs, and expenses incurred by, or on behalf of, including to enforce the Company, its Subsidiary or Parent Parties’ rights under the terms of any of its Representatives in connection with its ordinary course financial reporting requirements or in the provision of data that, in each case, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding this Section 6.16)such Debt Financing.
(e) The Parent shall indemnify, defend and hold harmless the Company Entities and their respective Representatives from and against any and all losses, damages, claims, interest, awards, judgments, penalties, costs and expenses suffered or incurred by any of them in connection with the Financing (including any action taken in accordance with this Section 6.16) and costs and expenses incurred in defending against the foregoing, except to the extent such losses, damages, claims, costs or expenses arise from the willful breach of this Agreement by the Company, as finally determined by a court of competent jurisdiction, or from fraud on the part of the Company.
Appears in 1 contract
Financing Cooperation. (a) Subject Prior to Section 6.16(b), prior to Closing or termination of this Agreementthe Closing, the Company shallshall use its reasonable best efforts to provide, and shall cause each Company Subsidiary to use its Subsidiaries respective reasonable best efforts to provide, and their respective Representatives toshall use its reasonable best efforts to cause its officers, directors, employees, accountants, consultants, legal counsel and agents to use reasonable best efforts to reasonably cooperate with and reasonably assist Parent, at the Parent’s request, sole cost and expense, in connection with arranging, obtaining and syndicating any Financing and causing the conditions in the Financing Documents and any commitment letters entered into in connection with provide such Financing to be satisfied, including using reasonable best efforts in (i) assisting with, and furnishing information for the purposes of, the preparation of customary prospectuses (including any pro forma financial information and any information required under Article 18(2) of Commission Delegated Regulation (EU) 2019/980), offering documents, syndication documents and materials, including bank information memoranda and private placement memoranda, lender and investor presentations, rating agency materials and presentations and other customary marketing materials cooperation in connection with the arrangement of the Debt Financing (all such documents and materials, collectively, the “Marketing Documents”) (it being understood and agreed that the Marketing Documents shall include (by Parent or otherwise Purchaser as may be subject to) any customary exculpation languagereasonably requested by Parent or Purchaser, as the case may be, with respect ; including its reasonable best efforts to: (A) subject to the CompanyConfidentiality Agreement, its Affiliates furnish Parent and their respective Representatives), (ii) furnishing to the Parent as promptly as Purchaser on a reasonably practicable timely basis with financial statements and operational operating information (including consolidated financial statements for interim periods up until the Closing Date) that can be prepared without undue burden with respect to regarding the Company Group as Parent shall reasonably request in writing and its Subsidiary as that is required under the Debt Financing Documents or that is reasonably requested by Parent (the “Required Information”), (iii) assisting required in connection with the preparation of schedules to collateral agreements by providing information customary financing documentation, (B) assist with the preparation of the Company Entities required to be made available on such Debt Financing Documents, including the schedules for purposes of the arrangement or consummation of the Financingand exhibits thereto, (iv) subject to any contractual agreement in effecteach case, facilitating the pledging of collateral for the Financing, which shall not be customarily required to be delivered or effective until at or promptly following the Effective Timeunder such definitive financing documentation, (v) subject to any contractual agreement in effect, obtaining the Payoff Letter, and the related lien releases, and instruments of termination or discharge, as applicable, required pursuant to Section 6.12, in each case which shall provide that, if sufficient funds are received by the financing sources under the Credit Agreement in order to pay off in full all obligations (other than the Excluded Obligations) in connection therewith or secured thereby, such release, termination and/or discharge shall be effective, and (vi) furnishing Parent as promptly as reasonably practical (and at least three (3) business days prior to the Closing Date) with all documentation and other information related to the Company and its Subsidiary required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Actprovided, that has been reasonably requested in writing by Parent or its Financing Sources at least ten (10) business days prior to the Closing Date. The Company hereby consents to the use of its and its Subsidiary’s logos in connection with the Financing so long as such logos are used solely (i) in a manner that is not intended to or that is not reasonably likely to harm or disparage the Company or its Subsidiary or the reputation or goodwill no obligation of the Company Group under any such document or its Subsidiary agreement shall be effective until the Closing, (C) furnish the Debt Financing Deliverables and (iiD) solely in connection with a description facilitate the pledge of collateral; provided, that no such pledge shall be effective until the Company, its business and products or the Merger.
(b) Closing. Notwithstanding the requirements of Section 6.16(a) or anything in this Agreement to the contrary, (i) neither none of the Company, the Company nor any of its Affiliates Subsidiaries or their respective Representatives Affiliates shall be required to provide any financial information in a form not customarily prepared by it with respect to a particular period, (ii) none of the Company, the Company Subsidiaries or their respective Affiliates shall be required to deliver any solvency opinions or legal opinions in connection with the Debt Financing, (iii) none of the Company, the Company Subsidiaries or their respective Affiliates or representatives, or any of their respective directors, officers, employees or agents shall be required to execute or enter into, approve into any Debt Financing Documents or perform (or commit to enter into, approve or perform) any certificate, documentinstrument, agreement, agreement or instrumentother document in connection with the Debt Financing, in each case case, which will be effective prior to the Effective TimeClosing and such execution shall solely be required to the extent that such director, officer, employee or agent will be continuing in such capacity following Closing, (iiiv) nothing herein shall require cooperation contemplated thereby to or other actions or efforts on the extent it would interfere unreasonably with the business or operations part of the Company, the Company or any of its Affiliates Subsidiaries or their respective Affiliates, or any of their respective directors, officers, employees or agents in connection with the Debt Financing to the extent (iiia) it would result in any of the Company, the Company Subsidiaries or their respective Affiliates breaching any provision of this Agreement, (b) it would reasonably be expected to result in a violation or breach of, or default under, any agreement to which the Company, any Company Subsidiary or their respective Affiliates are a party or (c) it could reasonably be expected to interfere with the businesses or operations of the Company, the Company Subsidiaries or any of their respective Affiliates in any material respect, (v) none of the Company, the Company nor any of its Affiliates Subsidiaries or their respective RepresentativesAffiliates, or any of their respective directors, officers, employees or agents will be required to (1) pay or commit to pay any commitment or other similar fee, (2) reimburse or incur any costs or expenses or to incur any other liability (including or obligation or to enter into any guarantee, indemnity or pledge) agreement effective in connection with the Debt Financing or the Marketing Documents prior to the Effective TimeClosing, (3vi) provide nothing herein shall require the pre-Closing board of directors or pre-Closing similar governing body of any financial data other than the Required Information, or (4) provide any legal opinion or reliance letters or any certificate (in the case of the Company or its Subsidiary that would be required the Company Subsidiaries to be delivered adopt resolutions approving any Debt Financing Document or any other agreements, documents or instruments pursuant to which the Debt Financing is made, (vii) nothing herein shall require the Company, the Company Subsidiaries or their Affiliates to deliver any collateral pledged under the Debt Financing prior to the Effective Time), comfort letter or opinion of any of its RepresentativesClosing, (ivviii) nothing herein will involve any binding commitment by none of the Company, any of its the Company Subsidiaries, their Affiliates or any of their respective Representatives which commitment is not conditioned on the Effective Time and does not terminate without liability directors, members, partners, managers, officers or other employees shall be required to the Company, its Affiliates and their respective Representatives upon the termination of this Agreement, and (v) nothing herein will require the Company, any of its Affiliates or any of their respective Representatives to provide any information or take any action, the disclosure or taking of which would violate applicable Legal Requirements, any fiduciary duty, any Contract or obligation of confidentiality owing to a third party, or jeopardize the protection of the attorney-client privilege (or similar protections) held by the Company or any of its Affiliates; provided that, if the Company does not provide or cause its Representatives to provide such access or such information in reliance on the foregoing, then the Company shall (1) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1) any Representative of the Company or its Subsidiary to deliver any certificate or opinion or take any other action under this Section 6.16 actions that could reasonably be expected to result in personal liability to such Representative; (2) the Board of Directors (or any committee or subcommittee thereof) or the board of directors, members, partners, managers, managing member officers or any similar controlling body other employees, (ix) nothing herein shall require cooperation or other action that could result in a violation of any Subsidiary confidentiality arrangement or the loss of any applicable legal privilege (provided that the Company shall notify Parent of any action not so taken and shall use reasonable best efforts to provide such information without causing such violation or loss), (x) nothing herein shall require the Company, the Company Subsidiaries and their Affiliates to give any indemnities in connection with the Debt Financing that are effective prior to the Closing, (xi) nothing herein shall require the Company, any of the Company to approve (Subsidiaries or otherwise take any corporate or similar action with respect to) any financing (including the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) the Company and its Subsidiary their Affiliates to take any action that would will conflict with or violate its their respective certificate of formation, bylaws, partnership agreement, operating agreement or comparable organizational or governance documents or any applicable Legal Requirementsdocuments, or result in the contravention of, or that could reasonably be expected to result in a violation of breach of, or default under, any agreement to which the Company or its Subsidiary is a party.
and (cxii) Subject to any applicable Legal Requirements, all non-public or other confidential information provided by nothing herein shall require the Company, its Subsidiary the Company Subsidiaries, their Affiliates or any of their respective Representatives pursuant directors, members, partners, managers, officers or other employees to this Agreement will be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Purchaser will be permitted to disclose such information to prepare or provide any Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties Excluded Information. The Company hereby consents to the Financing use of the logos of the Company and to any underwriters, initial purchasers or placement agents the Company Subsidiaries solely in connection with the Debt Financing (and, in each case, to their respective counsel the form and auditors) so long as such Persons (i) agree to be bound manner approved by the Confidentiality Agreement as Company in writing prior to such use; provided, that such logos shall be used solely in a “Representative” thereunder as if parties thereto; manner that is not intended or (ii) are subject would reasonably be expected to other confidentiality undertakings reasonably satisfactory to harm, disparage or otherwise adversely affect the Company and of which the Company is a beneficiary.
(d) If the Closing does not occur, promptly upon request by the Company, Parent will reimburse the Company for any documented and reasonable out-of-pocket costs and expenses (including attorneys’ fees) incurred by the Company Subsidiaries or its Subsidiary in connection with the cooperation of the Company and its Subsidiary contemplated by this Section 6.16 (it being understood and agreed that the reimbursement set forth in this Section 6.16(d) shall not apply to any fees, costs, and expenses incurred by, their reputation or on behalf of, the Company, its Subsidiary goodwill or any of its Representatives respective products, services, offerings or intellectual property rights. The Company and the Company Subsidiaries will be deemed to be in connection compliance with its ordinary course financial reporting requirements Section 7.3(e) unless and until (i) Parent provides written notice (the “Non-Cooperation Notice”) to the Company of any alleged failure to comply, or action or failure to act which could be believed to be a breach of Section 7.3(e), (ii) Parent includes in such Non-Cooperation Notice reasonable detail regarding the provision of data that, in each case, was already prepared or was being prepared by cooperation required to cure such alleged failure (which shall not require the Company, its any Company Subsidiary or its Representatives their Affiliates to provide any cooperation that it would not otherwise be required to provide under Section 7.3(e)) and (iii) the Company fails to take the actions specified on such Non-Cooperation Notice within three (3) Business Days from receipt of such Non-Cooperation Notice. Notwithstanding anything to the contrary in this Agreement, the ordinary course condition in clause (d)(iv) of business notwithstanding Annex A as it applies to the Company Group’s obligations under this Section 6.16).
