Financing Cooperation. (i) Prior to the Closing, the Company shall use its reasonable best efforts to provide to Parent and Merger Sub, and shall cause each of its Subsidiaries to use its reasonable best efforts to provide, and shall use commercially reasonable efforts to cause its non-legal Representatives, including accounting, to provide (in each case at Parent’s sole expense) all cooperation reasonably requested by Parent that is customary in connection with the arrangement of any Debt Financing in connection with the transactions contemplated hereby, including, but not limited to using commercially reasonable efforts to (provided, however, that nothing in this Section 7.13 shall require the Company, its Subsidiaries or any of its or their Representatives to disclose any information that is subject to attorney-client, attorney work product or similar privilege or to contravene Law or violate any Contract), (i) assist in preparation for and participate (and use commercially reasonable efforts to cause management of an appropriate level to participate) in a reasonable number of meetings (but no more than two (2) in person “bank meetings” and additional telephonic meetings at reasonably agreed times), due diligence sessions, drafting sessions, and presentations with prospective lenders and rating agencies, (ii) assist Parent with the timely preparation of customary materials for bank information memoranda and ratings agency presentations (and assisting in the obtaining of corporate, credit and facility ratings from ratings agencies), and similar documents required to be delivered in connection with the Debt Financing (including executing a customary authorization letter to the extent reasonably requested by the Debt Financing Source authorizing the distribution of information about the Company and its Subsidiaries to prospective lenders), (iii) furnish Parent with the historical financial statements of the Company reasonably requested by the Debt Financing Sources (subject to the immediately following proviso, the “Required Financial Information”), (iv) provide Parent and Merger Sub with information reasonably necessary to complete customary perfection certificates and other customary loan documents as may be required in connection with the Debt Financing as may be reasonably requested by Parent or the Merger Sub, (v) assist Parent in delivering original stock certificates in the possession of the Company, if any, and original stock powers (or, if any, similar documents for limited liability companies) to the extent customary and reasonably required on or prior to the Closing Date by any definitive documentation with respect to the Debt Financing (including assisting in obtaining copies thereof prior to the Closing Date), and (vi) take reasonable corporate actions, subject to and only effective upon the occurrence of the Closing, reasonably necessary to permit the consummation of the Debt Financing; provided, that the Company shall not be required to provide, or cause its Subsidiaries or Representatives to provide, cooperation under this Section 7.13(c) that: (A) unreasonably interferes with the ongoing business of the Company or its Subsidiaries; (B) causes any covenant, representation or warranty in this Agreement to be breached; (C) causes any condition set forth in Article VIII to fail to be satisfied or otherwise causes the breach of this Agreement; (D) requires the Company or its Subsidiaries, prior to the Closing, to pay any commitment or other similar fee or incur or become subject to any other liability or obligation in connection with the Debt Financing which is not otherwise funded or promptly reimbursed by Parent; and (E) requires the Company and its Subsidiaries or their respective directors, officers, managers or employees to execute, deliver or enter into, or perform any agreement, document, certificate or instrument with respect to the Debt Financing and the directors and managers of the Company and its Subsidiaries shall not be required to adopt resolutions approving the agreements, documents and instruments pursuant to which the Debt Financing is obtained. So long as requested by Parent at least ten (10) days prior to the Closing Date, the Company will, and will cause each of its Subsidiaries to, use commercially reasonable efforts to furnish Parent and the Merger Sub promptly, and in any event at least three (3) Business Days prior to the Closing Date, all documentation and other information with respect to the Company and its Subsidiaries that is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act and the beneficial ownership regulation set forth in 31 C.F.R. § 1010.230. The Company hereby consents to the use of its and its Subsidiaries’ trademarks, service marks or logos in connection with the Debt Financing; provided, that such trademarks, service marks or logos are used solely in a manner that is not intended to or reasonably likely to harm or disparage the Company or any of its Subsidiaries or the reputation or goodwill of the Company or any of its Subsidiaries or any of their respective intellectual property rights. At least one (1) Business Day prior to the anticipated Closing Date, the Company will deliver to Parent a customary payoff letter in form reasonably acceptable to Parent executed by the lenders of the Credit Agreement, which letter will set forth (a) the total amount required to be paid at the Effective Time to satisfy in full the repayment of all Indebtedness outstanding under the Credit Agreement and, if any, all prepayment penalties, premiums and breakage costs that become payable upon such repayment and any other fees or expenses outstanding thereunder (the “Payoff Amount”), (b) the lenders’ obligation to release all liens and other security securing the Credit Agreement at Parent’s expense immediately after receiving the Payoff Amount, and (c) wire transfer instructions for paying the Payoff Amount. Notwithstanding the above, all corporate, limited liability or other organizational actions shall be deemed to become effective only if and when the Closing occurs and shall be derived exclusively from the authority of, and shall only be taken by, the board of directors of the Company and its Subsidiaries or other governing body of the Company and its Subsidiaries as constituted after giving effect to the Closing. (ii) Upon the Company’s request, Parent will reimburse the Company for all reasonable and documented out-of-pocket costs, fees and expenses incurred by or on behalf of the Company or any of its Subsidiaries in connection with this Section 7.13. Parent shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives for any liabilities incurred by any of them in connection with any action taken by them pursuant to this Section 7.13 (other than arising from fraud, gross negligence or intentional misrepresentation on the part of the Company or its Subsidiaries or Representatives), whether or not the Merger is consummated or this Agreement is terminated in accordance with Article IX. Parent and Merger Sub acknowledge and agree that Section 7.13 shall not create any independent conditions to Closing and that obtaining the Financing is not a condition to the Closing.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Majesco), Merger Agreement (Majesco)
Financing Cooperation. (i) Prior to the Closing, the Company shall use its reasonable best efforts to provide to Parent and Merger Subcooperate, and shall to cause each of its Subsidiaries to use its reasonable best efforts to providecooperate, with Parent and shall use commercially reasonable efforts to cause its non-legal RepresentativesSub in connection with Parent and Sub obtaining the Financing, including accounting(i) furnishing financial and other pertinent information relating to the Company and its business (including information to be used in the preparation of an information package regarding the business, operations, financial projections and prospects of the Parent and the Company customary for such financing or any prospectus or offering memorandum or otherwise reasonably necessary for the completion of the Financing by the Financing Sources) to provide Parent, Sub and the Financing Sources to the extent reasonably requested by the Parent to assist in preparation of customary offering or information documents to be used for the completion of the Financing and in advance of the Marketing Period, (in each case at Parent’s sole expenseii) all cooperation without limiting the generality of the preceding clause (i), furnishing promptly such financial and other pertinent information regarding the Company and its Subsidiaries as may be reasonably requested by Parent that is customary in connection with to consummate the arrangement of any Debt Financing in connection with the transactions contemplated herebyFinancing, including, but not limited without limitation, information of the type required by Regulation S-X and Regulation S-K under the Securities Act (excluding information required by Regulation S-X Rule 3-10 and Regulation S-X Rule 3-16) and of the type and form customarily included in offering documents used in private placements under Rule 144A of the Securities Act and in any event the information regarding the Company and its Subsidiaries required to using commercially reasonable efforts be delivered pursuant to paragraphs vi and ix of Annex III to the Commitment Letter (provided, however, that nothing the information described in this Section 7.13 shall require clause (ii), the Company, its Subsidiaries or any of its or their Representatives to disclose any information that is subject to attorney-client, attorney work product or similar privilege or to contravene Law or violate any Contract“Required Company Financing Information”), (iiii) assist in preparation for prior to and participate (and use commercially reasonable efforts to cause management of an appropriate level to participate) during the Marketing Period, participating in a reasonable number of meetings (but no more than two (2) in person “bank meetings” including customary one-on-one meetings with the parties acting as lead arrangers or agents for, and additional telephonic meetings at reasonably agreed timesprospective lenders and purchasers with respect to, the Financing and senior management and Representatives, with appropriate seniority and expertise, of the Company), presentations, roadshows, due diligence sessions, drafting sessions (including accounting due diligence sessions, ) and presentations sessions with prospective lenders and rating agenciesagencies in