(e7.3(e) The Parent shall indemnify, defend and hold harmless will be deemed satisfied unless any of the Company Entities or the Company Subsidiaries has willfully and their respective Representatives from and against any and all losses, damages, claims, interest, awards, judgments, penalties, costs and expenses suffered or incurred by any of them in connection with the Financing (including any action taken in accordance with materially breached its obligations under this Section 6.16) 7.3 and costs and expenses incurred in defending against such breach has been the foregoing, except to the extent such losses, damages, claims, costs or expenses arise from the willful breach proximate cause of this Agreement by the Company, as finally determined by a court of competent jurisdiction, or from fraud any Debt Financing not being obtained on the part of the CompanyClosing Date.
Appears in 1 contract
Financing Cooperation. (a) Subject to Section 6.16(b), prior to Closing or termination of this Agreement, Seller and the Company shallGroup Companies shall use commercially reasonable efforts, and shall cause its their respective Subsidiaries and their respective Representatives torepresentatives to use commercially reasonable efforts, use reasonable best efforts to reasonably cooperate with and reasonably assist Parent, at the Parent’s request, sole cost and expense, in connection with arranging, obtaining and syndicating any Financing and causing the conditions in the Financing Documents and any commitment letters entered into in connection with provide such Financing to be satisfied, including using reasonable best efforts in (i) assisting with, and furnishing information for the purposes of, the preparation of customary prospectuses (including any pro forma financial information and any information required under Article 18(2) of Commission Delegated Regulation (EU) 2019/980), offering documents, syndication documents and materials, including bank information memoranda and private placement memoranda, lender and investor presentations, rating agency materials and presentations and other customary marketing materials cooperation in connection with the Financing (all such documents and materials, collectively, the “Marketing Documents”) (it being understood and agreed that the Marketing Documents shall include (or otherwise be subject to) any customary exculpation language, as the case may be, with respect to the Company, its Affiliates and their respective Representatives), (ii) furnishing to the Parent as promptly as reasonably practicable financial statements and operational information (including consolidated financial statements for interim periods up until the Closing Date) that can be prepared without undue burden with respect to the Company and its Subsidiary arrangement consummation of Parent’s debt financing as is reasonably requested by Parent Parent; provided, that no Party shall be required to provide such assistance if and to the extent it would unreasonably interfere with its business operations. Such assistance shall include the following, each of which shall be at Parent’s reasonable request with reasonable prior notice and at Parent’s sole cost and expense:
(i) participation by the “Required Information”)senior management team of the Company in the marketing activities undertaken in connection with the arrangement of such debt financing, including (A) preparation and provision of customary marketing materials (B) a reasonable number of conference calls, presentations, due diligence sessions and meetings with prospective lenders and debt investors and (C) delivery of customary authorization letters;
(ii) participation by senior management of the Company in, and assistance with, the preparation of rating agency presentations and meetings with rating agencies; and
(iii) assisting delivery to the Parent and its lenders of customary financial information reasonably requested by the Parent for use in connection with its efforts to procure any necessary debt financing (provided that in connection with the preparation of schedules foregoing, the Seller and the Group Companies (I) shall be obligated only to collateral agreements by providing deliver such financial and other information to the extent they may be reasonably obtained from the books and records of the Company Entities required to be made available on such schedules for purposes of the arrangement Group Companies without undue effort or consummation of the Financing, expense and (ivII) subject to any contractual agreement in effect, facilitating the pledging of collateral for the Financing, which shall not be required to be delivered prepare, provide or effective until at furnish any projections, pro forma financial statements or promptly following the Effective Timeany other forward looking information), (v) subject to any contractual agreement in effect, obtaining the Payoff Letter, and the related lien releases, and instruments of termination or discharge, as applicable, required pursuant to Section 6.12, in each case which shall provide that, if sufficient funds are received by the financing sources under the Credit Agreement in order to pay off in full all obligations (other than the Excluded Obligations) in connection therewith or secured thereby, such release, termination and/or discharge shall be effective, and (vi) furnishing Parent as promptly as reasonably practical (upon reasonable prior notice and at least three (3) business days prior times and locations to the Closing Date) with all documentation and other information related to the Company and its Subsidiary required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, that has been reasonably requested in writing by Parent or its Financing Sources at least ten (10) business days prior to the Closing Date. The Company hereby consents to the use of its and its Subsidiary’s logos in connection with the Financing so long as such logos are used solely (i) in a manner that is not intended to or that is not reasonably likely to harm or disparage the Company or its Subsidiary or the reputation or goodwill of the Company or its Subsidiary and (ii) solely in connection with a description of the Company, its business and products or the Mergerbe mutually agreed.
(b) Notwithstanding the requirements of Section 6.16(a) or anything in this Agreement to the contrary, (i) neither the Company nor any of its Affiliates or their respective Representatives shall be required to enter into, approve or perform (or commit to enter into, approve or perform) any certificate, document, agreement, or instrument, in each case which will be effective prior to the Effective Time, (ii) nothing herein shall require cooperation contemplated thereby to the extent it would interfere unreasonably with the business or operations of the Company or any of its Affiliates or their respective Affiliates, (iii) none of the Company nor any of its Affiliates or their respective Representatives, will be required to (1) pay or commit to pay any commitment or other fee, (2) reimburse or incur any costs or expenses or incur any other liability (including any guarantee, indemnity or pledge) in connection with the Financing or the Marketing Documents prior to the Effective Time, (3) provide any financial data other than the Required Information, or (4) provide any legal opinion or reliance letters or any certificate (in the case of the Company or its Subsidiary that would be required to be delivered prior to the Effective Time), comfort letter or opinion of any of its Representatives, (iv) nothing herein will involve Parent shall reimburse any binding commitment by the Company, any of its Affiliates Seller or any of their respective Representatives which commitment is not conditioned on the Effective Time and does not terminate without liability to the Company, its Affiliates and their respective Representatives upon the termination of this Agreement, and (v) nothing herein will require the Company, any of its Affiliates or any of their respective Representatives to provide any information or take any action, the disclosure or taking of which would violate applicable Legal Requirements, any fiduciary duty, any Contract or obligation of confidentiality owing to a third party, or jeopardize the protection of the attorney-client privilege (or similar protections) held by the Company or any of its Affiliates; provided that, if the Company does not provide or cause its Representatives to provide such access or such information in reliance on the foregoing, then the Company shall (1) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1) any Representative of the Company or its Subsidiary to deliver any certificate or opinion or take any other action under this Section 6.16 that could reasonably be expected to result in personal liability to such Representative; (2) the Board of Directors (or any committee or subcommittee thereof) or the board of directors, managers, managing member or any similar controlling body of any Subsidiary of the Company to approve (or otherwise take any corporate or similar action with respect to) any financing (including the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) the Company and its Subsidiary to take any action that would conflict with or violate its organizational or governance documents or any applicable Legal Requirements, or result in the contravention of, or that could reasonably be expected to result in a violation of breach of, or default under, any agreement to which the Company or its Subsidiary is a party.
(c) Subject to any applicable Legal Requirements, all non-public or other confidential information provided by the Company, its Subsidiary or any of their respective Representatives pursuant to this Agreement will be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Purchaser will be permitted to disclose such information to any Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties to the Financing and to any underwriters, initial purchasers or placement agents in connection with the Financing (and, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; or (ii) are subject to other confidentiality undertakings reasonably satisfactory to the Company and of which the Company is a beneficiary.
(d) If the Closing does not occur, promptly upon request by the Company, Parent will reimburse the Company for any all documented and reasonable out-of-pocket third party costs and expenses (including attorneys’ fees) reasonably incurred by the Company or its Subsidiary such Person in connection with the cooperation of the Company such cooperation. Parent acknowledges and its Subsidiary contemplated by this Section 6.16 (it being understood and agreed agrees that the reimbursement set forth in this Section 6.16(d) shall obtaining any debt financing is not apply a condition to any fees, costs, and expenses incurred by, or on behalf of, the Company, its Subsidiary or any of its Representatives in connection with its ordinary course financial reporting requirements or in the provision of data that, in each case, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding this Section 6.16)Closing.
(e) The Parent shall indemnify, defend and hold harmless the Company Entities and their respective Representatives from and against any and all losses, damages, claims, interest, awards, judgments, penalties, costs and expenses suffered or incurred by any of them in connection with the Financing (including any action taken in accordance with this Section 6.16) and costs and expenses incurred in defending against the foregoing, except to the extent such losses, damages, claims, costs or expenses arise from the willful breach of this Agreement by the Company, as finally determined by a court of competent jurisdiction, or from fraud on the part of the Company.
Appears in 1 contract
Samples: Equity Purchase and Merger Agreement (ManpowerGroup Inc.)
Financing Cooperation. (a) Subject Prior to Section 6.16(b), prior to Closing or termination of this AgreementEffective Time, the Company shallwill, and shall will cause its Subsidiaries and their respective Representatives to, and will use reasonable best efforts to reasonably cooperate with cause theRepresentatives of the Company and reasonably assist its Subsidiaries to, provide to Parent, at the Parent’s request, sole cost and 's expense, such cooperation as may be reasonably and customarily requested by Parent in connection with arrangingobtaining the Debt Financing no later than the Closing Date, obtaining and syndicating any Financing and causing the conditions in the Financing Documents and any commitment letters entered into in connection with such Financing to be satisfied, including using which reasonable best efforts in shall include, but not be limited to:
(i) assisting participation in, and assistance with, and furnishing information for the purposes ofas applicable, the preparation of customary prospectuses (including any pro forma financial information and any information required under Article 18(2) of Commission Delegated Regulation (EU) 2019/980), offering documents, syndication documents and materials, including bank information memoranda and private placement memoranda, lender and investor presentations, rating agency materials and presentations and other customary marketing materials in connection with the Financing (all such documents and materials, collectively, the “Marketing Documents”) (it being understood and agreed that the Marketing Documents shall include (or otherwise be subject to) any customary exculpation language, as the case may be, with respect Efforts related to the CompanyDebt Financing; provided, its Affiliates any meetings or conference calls shall be at times and their respective Representatives), locations to be mutually agreed;
(ii) furnishing to Parent the Financing Information and assisting Parent with Xxxxxx's preparation of pro forma and projected financial information; provided, the Company shall not be responsible for the preparation of such pro forma and/or projected financial information which shall be prepared solely by the Parent as promptly as reasonably practicable financial statements and operational the Company shall have no liability with respect to such information prepared by the Parent; **MSPSC Electronic Copy ** 2016-UA-225 Filed on 11/14/2016 **
(including consolidated financial statements iii) assisting Parent in obtaining corporate and facilities ratings in connection with the Debt Financing required by Section 3(d) of the Debt Commitment Letter; provided that any meetings, presentations, conference calls or other required activities in connection therewith shall be scheduled for interim periods up until timesand at location's to be mutually agreed;
(iv) upon reasonable request, identifying any material non-public informationcontained in the Closing Date) that can be prepared without undue burden Marketing Materials with respect to the Company ;
(v) delivering such due diligence materials as are reasonably available to it without undue burdenor expense and its Subsidiary as is are reasonably requested by Parent and customarily delivered in connection with the Marketing Materials;
(the “Required Information”), (iiivi) assisting in the preparation negotiation, execution and delivery of definitive financing documents, including credit agreements, guarantee and collateral documents, customary closing certificates, perfection certificates and any schedules thereto as may be required by the Financing Sources and other customary documents as may be reasonably requested by Parent; provided, that such documentsbe effective only upon Closing and that the Company shall haveno liabilitywith respect to collateral agreements such documents prior to the Closing; and
(vii) taking all corporate actions, subject to the occurrence of the Closing, reasonably requested by providing information Parent to permit the consummation of the Debt Financing; provided that none of the boards of directors (or equivalent bodies) of the Company Entities required to be made available on such schedules for purposes of the arrangement or consummation of the Financing, (iv) subject to any contractual agreement in effect, facilitating the pledging of collateral for the Financing, which its Subsidiaries shall not be required to be delivered enter into any resolutions or effective take similar action approving the Debt Financing until at or promptly following the Effective Time, Closing has occurred.