connection with the Financing, (iiiv) assist Parent prior to the Marketing Period, assisting with the timely preparation of (A) any customary offering documents or memoranda, bank information memoranda, prospectuses and similar documents and (B) materials for rating agency presentations and bank information memoranda and ratings agency presentations (and assisting in the obtaining of corporate, credit and facility ratings from ratings agencies), and similar documents required to be delivered in connection with the Debt Financing (including executing a customary authorization letter to the extent reasonably requested by the Debt Financing Source authorizing the distribution of information about the Company and its Subsidiaries to prospective lenders), (iii) furnish Parent with the historical financial statements of the Company reasonably requested by the Debt Financing Sources (subject to the immediately following proviso, the “Required Financial Information”), (iv) provide Parent and Merger Sub with information reasonably necessary to complete customary perfection certificates and other customary loan documents as may be required in connection with the Debt Financing, (v) cooperating with the marketing efforts for any of the Financing, (vi) executing and delivering (or using reasonable best efforts to obtain from its advisors), and causing its Affiliates to execute and deliver (or use reasonable best efforts to obtain from their advisors), customary certificates, accountants’ comfort letters (and consents of accountants for use of their reports in any materials relating to the Financing and in connection with any filings required to be made by Parent pursuant to the Securities Act or the Exchange Act where the Financial Statements or any of the other Required Company Financing Information is included or incorporated by reference), legal opinions or other documents and instruments relating to guarantees and other matters ancillary to the Financing as may be reasonably requested by the Parent or the Merger Sub, (v) assist Parent in delivering original stock certificates in the possession of the Company, if any, as necessary and original stock powers (or, if any, similar documents for limited liability companies) to the extent customary and reasonably required on or prior to the Closing Date by any definitive documentation with respect to the Debt Financing (including assisting in obtaining copies thereof prior to the Closing Date), and (vi) take reasonable corporate actions, subject to and only effective upon the occurrence of the Closing, reasonably necessary to permit the consummation of the Debt Financing; provided, that the Company shall not be required to provide, or cause its Subsidiaries or Representatives to provide, cooperation under this Section 7.13(c) that: (A) unreasonably interferes with the ongoing business of the Company or its Subsidiaries; (B) causes any covenant, representation or warranty in this Agreement to be breached; (C) causes any condition set forth in Article VIII to fail to be satisfied or otherwise causes the breach of this Agreement; (D) requires the Company or its Subsidiaries, prior to the Closing, to pay any commitment or other similar fee or incur or become subject to any other liability or obligation in connection with the Debt Financing which is not otherwise funded Financing, (vii) (A) preparing and executing customary perfection certificates required in connection with the Financing, (B) obtaining pay-off letters and lien releases and instruments of discharge required to be delivered under the Commitment Letter and (C) obtaining guarantees, pledging of collateral, including taking all actions reasonably necessary to establish bank and other accounts and blocked account agreements in connection with the foregoing and executing and delivering customary pledge and security documents or promptly reimbursed other definitive financing documents and other certificates and documents as may be reasonably requested by Parent; and (E) requires , consistent with the Company and its Subsidiaries or their respective directors, officers, managers or employees to execute, deliver or enter into, or perform any agreement, document, certificate or instrument with respect to the Debt Financing terms of this Agreement and the directors Commitment Letter, to obtain and managers perfect security interests in assets of the Company and its Subsidiaries shall not that are intended to constitute collateral securing the Financing or otherwise facilitating the obtaining of guarantees, pledging of collateral from and after the Closing as may be required to adopt resolutions approving the agreements, documents and instruments pursuant to which the Debt Financing is obtained. So long as reasonably requested by Parent at least ten Parent; provided, that any obligations contained in all such agreements and documents shall be executed and effective no earlier than the Closing, (10viii) days prior providing authorization letters to the Closing DateFinancing Sources authorizing the distribution of information to prospective lenders or investors and containing a representation to the Financing Sources that the public side versions of such documents, if any, do not include material non-public information about the Company will, and will cause each of or its Subsidiaries toor securities, use commercially reasonable efforts to furnish Parent and (ix) reasonably cooperating with the Merger Sub promptlyFinancing Sources’ due diligence, and in any event at least three (3) Business Days prior to the Closing Date, providing all documentation and other information with respect to about the Company and each of its Subsidiaries that as is required reasonably requested in writing by regulatory authorities under Parent which is in connection with the Financing and relates to applicable “know your customer” and anti-money laundering rules and regulations, including, regulations including without limitation, limitation the USA PATRIOT Act and (x) taking all corporate actions, subject to the beneficial ownership regulation set forth occurrence of the Closing, necessary to permit the consummation of the Financing including entering into one or more credit agreements, indentures or other instruments on terms reasonably satisfactory to Parent in 31 C.F.R. § 1010.230connection with the Financing as of or immediately after the Effective Time to the extent direct borrowings or debt incurrence (or any guarantees thereof) by the Company is contemplated in the Financing; provided, however, that nothing herein shall require such cooperation to the extent it would interfere unreasonably with the business or operations of the Company or its Subsidiaries; provided, further, that neither the Company nor any of its Subsidiaries shall be required to commit to take any action that is not contingent upon the Closing (including the entry into any agreement) or that would be effective prior to the Effective Time and no personal liability shall be imposed on the officers or employees involved. Neither the Company nor any of its Subsidiaries shall be required to take any action that would subject it to actual or potential liability prior to the Effective Time, 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) or incur any other liability or provide or agree to provide any indemnity in connection with the Financing or any of the foregoing prior to the Effective Time. Parent shall, promptly upon request by the Company, reimburse the Company for all documented and reasonable out-of-pocket costs incurred by the Company or its Subsidiaries in connection with this Section 6.12. The Company hereby consents to the reasonable use of its the Company’s and its Subsidiaries’ trademarks, service marks or logos in connection with the Debt Financing; provided, provided that such trademarks, service marks or logos are used solely in a manner that is not intended to 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 intellectual property rightslogos and on such other customary terms and conditions as the Company shall reasonably impose. At least one (1) Business Day prior For the avoidance of doubt and notwithstanding anything to the anticipated Closing Datecontrary above in this Section 6.12, Parent acknowledges and agrees that the Company will deliver obligations of Parent and Sub to Parent a customary payoff letter in form reasonably acceptable to Parent executed consummate the Merger and the other transactions contemplated by this Agreement are not conditioned upon the lenders availability or consummation of the Credit AgreementFinancing or receipt of proceeds therefrom but, which letter will set forth (a) the total amount required to be paid at the Effective Time to satisfy in full the repayment of all Indebtedness outstanding under the Credit Agreement andany event, if any, all prepayment penalties, premiums and breakage costs that become payable upon such repayment and any other fees or expenses outstanding thereunder (the “Payoff Amount”), (b) the lenders’ obligation to release all liens and other security securing the Credit Agreement at Parent’s expense immediately after receiving the Payoff Amount, and (c) wire transfer instructions for paying the Payoff Amount. Notwithstanding the above, all corporate, limited liability or other organizational actions shall be deemed to become effective only if and when the Closing occurs and shall be derived exclusively from the authority of, and shall only be taken by, the board of directors of the Company and its Subsidiaries or other governing body of the Company and its Subsidiaries as constituted after giving effect to the Closing.
(ii) Upon without limiting the Company’s requestobligations under this Agreement, Parent will reimburse the Company for all reasonable and documented out-of-pocket costs, fees and expenses incurred by or on behalf of the Company or any of its Subsidiaries in connection with including this Section 7.13. Parent shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives for any liabilities incurred by any of them in connection with any action taken by them pursuant to this Section 7.13 (other than arising from fraud, gross negligence or intentional misrepresentation on the part of the Company or its Subsidiaries or Representatives), whether or not the Merger is consummated or this Agreement is terminated in accordance with Article IX. Parent and Merger Sub acknowledge and agree that Section 7.13 shall not create any independent conditions to Closing and that obtaining the Financing is not a condition to the Closing6.12.