(vb) subject to any contractual agreement in effect, obtaining the Payoff LetterThe Company will, and will cause its Subsidiaries to, provide to Parent:
(i) if any Indebtedness remains outstanding as of the related lien releasesClosing, a customaiy payoff letter with respect to such Indebtedness, from each holder of such outstanding Indebtedness (A) indicating the amount required to discharge such Indebtedness at Closing and/or releasing the obligations of the Company and instruments of termination or discharge, as applicable, required pursuant to Section 6.12, in each case which shall provide that, if sufficient funds are received by the financing sources under the Credit Agreement in order to pay off in full all obligations (other than the Excluded Obligations) in connection therewith or secured thereby, such release, termination and/or discharge shall be effectiveits Subsidiaries thereunder, and (viB) furnishing Parent as promptly as reasonably practical if such Indebtedness is secured by any liens, agreeing to release such liens upon receipt of the payoff amount; and
(and ii) Customary KYC Information at least three (3) business days Business Days prior to the Closing Date) with all documentation and other information related Date to the Company and its Subsidiary required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, that has been reasonably extent such information was requested in writing by Parent or its Financing Sources at least ten (10) business days Business Days prior to the Closing Date. The Company hereby consents to the use of its and its Subsidiary’s logos closing in connection accordance with the Financing so long as such logos are used solely (i) in a manner that is not intended to or that is not reasonably likely to harm or disparage the Company or its Subsidiary or the reputation or goodwill definition of the Company or its Subsidiary and (ii) solely in connection with a description of the Company, its business and products or the MergerCustomary KYC Information.
(bc) Notwithstanding the requirements of Section 6.16(a) or anything in this Agreement Section 5.21 to the contrary, nothing herein will require (i) neither the Company nor any of its Affiliates or their respective Representatives shall be required to enter into, approve or perform (or commit to enter into, approve or perform) any certificate, document, agreement, or instrument, in each case which will be effective prior to the Effective Time, (ii) nothing herein shall require such cooperation contemplated thereby to the extent it would interfere unreasonably with the business or operations of the Company or any of its Affiliates Subsidiaries or their respective Affiliatesresult in undue burden or expense, (iiiii) none delivery of the Company nor any of its Affiliates or their respective Representatives, will be required to (1) pay or commit to pay any commitment or other fee, (2) reimburse or incur any costs or expenses or incur any other liability (including any guarantee, indemnity or pledge) in connection with the Financing or the Marketing Documents prior to the Effective Time, (3) provide any financial data other than the Required Information, or (4) provide any legal opinion or reliance letters or any certificate (information in the case of the Company or its Subsidiary that would be required to be delivered prior to the Effective Time), comfort letter or opinion of any of its Representatives, (iv) nothing herein will involve any binding commitment by the Company, any of its Affiliates or any of their respective Representatives which commitment is a form not conditioned on the Effective Time and does not terminate without liability to the Company, its Affiliates and their respective Representatives upon the termination of this Agreement, and (v) nothing herein will require the Company, any of its Affiliates or any of their respective Representatives to provide any information or take any action, the disclosure or taking of which would violate applicable Legal Requirements, any fiduciary duty, any Contract or obligation of confidentiality owing to a third party, or jeopardize the protection of the attorney-client privilege (or similar protections) held customarily prepared by the Company or any of its Affiliates; provided thatfinancial information with respect to a fiscal period that has not yet ended, if the Company does not provide or cause its Representatives to provide such access or such information in reliance on the foregoing, then the Company shall (1) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate (at the request of Parent) to provide for which the applicable access quarterly or information in a way that would annual report has not violate such applicable Legal Requirementsbeen filed with the SEC or delivery of projections, fiduciary duty (iii) delivery of any legal opinions or Contract solvency certificate, or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1) any Representative of the Company or its Subsidiary to deliver any certificate or opinion or take any other action under this Section 6.16 that could reasonably be expected to result in personal liability to such Representative; (2iv) the Board taking of Directors (or any committee or subcommittee thereof) or the board of directors, managers, managing member or any similar controlling body of any Subsidiary of the Company to approve (or otherwise take any corporate or similar action with respect to) any financing (including the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) the Company and its Subsidiary to take any action that would conflict with or violate its organizational or governance documents or any applicable Legal Requirements(x) the Company Organizational Documents, or result in the contravention of, or that could would reasonably be expected to result in a violation of or breach of, **MSPSC Electronic Copy ** 2016-UA-225 Filed on 11/14/2016 ** or default under, any agreement material written agreement, Contract, subcontract, lease, license understanding, instrument, note, bond, mortgage, indenture, option, warranty, insurance policy, benefit plan or other legally binding commitment to which the Company or any of the its Subsidiary Subsidiaries is a party.
(c) Subject to any applicable Legal Requirements, all non-public or other confidential information provided by the Company, its Subsidiary or any of their respective Representatives pursuant to this Agreement will be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Purchaser will be permitted to disclose such information to any Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties to the Financing and to any underwriters, initial purchasers or placement agents in connection with the Financing (and, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by case that are not contingent upon the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; Effective Time or (iiy) are subject to other confidentiality undertakings reasonably satisfactory to the Company and of which the Company is a beneficiaryany applicable Laws.
(d) If Notwithstanding anything in this Section 5.21 to the Closing does contrary, neither the Company nor any of its Subsidiaries will be required to (i) prior to the Effective Time, bear any out-of-pocket cost or expense that is not occurreimbursed pursuant to this Section 5.21 or pay any fee in connection with the Debt Financing, or (ii) enter into any agreement or commitment that would be effective prior to the Effective Time. Furthermore, Parent will, promptly upon request by the Company, Parent will reimburse the Company for any documented and all reasonable out-of-pocket costs and expenses (including attorneys’ feesfees and expenses of counsel) incurred by the Company or Company, any of its Subsidiary Subsidiaries and its and their respective Representatives, in connection with the cooperation of the Company and its Subsidiary contemplated by their respective obligations pursuant to this Section 6.16 (it being understood and agreed that 5.21. Parent will, prior to the reimbursement set forth in this Section 6.16(d) shall not apply to any feesEffective Time, costs, and expenses incurred by, or on behalf of, the Company, its Subsidiary or any of its Representatives in connection with its ordinary course financial reporting requirements or in the provision of data that, in each case, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding this Section 6.16).
(e) The Parent shall indemnify, defend indemnify and hold harmless the Company Entities Company, any of its Subsidiaries and its and their respective Representatives from and against any and all losses, damages, claims, interest, awards, judgments, penalties, costs Liabilities and expenses Damages suffered or incurred by any of them in connection with the Debt Financing (including and any action taken information utilized in accordance with this Section 6.16) and costs and expenses incurred in defending against the foregoing, except connection therewith. The Company hereby consents to the extent use of all of its and its Subsidiaries' names and logos in connection with the Debt Financing; provided, that such losses, damages, claims, costs or expenses arise from names and logos are used solely in the willful breach of this Agreement by the Company, as finally determined by a court of competent jurisdictionmatter that is not intended, or from fraud on reasonably likely, to harm or disparage the part Company or its Subsidiaries or the reputation or the goodwill of the CompanyCompany or its Subsidiaries.
Appears in 1 contract
Samples: Agreement and Plan of Merger
Financing Cooperation. (a) Subject to Section 6.16(b)During the Interim Period, prior to Closing or termination upon the request of this AgreementBuyer, the Company shall, and shall cause its Subsidiaries and their respective Representatives to, and shall use its reasonable best efforts to reasonably cooperate with cause its and reasonably assist Parenttheir Representatives to, at the Parent’s requestsole expense of Buyer (other than with respect to clause (ii) below), sole cost use its and expense, their reasonable best efforts to provide such cooperation as may reasonably be requested by Buyer in connection with arrangingany Buyer financing, obtaining and syndicating including any Financing and causing the conditions in the Financing Documents offering of securities and any commitment letters entered into in connection with such Financing SEC filings to be satisfiedmade by Buyer, including using reasonable best efforts in including, as applicable, by: (i) assisting withdesignating one or more members of the Company’s senior management to participate in a small number of meetings, due diligence and furnishing information for the purposes of, the preparation of customary prospectuses (including any pro forma financial information and any information required under Article 18(2) of Commission Delegated Regulation (EU) 2019/980), offering documents, syndication documents and materials, including bank information memoranda and private placement memoranda, lender and investor presentationsdrafting sessions, rating agency materials and presentations and other customary marketing materials road shows, if any, in connection with the Financing (all such documents each case, upon reasonable advance notice and materials, collectively, the “Marketing Documents”) (it being understood and agreed that the Marketing Documents shall include (or otherwise be subject to) any customary exculpation language, as the case may be, with respect to the Company, its Affiliates and their respective Representatives), at reasonable times; (ii) furnishing to the Parent as promptly as reasonably practicable financial statements and operational providing information (including consolidated financial statements for interim periods up until the Closing Date) that can be prepared without undue burden with respect to the Company and its Subsidiary the Company Subsidiaries, including such qualitative and quantitative information with appropriate financial metrics to provide disclosures to enable potential investors in any securities offering to bridge the Financial Statements to be reflective of the financial performance of the assets and operations being acquired by Buyer, as is reasonably requested by Parent (the “Required Information”), Buyer or its financing sources; (iii) assisting providing reasonable assistance as may be requested by Buyer in the preparation of schedules connection with documentation to collateral agreements be prepared by providing it, including SEC filings to be made by Buyer, offering memoranda, private placement memoranda, prospectuses, bank confidential information memoranda, rating agency presentations and similar documents; (iv) requesting that Deloitte & Touche LLP or other relevant accountants of the Company Entities required and the Company Subsidiaries cooperate with Buyer, including by participating in drafting sessions and accounting due diligence sessions, and seeking to be made available on obtain the consent of, and customary comfort letters (including customary “negative assurances”) from, Deloitte & Touche LLP (including by providing customary management letters and requesting legal letters to obtain such schedules consent) in connection with any securities offering by Buyer if reasonably necessary or desirable for purposes Buyer’s use of the arrangement Company’s or consummation of the Financing, Company Subsidiaries’ financial statements; and (ivv) subject to cooperating reasonably with Buyer’s legal counsel in connection with any contractual agreement in effect, facilitating the pledging of collateral for the Financing, which shall not legal opinions that such legal counsel may be required to be delivered or effective until at or promptly following the Effective Time, (v) subject to any contractual agreement in effect, obtaining the Payoff Letter, and the related lien releases, and instruments of termination or discharge, as applicable, required pursuant to Section 6.12, in each case which shall provide that, if sufficient funds are received by the financing sources under the Credit Agreement in order to pay off in full all obligations (other than the Excluded Obligations) in connection therewith or secured thereby, such release, termination and/or discharge shall be effective, and (vi) furnishing Parent as promptly as reasonably practical (and at least three (3) business days prior to the Closing Date) with all documentation and other information related to the Company and its Subsidiary required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, that has been reasonably requested in writing by Parent or its Financing Sources at least ten (10) business days prior to the Closing Date. The Company hereby consents to the use of its and its Subsidiary’s logos deliver in connection with any securities offering, to the Financing so long as such logos are used solely extent customary and reasonable. Notwithstanding the foregoing, nothing in this Section 6.21 shall (iA) in a manner that is not intended to or that is not reasonably likely to harm or disparage require the Company or its Subsidiary Subsidiaries to take any action that would reasonably be expected to conflict with or the reputation violate any applicable Law, Organizational Documents or goodwill of any Contracts, (B) require the Company or any of its Subsidiary and Subsidiaries to pay any commitment or similar fee, pay or reimburse any third party expense, provide any indemnities (ii) solely other than customary indemnities to Deloitte & Touche LLP), or incur or assume any liability or obligation, in connection with a description of the Company, its business and products or the Merger.