Appears in 2 contracts
Samples: Merger Agreement (Tempur Pedic International Inc), Merger Agreement (Sealy Corp)
Financing Cooperation. (i) Prior to the Closing, the Company shall use its reasonable best efforts to provide to Parent and Merger Sub, and shall cause each of its Subsidiaries to use its reasonable best efforts to provide, and shall use commercially reasonable efforts to cause its non-legal Representatives, including accounting, to provide (in each case at Parent’s sole expense) all the following cooperation to the extent reasonably requested by Parent that is customary in connection with the arrangement of any Debt Financing debt financing in connection with the transactions contemplated hereby, including, but not limited to using commercially reasonable efforts to (provided, however, that nothing in this Section 7.13 6.16(c) shall require the Company, its Subsidiaries or any of its or their Representatives to disclose any information that is subject to attorney-client, attorney work product or similar privilege or to contravene Law or violate any Contract; provided, that the Company or such Subsidiary shall use reasonable best efforts to provide an alternative means of disclosing or providing such information, and in the case of any Contract, Company shall, to the extent permitted by such confidentiality obligations, notify Parent if any such information that Parent, Merger Sub or any Financing Source has specifically identified and requested is being withheld as a result of any such obligation of confidentiality), (i) assist assisting in preparation for and participate (and use commercially reasonable efforts to cause management of an appropriate level to participate) in a reasonable number of meetings (but no more than two (2) in person “bank meetings” and additional telephonic meetings at reasonably agreed times), due diligence sessions, drafting sessions, and presentations with prospective lenders and rating agencies, (ii) assist assisting Parent with the timely preparation of customary materials for bank information memoranda and ratings agency presentations (and assisting in the obtaining of corporate, credit and facility ratings from ratings agencies), and similar documents required to be delivered in connection with the Debt Financing (including executing and delivering a customary authorization letter to the extent reasonably requested by the Debt Financing Source lenders authorizing the distribution of information about the Company and its Subsidiaries to prospective lenders), (iii) furnish furnishing Parent with the historical financial statements of the Company reasonably requested by the Debt applicable financing sources or arrangers, including (A) within forty-five (45) days after the end of any fiscal quarter that is not a fiscal year end, with the unaudited consolidated balance sheet of the Company as of the end of such quarter and the related unaudited consolidated statements of operations and cash flows, (B) within one hundred and twenty (120) days after the end of any fiscal year, with the audited consolidated balance sheet of the Company as of the end of such fiscal year and the related audited consolidated statements of operations and cash flows, and (C) such information as is necessary in connection with Parent’s preparation of pro forma financial statements of the Company and its Subsidiaries of the type necessary or reasonably requested by the Financing Sources to be included in any bank information memoranda or other customary marketing materials, including by providing such financial and other pertinent information regarding the Company and its Subsidiaries and their respective businesses (subject it being understood that the Company needs only provide information to assist in the immediately following provisopreparation thereof, the “Required Financial Information”and shall not be required to provide pro forma financial statements or pro forma adjustments), (iv) provide providing Parent and Merger Sub with information reasonably necessary to complete customary perfection certificates and other customary loan documents as may be required in connection with the Debt Financing as may be reasonably requested by Parent or the Merger Sub, (v) assist Parent in delivering original stock certificates in reasonably facilitating the possession pledging of the Company, if any, and original stock powers collateral as of (or, if any, similar documents for limited liability companiesbut not prior to) to the extent customary and reasonably required on or prior to the Closing Date by any definitive documentation with respect to the Debt Financing (including assisting in obtaining copies thereof prior to the Closing Date), and (vi) take reasonable corporate actions, subject to provide all documentation and only effective upon the occurrence of the Closing, reasonably necessary to permit the consummation of the Debt Financing; provided, that the Company shall not be required to provide, or cause its Subsidiaries or Representatives to provide, cooperation under this Section 7.13(c) that: (A) unreasonably interferes with the ongoing business of the Company or its Subsidiaries; (B) causes any covenant, representation or warranty in this Agreement to be breached; (C) causes any condition set forth in Article VIII to fail to be satisfied or otherwise causes the breach of this Agreement; (D) requires the Company or its Subsidiaries, prior to the Closing, to pay any commitment or other similar fee or incur or become subject to any other liability or obligation in connection with the Debt Financing which is not otherwise funded or promptly reimbursed by Parent; and (E) requires information about the Company and its Subsidiaries or their respective directors, officers, managers or employees to execute, deliver or enter into, or perform any agreement, document, certificate or instrument with respect to the Debt Financing and the directors and managers of the Company and its Subsidiaries shall not be as is reasonably required to adopt resolutions approving the agreements, documents and instruments pursuant to which the Debt Financing is obtained. So long as requested by Parent at least ten (10) days prior to the Closing Date, the Company will, and will cause each of its Subsidiaries to, use commercially reasonable efforts to furnish Parent and the Merger Sub promptly, and in any event at least three (3) Business Days prior to the Closing Date, all documentation and other information with respect to the Company and its Subsidiaries that is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulationsregulations including the USA PATRIOT Act, including, without limitation, the PATRIOT Act and the beneficial ownership regulation set forth in 31 C.F.R. § 1010.230. The Company hereby consents at least five (5) Business Days prior to the use of its and its Subsidiaries’ trademarksClosing Date to the extent requested in writing at least ten (10) Business Days prior to the Closing Date.
(ii) Notwithstanding anything to the contrary in this Section 6.16(c), service marks no action contemplated in this Section 6.16(c) shall be required if any such action shall: (I) unreasonably disrupt or logos in connection interfere with the Debt Financingbusiness or ongoing operations of the Company or the Company Subsidiaries; provided, that such trademarks, service marks (II) (x) cause any representation or logos are used solely warranty or covenant contained in a manner that is not intended this Agreement to be breached or reasonably likely to harm or disparage (y) cause the Company or any of its Subsidiaries to violate or waive any attorney-client privilege or beach any Contract, applicable Law or Organizational Document; (III) involve the reputation entry into any definitive agreements with respect to any debt financing or goodwill any other binding commitment by the Company or any of its Subsidiaries that is not contingent upon the Closing Date occurring or that would be effective prior to the Closing Date (excluding the authorization and representation letters mentioned above); (IV) require the Company or any of its Subsidiaries or any of their respective intellectual property rights. At least one Representatives to provide (1or to have provided on its behalf) Business Day any certificates that would be effective prior to the anticipated Closing Date or any legal opinions; (V) require the Company or any of its Subsidiaries to pay any out-of-pocket fees or expenses prior to the Closing that are not promptly reimbursed by Parent as set forth in Section 6.16(c)(iii) if the Closing does not occur; (VI) cause any director, officer or employee of the Company or any of its Subsidiaries to incur any personal liability; (VII) require the Company or any of its Subsidiaries to execute and deliver any pledge or security documents or certificates, documents or instruments relating to the provision of guarantees and collateral in connection with the Financing that is not contingent upon the Closing Date occurring or that would be effective prior to the Closing Date; (VIII) except as necessary to give effect to the items expressly contemplated in this Section 6.16(c) and without limiting clauses (III) and (VII) above, require the Company or any of its Subsidiaries to execute and deliver any documentation (including corporate resolutions) related to the Financing; or (IX) cause any condition to the Closing set forth in Article VII to fail to be satisfied. The Company hereby consents to the use of the Company’s and the Company Subsidiaries’ logos solely to the extent necessary in connection with the Financing and solely in connection with a description of the Company, the Company Subsidiaries or the transactions contemplated by this Agreement and solely in a manner that is not intended or reasonably likely to harm or disparage the reputation or goodwill of the relevant party, or any of their respective Intellectual Property rights and will deliver comply with the Company’s usage requirements and guidelines to the extent made available to Parent a customary payoff letter prior to such use. In no event shall the Company or the Company Subsidiaries or any of their respective Affiliates be in form reasonably acceptable to Parent executed by the lenders breach of this Agreement because of the Credit Agreement, which letter will set forth (a) the total amount required failure to be paid at the Effective Time to satisfy in full the repayment of all Indebtedness outstanding under the Credit Agreement and, if any, all prepayment penalties, premiums and breakage costs that become payable upon such repayment and deliver any other fees or expenses outstanding thereunder (the “Payoff Amount”), (b) the lenders’ obligation to release all liens and other security securing the Credit Agreement at Parent’s expense immediately after receiving the Payoff Amount, and (c) wire transfer instructions for paying the Payoff Amount. Notwithstanding the above, all corporate, limited liability financial or other organizational actions shall be deemed to become effective only if and when information that is not readily available or is not otherwise prepared in the Closing occurs and shall be derived exclusively from the authority of, and shall only be taken by, the board ordinary course of directors business of the Company and the Company Subsidiaries at the time requested by Parent. Notwithstanding anything to the contrary herein, any breach by the Company or the Company Subsidiaries of their obligations under this Section 6.16(c), shall not constitute a breach of this Agreement for the purposes of Article VIII or a breach of the condition precedent set forth in Section 7.3, unless the Company has knowingly and willfully breached its Subsidiaries or other governing body obligations under this Section 6.16(c) and such breach has been the primary and direct cause of Parent’s debt financing not being obtained.