(b) Notwithstanding the requirements of Section 6.16(a) or anything in this Agreement to the contrarysuch Buyer financing, (iC) neither the Company nor any of its Affiliates or their respective Representatives shall be required to enter into, approve or perform (or commit to enter into, approve or perform) any certificate, document, agreement, or instrument, in each case which will be effective prior to the Effective Time, (ii) nothing herein shall require cooperation contemplated thereby to the extent it would unreasonably interfere unreasonably with the business or ongoing operations of the Company or any of its Affiliates or their respective Affiliates, (iii) none of the Company nor any of its Affiliates or their respective Representatives, will be required to (1) pay or commit to pay any commitment or other fee, (2) reimburse or incur any costs or expenses or incur any other liability (including any guarantee, indemnity or pledge) in connection with the Financing or the Marketing Documents prior to the Effective Time, (3) provide any financial data other than the Required InformationSubsidiaries, or (4D) provide any legal opinion or reliance letters or any certificate (in the case of require the Company or its Subsidiary that would be required Subsidiaries to be delivered adopt resolutions or execute consents to approve or authorize the execution of such Buyer financing prior to the Effective Time), comfort letter or opinion of any of its RepresentativesClosing.
(b) Buyer shall, (ivi) nothing herein will involve upon any binding commitment by the Company, any of its Affiliates or any of their respective Representatives which commitment is not conditioned on the Effective Time and does not terminate without liability to the Company, its Affiliates and their respective Representatives upon the termination of this Agreement, and (v) nothing herein will require the Company, any of its Affiliates or any of their respective Representatives to provide any information or take any action, the disclosure or taking of which would violate applicable Legal Requirements, any fiduciary duty, any Contract or obligation of confidentiality owing to a third party, or jeopardize the protection of the attorney-client privilege (or similar protections) held request by the Company or any of its Affiliates; provided thatfrom time to time, if the Company does not provide or cause its Representatives to provide such access or such information in reliance on the foregoing, then the Company shall (1) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1) any Representative of the Company or its Subsidiary to deliver any certificate or opinion or take any other action under this Section 6.16 that could reasonably be expected to result in personal liability to such Representative; (2) the Board of Directors (or any committee or subcommittee thereof) or the board of directors, managers, managing member or any similar controlling body of any Subsidiary of the Company to approve (or otherwise take any corporate or similar action with respect to) any financing (including the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) the Company and its Subsidiary to take any action that would conflict with or violate its organizational or governance documents or any applicable Legal Requirements, or result in the contravention of, or that could reasonably be expected to result in a violation of breach of, or default under, any agreement to which the Company or its Subsidiary is a party.
(c) Subject to any applicable Legal Requirements, all non-public or other confidential information provided by the Company, its Subsidiary or any of their respective Representatives pursuant to this Agreement will be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Purchaser will be permitted to disclose such information to any Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties to the Financing and to any underwriters, initial purchasers or placement agents in connection with the Financing (and, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; or (ii) are subject to other confidentiality undertakings reasonably satisfactory to the Company and of which the Company is a beneficiary.
(d) If the Closing does not occur, promptly upon request by the Company, Parent will reimburse the Company for any all reasonable and documented and reasonable out-of-pocket costs and expenses (including attorneys’ feesreasonable costs and expenses of counsel and accountants) incurred by the Company or any of its Subsidiary Subsidiaries in connection with the any cooperation of the Company and its Subsidiary contemplated by Subsidiaries provided under this Section 6.16 6.21 and (it being understood ii) indemnify and agreed that the reimbursement set forth in this Section 6.16(d) shall not apply to any fees, costs, and expenses incurred by, or on behalf of, hold harmless the Company, its Subsidiary or Subsidiaries and any of its Representatives in connection with its ordinary course financial reporting requirements or in the provision of data that, in each case, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding this Section 6.16).
(e) The Parent shall indemnify, defend and hold harmless the Company Entities and their respective Representatives from and against any and all claim, loss, damage, injury, liability, judgment, award, penalty, fine, cost (including cost of investigation), expense (including fees and expenses of counsel and accountants), settlement or other losses, damagesin each case, claims, interest, awards, judgments, penalties, costs and expenses actually suffered or incurred by any of them in connection with the Financing arrangement of any Buyer financing, except in the event such claim, loss, damage, injury, liability, judgment, award, penalty, fine, cost, expense, settlement or other loss arises out of or results from (including any action taken A) the gross negligence, the willful misconduct or bad faith of the Company or its Subsidiaries in accordance with fulfilling their obligations pursuant to this Section 6.166.21, (B) and costs and expenses incurred in defending against the foregoing, except information relating to the extent Company and its Subsidiaries provided to the Buyer by or on behalf of the Company and its Subsidiaries expressly for use in connection with any Buyer financing; provided, that such lossesinformation was used (1) in an offering memorandum, damagesprivate placement memorandum, claimsprospectus, costs bank confidential information memorandum, rating agency presentation or expenses arise from similar document and (2) in a form and context consented to in writing by or on behalf of the willful Company, or (C) the breach of the terms of this Agreement by the Sellers or the Company. Subject to Buyer’s indemnification obligations under this Section 6.21, as finally determined by a court of competent jurisdiction, or from fraud on the part Company hereby consents to the use of the Company Group’s corporate logos in connection with the initial syndication or marketing of the financing; provided, that such logos are used solely in a manner that is not intended to, nor reasonably likely to, harm or disparage the Company or any of its Subsidiaries. To the extent that this Section 6.21 requires the Company’s and/or its Subsidiaries’ cooperation with respect to Buyer’s obligations relating to any Buyer financing, the existence of any alternative financing shall not operate to increase the Company’s or its Subsidiaries’ respective obligations under this Section 6.21 for purposes of Article 7 as compared to such obligations in respect of any Buyer financing, in each case without giving effect to any such alternative financing. For the avoidance of doubt, the parties hereto acknowledge and agree that the provisions contained in this Section 6.21 represent the sole obligation of the Company and its Subsidiaries and its and their Representatives with respect to cooperation in connection with the arrangement of any Buyer financing.
Appears in 1 contract
Financing Cooperation. (a) Subject Prior to Section 6.16(b)the Closing, prior to Closing or termination each of this Agreementthe Company, the Company shallBlocker Holder and Blocker agrees to, and shall cause its the Company Subsidiaries and their respective Representatives to, use their respective commercially reasonable best efforts to reasonably cooperate with provide such cooperation and reasonably assist Parent, at assistance to NAC for the Parent’s request, sole cost and expense, private placement of equity securities of NAC or ParentCo or regarding any equity financing of NAC or ParentCo in connection with arrangingthe Transaction, obtaining in each case, on terms and syndicating with counterparties satisfactory to the Company in its sole discretion (collectively, the “Financing”), as may be reasonably requested by NAC. Such assistance shall include the following: (a) timely delivery to NAC and its Representatives of financial statements and other financial information regarding the Blocker Holder, Blocker, the Company and the Company Subsidiaries reasonably requested by NAC; (b) taking any Financing and causing actions reasonably requested by NAC in order to satisfy on a timely basis any of the conditions precedent to obtaining the Financing, and (c) cause Representatives of the Company and the Company Subsidiaries, in each case, with appropriate seniority and expertise, to, upon reasonable advance notice by NAC, participate in a reasonable number of meetings and due diligence sessions regarding the Financing Documents Financing; provided, in each case, that (i) such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and the Company Subsidiaries, (ii) under no circumstances shall the Blocker Holder, Blocker, the Company or any commitment letters entered into Company Subsidiary be required to (A) incur any costs, obligations or liabilities in connection with the Financing, (B) take any action that would reasonably be expected to conflict with or violate the Organizational Documents of the Company or any Company Subsidiary or applicable Law, (C) require any director, officer or manager to take any action or enter into agreement related to the Financing in such Financing capacity prior to be satisfiedthe Closing that is not contingent on the Closing and (iii) NAC, including using ParentCo, Merger Sub LLC, and Merger Sub Corp, shall jointly and severally indemnify, defend and hold harmless the Blocker Holder, Blocker, the Company and the Company Subsidiaries from and against any and all losses suffered or incurred by them in connection with the Financing.
(b) The Company hereby consents to the use of all of its and the Company Subsidiaries logos in connection with the Financing, provided that such logos are used solely in a manner that is not reasonably likely to harm or disparage the Company or the Company Subsidiaries or the reputation or goodwill of the Company or any Company Subsidiary.