(iii) Parent shall (A) promptly reimburse the Company and its Subsidiaries as constituted after giving effect to the Closing.
(ii) Upon the Company’s request, Parent will reimburse the Company Subsidiaries for all reasonable and documented out-of-pocket costs, fees costs and expenses (including reasonable and documented attorneys’ fees) incurred by or on behalf of the Company or any of its Subsidiaries in connection with the cooperation provided for in this Section 7.13. Parent shall 6.16, and (B) promptly indemnify and hold harmless the Company, its Company and the Company Subsidiaries and their respective Representatives for from and against any liabilities and all liabilities, claims, losses, damages, costs, expenses, interest, awards, judgments and penalties (including reasonable and documented attorneys’ fees) actually suffered or incurred by any of them in connection with the arrangement or consummation of the Financing, except to the extent any action taken by them pursuant to this Section 7.13 (other than arising such liabilities, claims, losses, damages, costs, expenses, interest, awards, judgments or penalties arise out of or result from fraudbad faith, gross negligence negligence, fraud or intentional misrepresentation on the part willful misconduct by any of the Company or Company, its Subsidiaries or their respective Representatives), whether or not the Merger is consummated or this Agreement is terminated in accordance with Article IX. Parent and Merger Sub acknowledge and agree that Section 7.13 shall not create any independent conditions to Closing and that obtaining the Financing is not as determined by a condition to the Closingfinal, non-appealable judgment of a court of competent jurisdiction.
Appears in 2 contracts
Samples: Merger Agreement (Qad Inc), Merger Agreement (Qad Inc)
Financing Cooperation. (ia) Prior to the Closing, the The Company shall use its reasonable best efforts to provide to Parent and Merger Sub, and shall cause each of its Subsidiaries to use its reasonable best efforts to provide, and shall use commercially reasonable efforts to cause its non-legal RepresentativesSubsidiaries and its and their relevant Representatives to provide, including accounting, to provide (in each case at Parent’s sole expense) all cooperation such assistance with the Debt Financing as is reasonably requested by Parent that is customary in connection with the arrangement of any Debt Financing in connection with the transactions contemplated herebyand Merger Sub, including, but not limited to using commercially including without limitation reasonable best efforts to (provided, however, that nothing in this Section 7.13 shall require the Company, its Subsidiaries or any of its or their Representatives to disclose any information that is subject to attorney-client, attorney work product or similar privilege or to contravene Law or violate any Contract), to: (i) cause appropriate members of senior management of the Company to assist in with the preparation for of rating agency presentations and participate (and use commercially reasonable efforts to cause management of an appropriate level to participate) in a reasonable number of meetings (but no more than two (2) in person “bank meetings” and additional telephonic meetings at reasonably agreed times), due diligence sessions, drafting sessions, and presentations with prospective lenders and rating agencies, agencies upon reasonable advance notice; (ii) assist Parent (A) provide customary assistance in the preparation and negotiation of the applicable Debt Financing Documents and (B) in the case of the Company and its Subsidiaries, execute and deliver the applicable Debt Financing Documents as they pertain to the Company and its Subsidiaries; and (iii) facilitate the satisfaction on a timely basis of all conditions precedent and obligations set forth in the Debt Commitment Letter, including by (A) providing Parent, Merger Sub and the Financing Sources with the timely Required Information, (B) participating in the marketing efforts of Parent, Merger Sub and the Financing Sources, including direct participation by appropriate members of the Company’s senior management in (1) the preparation of customary materials for bank information memoranda and ratings agency presentations (and assisting in the obtaining of corporate, credit and facility ratings from ratings agencies), and similar documents required Marketing Material that pertains to be delivered in connection with the Debt Financing (including executing a customary authorization letter to the extent reasonably