(c) Prior to the Closing, each of NAC, ParentCo, Merger Sub LLC, and Merger Sub Corp agrees to use its respective commercially reasonable best efforts to provide such cooperation and assistance to the Company that is reasonably requested by the Company in connection with the Debt Financing. Such assistance shall include the following: (i) using commercially reasonable efforts to cooperate with the marketing efforts of the Company, including by assisting with, and furnishing information for the purposes of, with the preparation of customary prospectuses (including any pro forma financial information materials for rating agency presentations and any customary bank information required under Article 18(2) of Commission Delegated Regulation (EU) 2019/980)memoranda, offering documents, syndication documents and materials, including bank information memoranda and private placement memoranda, lender and investor presentations, rating agency materials and presentations and other or similar customary marketing materials documents reasonably required in connection with the Financing (all such documents and materials, collectively, the “Marketing Documents”) (it being understood and agreed that the Marketing Documents shall include (or otherwise be subject to) any customary exculpation language, as the case may be, with respect to the Company, its Affiliates and their respective Representatives), Debt Financing; (ii) furnishing on a confidential basis to the Parent Company as promptly as reasonably practicable financial statements any information or documents necessary or advisable for the preparation of customary materials for rating agency presentations and operational any customary bank information (including consolidated financial statements for interim periods up until memoranda, offering documents or similar customary documents reasonably required in connection with the Closing Date) that can be prepared without undue burden with respect to the Company and its Subsidiary as is reasonably requested by Parent (the “Required Information”), Debt Financing; (iii) assisting using commercially reasonable efforts to assist in the preparation of, and execute and deliver, customary definitive financing documentation and the completion of schedules any schedules, exhibits or annexes thereto, and requiring officers of NAC, ParentCo, Merger Sub LLC, and Merger Sub Corp to collateral agreements by providing information of execute and deliver any required documentation in connection with the Company Entities required to be made available on such schedules for purposes of the arrangement or consummation of the Debt Financing, ; (iv) subject using commercially reasonable efforts to any contractual agreement in effect, facilitating facilitate the pledging of collateral for and the Financinggranting of security interests (and the perfection thereof) in collateral of ParentCo and its Subsidiaries; provided, which that no pledge by NAC, ParentCo, Merger Sub LLC, or Merger Sub Corp shall not be required to be delivered or effective until at or promptly following the Effective Time, Closing; (v) subject to any contractual agreement in effect, obtaining the Payoff Letter, and the related lien releases, and instruments of termination or discharge, as applicable, required pursuant to Section 6.12, in each case which shall provide that, if sufficient funds are received by the financing sources under the Credit Agreement in order to pay off in full all obligations (other than the Excluded Obligations) in connection therewith or secured thereby, such release, termination and/or discharge shall be effective, and (vi) furnishing Parent as promptly as reasonably practical (and at least three five (35) business days Business Days prior to the Closing Date, providing (A) with all such documentation and other information related to the Company regarding NAC, ParentCo, Merger Sub LLC, and its Subsidiary Merger Sub Corp required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT ActUSA Patriot Act of 2001 and (B) certifications regarding beneficial ownership required by 31 C.F.R. § 1010.230; and (vi) using commercially reasonable efforts to cooperate in satisfying the conditions to the funding of the Debt Financing to the extent the satisfaction of such conditions requires the cooperation of, or is within the control of, NAC, ParentCo, Merger Sub LLC, or Merger Sub Corp; provided, in each case, that has been (x) such requested cooperation does not unreasonably interfere with the ongoing operations of NAC, ParentCo, Merger Sub LLC, or Merger Sub Corp, (y) under no circumstances shall NAC, ParentCo, Merger Sub LLC, or Merger Sub Corp be required to (1) incur any costs, obligations or liabilities in connection with the Debt Financing prior to the Closing, (2) take any action that would reasonably requested be expected to conflict with or violate the Organizational Documents of NAC, ParentCo, Merger Sub LLC, or Merger Sub Corp or applicable Law, (3) require any director, officer or manager to take any action or enter into agreement related to the Debt Financing in writing by Parent or its Financing Sources at least ten (10) business days such capacity prior to the Closing Date. The that is not contingent on the Closing and (z) the Company hereby consents to the use of its shall indemnify, defend and its Subsidiary’s logos hold harmless NAC, ParentCo, Merger Sub LLC, and Merger Sub Corp from and against any and all losses suffered or incurred by them in connection with the Financing so long as such logos are used solely (i) in a manner that is not intended to or that is not reasonably likely to harm or disparage the Company or its Subsidiary or the reputation or goodwill of the Company or its Subsidiary and (ii) solely in connection with a description of the Company, its business and products or the MergerDebt Financing.
(bd) Notwithstanding the requirements of Section 6.16(a) or anything in this Agreement to the contrary, (i) neither the Company nor any of may elect not to consummate the Debt Financing in its Affiliates or their respective Representatives shall be required sole discretion without liability to enter intoNAC, approve or perform (or commit to enter into, approve or perform) any certificate, document, agreement, or instrument, in each case which will be effective prior to the Effective Time, (ii) nothing herein shall require cooperation contemplated thereby to the extent it would interfere unreasonably with the business or operations of the Company or any of its Affiliates or their respective Affiliates, (iii) none of the Company nor any of its Affiliates or their respective Representatives, will be required to (1) pay or commit to pay any commitment or other fee, (2) reimburse or incur any costs or expenses or incur any other liability (including any guarantee, indemnity or pledge) in connection with the Financing or the Marketing Documents prior to the Effective Time, (3) provide any financial data other than the Required Information, or (4) provide any legal opinion or reliance letters or any certificate (in the case of the Company or its Subsidiary that would be required to be delivered prior to the Effective Time), comfort letter or opinion of any of its Representatives, (iv) nothing herein will involve any binding commitment by the CompanyParentCo, any of its their respective Affiliates or any of their respective Representatives which commitment is or securityholders or any other person. The Company shall not conditioned on consummate the Effective Time and does Debt Financing without NAC’s prior written consent, such consent not terminate without liability to the Companybe unreasonably conditioned, its Affiliates and withheld or delayed.
(e) Neither NAC, ParentCo nor any of their respective Affiliates or Representatives upon the termination shall enter into any Contract with respect to any Equity Interest of this AgreementNAC, and (v) nothing herein will require the Company, any of its Affiliates ParentCo or any of their respective Representatives to provide any information or take any actionAffiliates (including following the First Effective Time, the disclosure or taking of which would violate applicable Legal RequirementsBlocker, any fiduciary duty, any Contract or obligation of confidentiality owing to a third party, or jeopardize the protection of the attorney-client privilege (or similar protections) held by the Company or any Company Subsidiary) without the Company’s prior written consent, which may be granted or withheld in the Company’s sole discretion. Without limiting the generality of its Affiliates; provided that, if the Company does not provide or cause its Representatives to provide such access or such information in reliance on the foregoing, then the Company NAC shall (1) provide a written notice not make nor agree to Parent stating that it is withholding such access any amendments, changes, modifications or such information and (2) reasonably cooperate (at the request of Parent) waivers to provide the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1) any Representative of the Company or its Subsidiary to deliver any certificate or opinion or take any other action under this Section 6.16 that could reasonably be expected to result in personal liability to such Representative; (2) Subscription Agreements without the Board prior written consent of Directors (or any committee or subcommittee thereof) or the board of directors, managers, managing member or any similar controlling body of any Subsidiary of the Company to approve (or otherwise take any corporate or similar action with respect to) any financing (including the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) the Company and its Subsidiary to take any action that would conflict with or violate its organizational or governance documents or any applicable Legal Requirements, or result in the contravention of, or that could reasonably be expected to result in a violation of breach of, or default under, any agreement to which the Company or its Subsidiary is a party.
(c) Subject to any applicable Legal Requirements, all non-public or other confidential information provided by the Company, its Subsidiary which consent may granted or any of their respective Representatives pursuant to this Agreement will be kept confidential withheld in accordance with the Confidentiality Agreement, except that Parent and Purchaser will be permitted to disclose such information to any Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties to the Financing and to any underwriters, initial purchasers or placement agents in connection with the Financing (and, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; or (ii) are subject to other confidentiality undertakings reasonably satisfactory to the Company and of which the Company is a beneficiary.
(d) If the Closing does not occur, promptly upon request by the Company’s sole discretion; provided, Parent will reimburse the Company for any documented and reasonable out-of-pocket costs and expenses (including attorneys’ fees) incurred by the Company or its Subsidiary in connection with the cooperation of the Company and its Subsidiary contemplated by this Section 6.16 (it being understood and agreed further, that the reimbursement set forth in this Section 6.16(d) shall not apply to any fees, costs, and expenses incurred by, or on behalf of, the Company, its Subsidiary or any of its Representatives in connection with its ordinary course financial reporting requirements or in the provision of data that, in each case, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding this Section 6.16).
(e) The Parent shall indemnify, defend and hold harmless the Company Entities and their respective Representatives from and against any and all losses, damages, claims, interest, awards, judgments, penalties, costs and expenses suffered or incurred by any of them in connection with the Financing (including any action taken in accordance with this Section 6.16) and costs and expenses incurred in defending against the foregoing, except solely to the extent any change to a Subscription Agreement is ministerial in nature and does not affect any economic or any other material term of such lossesSubscription Agreement, damagessuch consent with respect to such ministerial change shall not be unreasonably conditioned, claims, costs withheld or expenses arise from the willful breach of this Agreement by the Company, as finally determined by a court of competent jurisdiction, or from fraud on the part of the Companydelayed.
Appears in 1 contract
Samples: Business Combination Agreement (Nebula Acquisition Corp)
Financing Cooperation. (a) Subject to Section 6.16(b), prior to Closing or termination of this Agreement, the The Company shall, and shall cause each of its Subsidiaries and their respective Representatives to, and shall use its reasonable best efforts to reasonably cooperate with cause its and reasonably assist its Subsidiaries’ respective officers, managers, employees, agents, consultants, advisors, accountants, financial advisors, legal counsel and other representatives to, provide to Parent, at the Parent’s request, sole cost and expense, all reasonable cooperation on a timely basis as may be reasonably requested by Parent to assist the Parent in the arrangement of any bank debt financing or any capital markets debt financing for the purposes of financing the payment of any amounts contemplated by this Agreement (the “Financing”), including the following:
(i) furnishing such financial statements and other financial data and other information relating to the Company and its Subsidiaries requested by Parent as may be reasonably necessary or advisable to consummate the Financing, including financial statements, financial data, audit reports and other information (v) reasonably necessary to assist Parent in its preparation of materials relating to the Company and its Subsidiaries for presentations to any rating agency, (w) reasonably necessary to assist Parent in the preparation of one or more confidential information memoranda, prospectuses, registration statements, offering memoranda and other marketing and syndication materials reasonably requested by Parent or any of its Subsidiaries, (x) of the type and form required by Regulation S-X and Regulation S-K under the Securities Act for a registered public offering of debt securities on Form S-3, (y) of a type and form customarily included in offerings of debt securities under Rule 144A of the Securities Act, or (z) as otherwise reasonably requested in connection with arranging, obtaining and syndicating any Financing and causing the conditions in the Financing Documents and any commitment letters entered into or as otherwise necessary in order to assist in receiving customary “comfort” (including “negative assurance” comfort) from independent accountants in connection with such Financing offerings of debt securities in connection with the Financing; provided that the Company’s sole obligation with respect to be satisfied, including using reasonable best efforts in (i) assisting with, and furnishing information for the purposes of, the preparation of customary prospectuses (including any pro forma financial information and financial statements for inclusion in any confidential information required under Article 18(2memorandum, prospectus, offering memorandum or other marketing or syndication material shall be as set forth in clause (vi) of Commission Delegated Regulation this Section 6.18(a);
(EUii) 2019/980), offering documents, using reasonable best efforts to cause its independent accountants to cooperate with Parent’s financing sources consistent with their customary practice and provide customary accountants’ “comfort letters” (including customary “negative assurances”) and customary consents to the inclusion of audit reports in marketing and syndication documents and materials, including bank information memoranda and private placement memoranda, lender and investor presentations, rating agency materials and presentations and other customary marketing materials material in connection with the Financing;
(iii) authorizing the reasonable use by Parent and its Subsidiaries of the Company’s and its Subsidiaries’ logos for syndication and underwriting, as applicable, of the Financing (all such documents subject to advance review of and materials, collectively, the “Marketing Documents”) (it being understood and agreed that the Marketing Documents shall include (or otherwise be subject to) any customary exculpation language, as the case may be, consultation with respect to such use); provided that such logos are used solely in a manner that is reasonable and customary for such purposes and that is not intended to, or reasonably likely to, harm or disparage the Company, Company or any of its Affiliates and Subsidiaries or the reputation or goodwill of the Company or any of its Subsidiaries or any of their respective Representatives)products, services or intellectual property rights;
(iiiv) furnishing to the Parent participating in a reasonable and limited number of meetings, presentations and road shows with prospective lenders and investors and in drafting sessions and due diligence sessions, as promptly as reasonably practicable financial statements and operational applicable;
(v) providing customary information (including consolidated financial statements for interim periods up until the Closing Date) that can be prepared without undue burden with respect to regarding the Company and its Subsidiary as is reasonably requested by Parent (the “Required Information”), (iii) assisting in the preparation of schedules to collateral agreements by providing information of the Company Entities required to be made available on such schedules for purposes of the arrangement or consummation of the Financing, (iv) subject to any contractual agreement in effect, facilitating the pledging of collateral for the Financing, which shall not be required to be delivered or effective until at or promptly following the Effective Time, (v) subject to any contractual agreement in effect, obtaining the Payoff Letter, and the related lien releases, and instruments of termination or discharge, as applicable, required pursuant to Section 6.12, in each case which shall provide that, if sufficient funds are received by the financing sources under the Credit Agreement in order to pay off in full all obligations (other than the Excluded Obligations) in connection therewith or secured thereby, such release, termination and/or discharge shall be effective, and (vi) furnishing Parent as promptly as reasonably practical (and at least three (3) business days prior to the Closing Date) with all documentation and other information related to the Company and its Subsidiary Subsidiaries required by regulatory authorities Governmental Entities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act, that has been Act of 2001;
(vi) providing information reasonably necessary to assist Parent with the preparation of pro forma financial information and financial statements to the extent required by the rules and regulations of the SEC; and
(vii) taking other actions ancillary to the Financing as may be reasonably requested in writing by Parent the Parent; provided that neither the Company, its Subsidiaries nor any of their respective directors or its Financing Sources at least ten officers shall be required to (10x) business days enter into any document or instrument prior to the Closing Date. The Company hereby consents to the use of its and its Subsidiary’s logos in connection with the Financing so long as such logos are used solely (i) in a manner Date that is not intended to contingent on the occurrence of the Closing (other than one or more customary authorization and representation letters), (y) take any action that is not reasonably would be likely to harm result in personal liability, or disparage (z) pass resolutions or consents to approve or authorize the Company execution of the Financing or its Subsidiary deliver any certificate, document, instrument or agreement (other than one or more customary authorization and representation letters) or agree to any change or modification of any existing certificate, document, instrument or agreement, in each case, prior to the reputation or goodwill Closing; provided, further, that none of the Company or its Subsidiary and (ii) solely in connection with a description of the Company, its business and products or the Merger.
(b) Notwithstanding the requirements of Section 6.16(a) or anything in this Agreement to the contrary, (i) neither the Company nor any of its Affiliates or their respective Representatives Subsidiaries shall be required to enter into, approve or perform (or commit to enter into, approve or perform) any certificate, document, agreement, or instrument, in each case which will be effective prior to the Effective Time, (ii) nothing herein shall require cooperation contemplated thereby to the extent it would interfere unreasonably with the business or operations of the Company or any of its Affiliates or their respective Affiliates, (iii) none of the Company nor any of its Affiliates or their respective Representatives, will be required to (1) pay or commit agree to pay any commitment or other feesimilar fee prior to the Closing, (2) reimburse take any action that could subject it to actual or incur potential liability, to bear any costs cost or expenses expense or incur to pay any commitment or other similar fee or make or agree to make any other liability payment or agree to provide any indemnity (including other than any guaranteecost, indemnity expense or pledgefee that is promptly reimbursed by Parent) in connection with the Financing or any of the Marketing Documents foregoing and in any event prior to the Effective Time, (3) provide any financial data other than the Required Information, or (4) provide any legal opinion or reliance letters or any certificate (in the case of the Company or its Subsidiary that would be required to be delivered prior to the Effective Time), comfort letter or opinion of any of its Representatives, (iv) nothing herein will involve any binding commitment by the Company, any of its Affiliates or any of their respective Representatives which commitment is not conditioned on the Effective Time and does not terminate without liability to the Company, its Affiliates and their respective Representatives upon the termination of this Agreement, and (v) nothing herein will require the Company, any of its Affiliates or any of their respective Representatives to provide any information or take any action, the disclosure or taking of which would violate applicable Legal Requirements, any fiduciary duty, any Contract or obligation of confidentiality owing to a third party, or jeopardize the protection of the attorney-client privilege (or similar protections) held by the Company or any of its Affiliates; provided that, if the Company does not provide or cause its Representatives to provide such access or such information in reliance on the foregoing, then the Company shall (1) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1) any Representative of the Company or its Subsidiary to deliver any certificate or opinion or take any other action under this Section 6.16 that could reasonably be expected to result in personal liability to such Representative; (2) the Board of Directors (or any committee or subcommittee thereof) or the board of directors, managers, managing member or any similar controlling body of any Subsidiary of the Company to approve (or otherwise take any corporate or similar action with respect to) any financing (including the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) the Company and its Subsidiary to take any action that would conflict with or violate its organizational or governance documents or any applicable Legal Requirements, or result in the contravention of, or that could reasonably be expected to result in a violation of breach of, or default under, any agreement to which the Company or its Subsidiary is a party.
(c) Subject to any applicable Legal Requirements, all non-public or other confidential information provided by the Company, its Subsidiary or any of their respective Representatives pursuant to this Agreement will be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Purchaser will be permitted to disclose such information to any Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties to the Financing and to any underwriters, initial purchasers or placement agents in connection with the Financing (and, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; or (ii) are subject to other confidentiality undertakings reasonably satisfactory to the Company and of which the Company is a beneficiary.
(d) If the Closing does not occur, promptly upon request by the Company, Parent will reimburse the Company for any documented and reasonable out-of-pocket costs and expenses (including attorneys’ fees) incurred by the Company or its Subsidiary in connection with the cooperation of the Company and its Subsidiary contemplated by this Section 6.16 (it being understood and agreed that the reimbursement set forth in this Section 6.16(d) shall not apply to any fees, costs, and expenses incurred by, or on behalf of, the Company, its Subsidiary or any of its Representatives in connection with its ordinary course financial reporting requirements or in the provision of data that, in each case, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding this Section 6.16).
(e) The Parent shall indemnify, defend and hold harmless the Company Entities and their respective Representatives from and against any and all losses, damages, claims, interest, awards, judgments, penalties, costs and expenses suffered or incurred by any of them in connection with the Financing (including any action taken in accordance with this Section 6.16) and costs and expenses incurred in defending against the foregoing, except to the extent such losses, damages, claims, costs or expenses arise from the willful breach of this Agreement by the Company, as finally determined by a court of competent jurisdiction, or from fraud on the part of the Company.Closing,
Appears in 1 contract
Samples: Merger Agreement
Financing Cooperation. (a) Subject During the period commencing with the execution and delivery of this Agreement and continuing until the earlier to Section 6.16(b), prior to Closing or occur of the termination of this AgreementAgreement pursuant to Article VIII and the Effective Time, the Company shall, and shall cause its Subsidiaries and their respective the Company’s and its Subsidiaries’ Representatives to, at Parent’s sole expense, reasonably cooperate in connection with the arrangement of any financing that Parent and Acquisition Sub may raise in connection with the transactions contemplated by this Agreement as may be reasonably requested by Parent (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries). Such cooperation by the Company shall include, at the reasonable request of Parent:
(i) agreeing to enter into such agreements, and to use its reasonable best efforts to deliver such officer’s certificates, as are customary in financings of such type and as are, in the good faith determination of the persons executing such officer’s certificates, accurate, and agreeing to pledge, grant security interests in, and otherwise grant liens on, the Company’s and its material Subsidiaries’ assets pursuant to such agreements as may be reasonably cooperate with requested;
(ii) providing to any lender that is providing any financing that Parent and reasonably assist Parent, at the Parent’s request, sole cost and expense, Acquisition Sub may raise in connection with arranging, obtaining the transactions contemplated by this Agreement financial and syndicating any Financing and causing the conditions other information relevant to such financing in the Financing Documents Company’s or its Subsidiaries’ possession or that is reasonably available or that the Company or its Subsidiaries prior to the date hereof in the ordinary course of business would have produced (and any commitment letters entered into in connection accordance with the timeframe in which such Financing to information would have been produced) (including audited and unaudited financial statements as of and for periods both before and after the date hereof, provided that such financial statements shall be satisfiedprovided in a manner as is consistent with the Company’s existing practices), including using reasonable best efforts assisting in (i) assisting with, and furnishing information for the purposes of, the preparation of customary prospectuses (including any pro forma financial information or projections, making the Company’s and its Subsidiaries’ senior officers available at reasonable times and for a reasonable number of meetings to assist any information required under Article 18(2) of Commission Delegated Regulation (EU) 2019/980), offering documents, syndication documents lender that is providing any financing that Parent and materials, including bank information memoranda and private placement memoranda, lender and investor presentations, rating agency materials and presentations and other customary marketing materials Acquisition Sub may raise in connection with the Financing transactions contemplated by this Agreement (all such documents including by way of participation in meetings, presentations, marketing sessions and materials, collectively, the “Marketing Documents”) (it being understood and agreed that the Marketing Documents shall include (or otherwise be subject to) any customary exculpation language, as the case may be, with respect to the Company, its Affiliates and their respective Representativesdue diligence sessions), (ii) furnishing to and otherwise reasonably cooperating in connection with the Parent as promptly as reasonably practicable financial statements and operational information (including consolidated financial statements for interim periods up until the Closing Date) that can be prepared without undue burden with respect to the Company and its Subsidiary as is reasonably requested by Parent (the “Required Information”), consummation of any such financing;
(iii) using reasonable best efforts to obtain from the Company’s and its Subsidiaries’ accounting firm accountants’ comfort letters and consents customary for debt financings, and assisting in the preparation of schedules to collateral agreements by providing Parent and its counsel with information of the Company Entities required to be made available on such schedules for purposes of the arrangement or consummation of the Financing, (iv) subject to any contractual agreement in effect, facilitating the pledging of collateral for the Financing, which shall not be customary legal opinions required to be delivered or effective until at or promptly following the Effective Time, (v) subject to any contractual agreement in effect, obtaining the Payoff Letter, and the related lien releases, and instruments of termination or discharge, as applicable, required pursuant to Section 6.12, in each case which shall provide that, if sufficient funds are received by the financing sources under the Credit Agreement in order to pay off in full all obligations (other than the Excluded Obligations) in connection therewith or secured thereby, such release, termination and/or discharge shall be effective, and cooperating in obtaining any necessary valuations;
(viiv) furnishing Parent as promptly as reasonably practical (and at least three (3) business days prior to the Closing Date) with all documentation and other information related to about the Company and its Subsidiary Subsidiaries that the potential financing sources have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations;
(v) taking all corporate, including limited liability company, partnership or other similar actions by the PATRIOT Act, Company and its Subsidiaries that has been are reasonably requested in writing by necessary to permit the consummation of the necessary financing; and
(vi) using reasonable best efforts to cooperate with Parent or its Financing Sources at least ten (10) business days prior to satisfy any conditions precedent to any financing to the Closing Date. The extent within the control of the Company hereby consents to the use of its and its Subsidiary’s logos Subsidiaries. Parent shall promptly reimburse the Company for any out-of-pocket expenses and costs reasonably incurred in connection with the Financing so long as such logos are used solely (i) in a manner that is not intended to or that is not reasonably likely to harm or disparage the Company Company’s or its Subsidiary or the reputation or goodwill of the Company or its Subsidiary and (ii) solely in connection with a description of the Company, its business and products or the MergerAffiliates’ obligations under this Section 6.16(a).
(b) Notwithstanding the requirements of Section 6.16(a) or anything in this Agreement to the contrary, :
(i) neither nothing in this Agreement shall require any cooperation to the extent that it would require the board of directors of the Company nor or any of its Affiliates Subsidiaries to take any action or their respective Representatives 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 prior to the Effective Time (for which the Company is not promptly reimbursed by Parent) or to approve the execution or delivery of any document or certificate in connection with any financing that Parent and Acquisition Sub may raise in connection with the transactions contemplated by this Agreement;
(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 any financing that Parent and Acquisition Sub may raise in connection with the transactions contemplated by this Agreement and no counsel for the Company or any of its Subsidiaries shall be obligated to deliver any opinion in connection with any such 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 and none of the Company or any of its Subsidiaries shall be required to enter into, approve or perform (or commit to enter into, approve or perform) take any action under any certificate, document, agreement, document or instrument, in each case which will 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, (ii) nothing herein shall require cooperation contemplated thereby to the extent it would interfere unreasonably with the business or operations of the Company or any of its Affiliates or their respective Affiliates, (iii) none of the Company nor any of its Affiliates or their respective Representatives, will be required to (1) pay or commit to pay any commitment or other fee, (2) reimburse or incur any costs or expenses or incur any other liability (including any guarantee, indemnity or pledge) in connection with the Financing or the Marketing Documents prior to the Effective Time, (3) provide any financial data other than the Required Information, or (4) provide any legal opinion or reliance letters or any certificate (in the case of the Company or its Subsidiary that would be required to be delivered prior to the Effective Time), comfort letter or opinion of any of its Representatives, (iv) nothing herein will involve any binding commitment by the Company, any of its Affiliates or any of their respective Representatives which commitment is not conditioned on the Effective Time and does not terminate without liability to the Company, its Affiliates and their respective Representatives upon the termination of this Agreement, and (v) nothing herein will require the Company, any of its Affiliates or any of their respective Representatives to provide any information or take any action, the disclosure or taking of which would violate applicable Legal Requirements, any fiduciary duty, any Contract or obligation of confidentiality owing to a third party, or jeopardize the protection of the attorney-client privilege (or similar protections) held by the Company or any of its Affiliates; provided that, if the Company does not provide or cause its Representatives to provide such access or such information in reliance on the foregoing, then the Company shall (1) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1) any Representative of the Company or its Subsidiary to deliver any certificate or opinion or take any other action under this Section 6.16 that could reasonably be expected to result in personal liability to such Representative; (2) the Board of Directors (or any committee or subcommittee thereof) or the board of directors, managers, managing member or any similar controlling body of any Subsidiary of the Company to approve (or otherwise take any corporate or similar action with respect to) any financing (including the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) the Company and its Subsidiary to take any action that would conflict with or violate its organizational or governance documents or any applicable Legal Requirements, or result in the contravention of, or that could reasonably be expected to result in a violation of breach of, or default under, any agreement to which the Company or its Subsidiary is a party.
(c) Subject to any applicable Legal Requirements, all non-public or other confidential information provided by the Company, its Subsidiary or any of their respective Representatives pursuant to this Agreement will be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Purchaser will be permitted to disclose such information to any Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties to the Financing and to any underwriters, initial purchasers or placement agents in connection with the Financing (and, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; or (ii) are subject to other confidentiality undertakings reasonably satisfactory to the Company and of which the Company is a beneficiary.
(d) If the Closing does not occur, promptly upon request by the Company, Parent will reimburse the Company for any documented and reasonable out-of-pocket costs and expenses (including attorneys’ fees) incurred by the Company or its Subsidiary in connection with the cooperation of the Company and its Subsidiary contemplated by this Section 6.16 (it being understood and agreed that the reimbursement set forth in this Section 6.16(d) shall not apply to any fees, costs, and expenses incurred by, or on behalf of, the Company, its Subsidiary or any of its Representatives in connection with its ordinary course financial reporting requirements or in the provision of data that, in each case, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding this Section 6.16).
(e) The Parent shall indemnify, defend and hold harmless the Company Entities and their respective Representatives from and against any and all losses, damages, claims, interest, awards, judgments, penalties, costs and expenses suffered or incurred by any of them in connection with the Financing (including any action taken in accordance with this Section 6.16) and costs and expenses incurred in defending against the foregoing, except to the extent such losses, damages, claims, costs or expenses arise from the willful breach of this Agreement by the Company, as finally determined by a court of competent jurisdiction, or from fraud on the part of the Company.
Appears in 1 contract
Financing Cooperation. (a) Subject to Section 6.16(b), prior to Closing or termination of this Agreement, the The Company shallshall use its commercially reasonable efforts to, and shall cause each of its Subsidiaries and to use their respective Representatives commercially reasonable efforts to, and shall use its commercially reasonable best efforts to cause its Representatives to use their commercially reasonable efforts to, reasonably cooperate with and reasonably assist Parent, at the Parent’s request, sole cost and expense, in connection with arranging, obtaining and syndicating any Financing and causing the conditions in the Financing Documents and any commitment letters entered into in connection with such Financing to be satisfied, including using reasonable best efforts in (i) assisting with, and furnishing information for the purposes of, the preparation of customary prospectuses (including any pro forma financial information and any information required under Article 18(2) of Commission Delegated Regulation (EU) 2019/980), offering documents, syndication documents and materials, including bank information memoranda and private placement memoranda, lender and investor presentations, rating agency materials and presentations and other customary marketing materials in connection with the Financing arrangement of any debt financing as may be reasonably requested in writing by Parent (all provided that such documents requested cooperation does not unreasonably interfere with the ongoing operations of the Company and materialsits Subsidiaries or any duties or obligations of any officer, collectivelydirector, employee, consultant, agent or Representative of the “Marketing Documents”Company or any of its Subsidiaries), including (but still subject to the aforementioned reasonableness standards) (it being understood i) participation in a reasonable number of meetings, lender presentations and agreed that the Marketing Documents shall include (or otherwise be subject to) any customary exculpation language, as the case may be, sessions with respect to the Company, its Affiliates and their respective Representatives)rating agencies, (ii) assisting with the preparation of materials for rating agency presentations and bank information memoranda, (iii) furnishing to the Parent as promptly as reasonably practicable financial statements and operational its debt financing sources with such pertinent and customary information (including consolidated financial statements for interim periods up until the Closing Date) that can be prepared without undue burden with respect to regarding the Company and its Subsidiary as is reasonably requested by Parent (the “Required Information”)Subsidiaries, (iii) assisting in the preparation of schedules to collateral agreements by providing including information of the Company Entities required to be made available on such schedules for purposes of the arrangement or consummation of the Financing, (iv) subject to any contractual agreement in effect, facilitating the pledging of collateral for the Financing, which shall not be required to be delivered or effective until at or promptly following the Effective Time, (v) subject to any contractual agreement in effect, obtaining the Payoff Letter, and the related lien releases, and instruments of termination or discharge, as applicable, required pursuant to Section 6.12, in each case which shall provide that, if sufficient funds are received by the financing sources under the Credit Agreement in order to pay off in full all obligations (other than the Excluded Obligations) in connection therewith or secured thereby, such release, termination and/or discharge shall be effective, and (vi) furnishing Parent as promptly as reasonably practical (and at least three (3) business days prior to the Closing Date) with all documentation and other information related to the Company and its Subsidiary required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, that has been all financial statements and projections and other pertinent information reasonably requested by the debt financing sources (all such information in writing this clause (iii), the “Required Information”), (iv) obtaining such consents, approvals and authorizations which shall be reasonably requested by Parent in connection with such debt financing and collateral arrangements in connection therewith, (v) executing and delivering any customary pledge and security documents, other definitive financing documents or its Financing Sources at least ten other requested certificates or documents, including, a customary solvency certificate by the Chief Financial Officer of the Company (10provided that (A) business days prior to none of the Closing Date. The Company hereby consents to the use of its agreements, documents and its Subsidiary’s logos certificates shall be executed and delivered except in connection with the Financing so long as such logos are used solely Closing, (iB) in a manner that is not intended to the effectiveness thereof shall be conditioned upon, or that is not reasonably likely to harm or disparage become operative after, the Company or its Subsidiary or occurrence of the reputation or goodwill Closing, (C) none of the Company or any of its Subsidiary and (ii) solely Subsidiaries shall be required to pay any commitment or other fee or incur any liability in connection with a description of the Company, its business and products or the Merger.
(b) Notwithstanding the requirements of Section 6.16(a) or anything in this Agreement such debt financing prior to the contrary, (i) neither the Company nor any Effective Time and none of its Affiliates or their respective Representatives shall be required to enter into, approve or perform (or commit to enter into, approve or perform) any certificate, document, agreement, or instrument, in each case which will be effective prior to the Effective Time, (ii) nothing herein shall require cooperation contemplated thereby to the extent it would interfere unreasonably with the business or operations of the Company or any of its Affiliates or their respective Affiliates, (iii) none of the Company nor any of its Affiliates or their respective Representatives, will be required to (1) pay or commit to pay any commitment or other fee, (2) reimburse fee or incur any costs or expenses or incur any other liability (including any guarantee, indemnity or pledge) in connection with such debt financing and (D) no personal liability shall be imposed on the Financing or the Marketing Documents prior Representatives involved, and (vi) obtaining any intellectual property assignment agreements relating to the Effective TimeCompany Products and Owned Intellectual Property, (3) provide and making all necessary filings with governmental registration agencies to update ownership title in and to effectuate the release of any financial data other than the Required Information, or (4) provide any legal opinion or reliance letters or any certificate (security interests granted in the case Registered Intellectual Property. None of the Company or its Subsidiary that would be required to be delivered prior to the Effective Time), comfort letter or opinion of any of its Representatives, (iv) nothing herein will involve any binding commitment by the Company, any of its Affiliates or any of their respective Representatives which commitment is not conditioned on the Effective Time and does not terminate without liability to the Company, its Affiliates and their respective Representatives upon the termination of this Agreement, and (v) nothing herein will require the CompanySubsidiary, any officer, director, employee, agent, consultant or Representative of its Affiliates or any of their respective Representatives to provide any information or take any action, the disclosure or taking of which would violate applicable Legal Requirements, any fiduciary duty, any Contract or obligation of confidentiality owing to a third party, or jeopardize the protection of the attorney-client privilege (or similar protections) held by either the Company or any of its Affiliates; provided thatSubsidiary shall be held liable for any reason in the event the Parent, if the Company does not provide or cause its Representatives to provide such access or such information in reliance on the foregoing, then the Company shall (1) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1) any Representative of the Company or its Subsidiary to deliver any certificate or opinion or take any other action under this Section 6.16 that could reasonably be expected to result in personal liability to such Representative; (2) the Board of Directors (Merger Sub or any committee or subcommittee thereof) or the board of directors, managers, managing member or Affiliate thereof fails to successfully arrange for any similar controlling body of any Subsidiary of the Company to approve (or otherwise take any corporate or similar action with respect to) any financing (including the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) the Company and its Subsidiary to take any action that would conflict with or violate its organizational or governance documents or any applicable Legal Requirements, or result in the contravention of, or that could reasonably be expected to result in a violation of breach of, or default under, any agreement to which the Company or its Subsidiary is a party.
(c) Subject to any applicable Legal Requirements, all non-public or other confidential information provided by the Company, its Subsidiary or any of their respective Representatives pursuant to this Agreement will be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Purchaser will be permitted to disclose such information to any Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties to the Financing and to any underwriters, initial purchasers or placement agents in connection with the Financing (and, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; or (ii) are subject to other confidentiality undertakings reasonably satisfactory to the Company and of which the Company is a beneficiary.
(d) If the Closing does not occur, promptly upon financing. Upon written request by the Company, the applicable Company, Subsidiary and/or Representative shall be promptly reimbursed by Parent will reimburse the Company for any documented and reasonable all direct out-of-pocket costs and expenses (including attorneys’ fees) incurred by relating to such cooperation, which obligation shall survive the Company or its Subsidiary in connection with the cooperation of the Company and its Subsidiary contemplated by this Section 6.16 (it being understood and agreed that the reimbursement set forth in this Section 6.16(d) shall not apply to any fees, costs, and expenses incurred by, or on behalf of, the Company, its Subsidiary or any of its Representatives in connection with its ordinary course financial reporting requirements or in the provision of data that, in each case, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding this Section 6.16).
(e) The Parent shall indemnify, defend and hold harmless the Company Entities and their respective Representatives from and against any and all losses, damages, claims, interest, awards, judgments, penalties, costs and expenses suffered or incurred by any of them in connection with the Financing (including any action taken in accordance with this Section 6.16) and costs and expenses incurred in defending against the foregoing, except to the extent such losses, damages, claims, costs or expenses arise from the willful breach termination of this Agreement by the Company, as finally determined by a court of competent jurisdiction, or from fraud on the part of the CompanyAgreement.
Appears in 1 contract
Samples: Merger Agreement (Mediware Information Systems Inc)
Financing Cooperation. (a) Subject Prior to Section 6.16(b), prior the consummation of the Offer and subject to Closing or termination clauses (b) and (c) of this AgreementSection 6.8, the Company shall, and shall cause its Subsidiaries and their respective Representatives to, and shall use its reasonable best efforts to reasonably cooperate with cause the Company's and reasonably assist Parentits Subsidiaries' officers, at the Parent’s requestdirectors, sole cost employees, agents and expense, in connection with arranging, obtaining and syndicating any Financing and causing the conditions in the Financing Documents and any commitment letters entered into in connection with such Financing to be satisfied, including using reasonable best efforts in representatives (i) assisting with, and furnishing information for the purposes of, the preparation of customary prospectuses (including any pro forma financial information and any information required under Article 18(2) of Commission Delegated Regulation (EU) 2019/980), offering documents, syndication documents and materials, including bank information memoranda and private placement memoranda, lender and investor presentations, rating agency materials and presentations and other customary marketing materials in connection with the Financing (all such documents and materials, collectively, the “Marketing Documents”"Company Representatives") (it being understood and agreed that the Marketing Documents shall include (or otherwise be subject to) any customary exculpation language, as the case may be, with respect to the Company, its Affiliates and their respective Representatives), (ii) furnishing to the Parent as promptly as reasonably practicable financial statements and operational information (including consolidated financial statements for interim periods up until the Closing Date) that can be prepared without undue burden with respect to the Company and its Subsidiary as is reasonably requested by Parent (the “Required Information”), (iii) assisting in the preparation of schedules to collateral agreements by providing information of the Company Entities required to be made available on such schedules for purposes of the arrangement or consummation of the Financing, (iv) subject to any contractual agreement in effect, facilitating the pledging of collateral for the Financing, which shall not be required to be delivered or effective until at or promptly following the Effective Time, (v) subject to any contractual agreement in effect, obtaining the Payoff Letter, and the related lien releases, and instruments of termination or discharge, as applicable, required pursuant to Section 6.12, in each case which shall provide that, if sufficient funds are received by the financing sources under the Credit Agreement in order to pay off in full all obligations (other than the Excluded Obligations) in connection therewith or secured thereby, at Parent's sole expense and provided that such release, termination and/or discharge shall be effective, and (vi) furnishing Parent as promptly as reasonably practical (and at least three (3) business days prior to the Closing Date) with all documentation and other information related to the Company and its Subsidiary required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, that has been reasonably requested in writing by Parent or its Financing Sources at least ten (10) business days prior to the Closing Date. The Company hereby consents to the use of its and its Subsidiary’s logos in connection with the Financing so long as such logos are used solely (i) in a manner that is efforts do not intended to or that is not reasonably likely to harm or disparage the Company or its Subsidiary or the reputation or goodwill of the Company or its Subsidiary and (ii) solely in connection with a description of the Company, its business and products or the Merger.
(b) Notwithstanding the requirements of Section 6.16(a) or anything in this Agreement to the contrary, (i) neither the Company nor any of its Affiliates or their respective Representatives shall be required to enter into, approve or perform (or commit to enter into, approve or perform) any certificate, document, agreement, or instrument, in each case which will be effective prior to the Effective Time, (ii) nothing herein shall require cooperation contemplated thereby to the extent it would interfere unreasonably with the business or operations of the Company and its Subsidiaries, provide to Parent all cooperation reasonaby requested by Parent that is necessary or desirable in connection with any of its Affiliates financing that Parent may raise or their respective Affiliates, (iii) none of the Company nor any of its Affiliates or their respective Representatives, will be required seek to (1) pay or commit to pay any commitment or other fee, (2) reimburse or incur any costs or expenses or incur any other liability (including any guarantee, indemnity or pledge) raise in connection with the Financing or the Marketing Documents prior transactions contemplated by this Agreement, including using its good faith efforts to:
(i) furnish Parent, reasonably promptly after Parent's request for specified items, all financial statements, financial data and other information reasonably available to the Effective Time, (3) provide any financial data other than the Required Information, or (4) provide any legal opinion or reliance letters or any certificate (in the case of Company relating to the Company or and its Subsidiary that would Subsidiaries as may be required reasonably requested by Parent in connection with such financing;
(ii) participate as reasonably requested by Parent in due diligence meetings in connection with any such financing in order to be delivered prior respond to the Effective Time), comfort letter or opinion of any of its Representatives, (iv) nothing herein will involve any binding commitment by the Company, any of its Affiliates or any of their respective Representatives which commitment is not conditioned on the Effective Time and does not terminate without liability to questions concerning the Company, its Affiliates Subsidiaries and their respective Representatives upon the termination of this Agreement, and (v) nothing herein will require the Company, any of its Affiliates or any of their respective Representatives to provide any information or take any action, the disclosure or taking of which would violate applicable Legal Requirements, any fiduciary duty, any Contract or obligation of confidentiality owing to a third party, or jeopardize the protection of the attorney-client privilege (or similar protections) held by the Company or any of its Affiliates; provided that, if the Company does not provide or cause its Representatives to provide such access or such information in reliance on the foregoing, then the Company shall (1) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate (at the request of Parent) to provide the applicable access or information in a way that would not violate such applicable Legal Requirements, fiduciary duty or Contract or otherwise jeopardize such privilege. Nothing in this Section 6.16 will require (1) any Representative of the Company or its Subsidiary to deliver any certificate or opinion or take any other action under this Section 6.16 that could reasonably be expected to result in personal liability to such Representative; (2) the Board of Directors (or any committee or subcommittee thereof) or the board of directors, managers, managing member or any similar controlling body of any Subsidiary of the Company to approve (or otherwise take any corporate or similar action with respect to) any financing (including the Financing) or Contracts (including any Financing Document or commitment letter) related thereto; or (3) the Company and its Subsidiary to take any action that would conflict with or violate its organizational or governance documents or any applicable Legal Requirements, or result in the contravention of, or that could reasonably be expected to result in a violation of breach of, or default under, any agreement to which the Company or its Subsidiary is a party.
(c) Subject to any applicable Legal Requirements, all non-public or other confidential information provided by the Company, its Subsidiary or any of their respective Representatives Company pursuant to this Agreement will be kept confidential clause (i) above; and
(iii) update the information provided by the Company pursuant to clause (i) above reasonably promptly after Parent's request for such update as necessary so that such information does not contain any untrue statement of material fact or omit to state any material fact necessary in accordance with order to make the Confidentiality Agreementstatements contained therein not misleading.
(b) Parent acknowledges and agrees that the Company (prior to the Acceptance Time) and its Subsidiaries and the Company Representatives shall not have any responsibility for, except or incur any liability to any person under, any financing that Parent and Purchaser will be permitted may raise or seek to disclose such information to any Financing Sources or prospective equity or debt financing sources and other financial institutions and investors that are or may become parties to the Financing and to any underwriters, initial purchasers or placement agents raise in connection with the Financing (and, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as a “Representative” thereunder as if parties thereto; or (ii) are subject to other confidentiality undertakings reasonably satisfactory to the Company and of which the Company is a beneficiary.
(d) If the Closing does not occur, promptly upon request by the Company, Parent will reimburse the Company for any documented and reasonable out-of-pocket costs and expenses (including attorneys’ fees) incurred by the Company or its Subsidiary in connection with the cooperation of the Company and its Subsidiary transactions contemplated by this Section 6.16 (it being understood and agreed that the reimbursement set forth in Agreement or any cooperation provided pursuant to this Section 6.16(d) 6.8 and that Parent and Acquisition Sub shall not apply to any fees, costs, indemnify and expenses incurred by, or on behalf of, hold harmless the Company, its Subsidiary or any of its Representatives in connection with its ordinary course financial reporting requirements or in the provision of data that, in each case, was already prepared or was being prepared by the Company, its Subsidiary or its Representatives in the ordinary course of business notwithstanding this Section 6.16).
(e) The Parent shall indemnify, defend Subsidiaries and hold harmless the Company Entities and their respective Representatives from and against any and all losses, damages, claims, interest, awards, judgments, penalties, costs and or expenses suffered or incurred by any of them in connection with the Financing arrangement of any financing Parent elects to seek and any information utilized in connection therewith except for:
(including i) as to financial statements or other information appearing in a Company SEC Report, any action taken in accordance with incorrectness or omission that renders the Company SEC Report materially false or materially misleading; or
(ii) as to information provided pursuant to clause (a)(i) of this Section 6.16) 6.8 other than financial statements or other information appearing in a Company SEC Report, such information was materially false or misleading when provided and costs and expenses incurred in defending against the foregoing, except such falsity or misleading character was known to the extent such losses, damages, claims, costs Company or expenses arise resulted from the willful breach of Company's gross negligence.
(c) Notwithstanding anything contained in this Agreement by Agreement, the Company, as finally determined by a court of competent jurisdiction, Parent and Acquisition Sub expressly acknowledge and agree that Parent's and Acquisition Sub's obligations hereunder are not conditioned in any manner upon Parent or from fraud on the part of the Company.Acquisition Sub obtaining any financing. ARTICLE VII
Appears in 1 contract
Samples: Merger Agreement (Bioclinica Inc)