requested by the Debt Financing Source authorizing the distribution of information about the Company and its Subsidiaries to prospective lenders), (iii) furnish Parent with the historical financial statements of the Company reasonably requested by the Debt Financing Sources (subject to the immediately following proviso, the “Required Financial Information”), (iv) provide Parent and Merger Sub with information reasonably necessary to complete customary perfection certificates and other customary loan documents as may be required in connection with the Debt Financing as may be reasonably requested by Parent or the Merger Sub, (v) assist Parent in delivering original stock certificates in the possession of the Company, if any, and original stock powers (or, if any, similar documents for limited liability companies) to the extent customary and reasonably required on or prior to the Closing Date by any definitive documentation with respect to the Debt Financing (including assisting in obtaining copies thereof prior to the Closing Date), and (vi2) take one in-person meeting and a reasonable corporate actionsnumber of electronic meetings with prospective lenders and debt investors upon reasonable advance notice, subject to and only effective upon the occurrence of the Closing, reasonably necessary to permit the consummation of the Debt Financing; provided, that the Company shall not be required to provide, or cause its Subsidiaries or Representatives to provide, cooperation under this Section 7.13(c) that: (A) unreasonably interferes with the ongoing business of the Company or its Subsidiaries; (B) causes any covenant, representation or warranty in this Agreement to be breached; (C) causes any condition set forth in Article VIII to fail to be satisfied or otherwise causes the breach of this Agreement; delivery, by no later than four (D) requires the Company or its Subsidiaries, prior to the Closing, to pay any commitment or other similar fee or incur or become subject to any other liability or obligation in connection with the Debt Financing which is not otherwise funded or promptly reimbursed by Parent; and (E) requires the Company and its Subsidiaries or their respective directors, officers, managers or employees to execute, deliver or enter into, or perform any agreement, document, certificate or instrument with respect to the Debt Financing and the directors and managers of the Company and its Subsidiaries shall not be required to adopt resolutions approving the agreements, documents and instruments pursuant to which the Debt Financing is obtained. So long as requested by Parent at least ten (10) days prior to the Closing Date, the Company will, and will cause each of its Subsidiaries to, use commercially reasonable efforts to furnish Parent and the Merger Sub promptly, and in any event at least three (34) Business Days prior to the Closing Date, of all documentation and other information with respect to the Company and its Subsidiaries that is required by bank regulatory authorities under applicable “know your know-your-customer” and anti-money laundering rules and regulations, includingincluding the Patriot Act, without limitationOFAC, the PATRIOT Act FCPA and the Investment Company Act, and under beneficial ownership regulation set forth rules and regulations, to the extent requested by Parent or Merger Sub no less than nine (9) Business Days prior to the Closing Date, (D) delivery of corporate organizational documents of the Company and its Subsidiaries and delivery of the information required to perform customary lien searches on the Company and its Subsidiaries, and (E) delivery, on the Closing Date, of original certificated securities of the Company and its Subsidiaries (with transfer powers executed in 31 C.F.R. § 1010.230. blank) to the extent necessary for the creation and perfection of liens securing the Debt Financing.
(b) The Company hereby consents to the use of all of its and its Subsidiaries’ trademarks, service marks or logos in connection with the Debt Financing; provided, provided that such trademarks, service marks or 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 or any of its Subsidiaries or the reputation or goodwill of the Company or any of its Subsidiaries.
(c) The Company shall and shall cause each of its Subsidiaries or to deliver all notices and take other actions reasonably requested by Parent required to facilitate the termination of commitments under the Credit Agreement, repayment in full of all obligations under the Credit Agreement and release of any of their respective intellectual property rightsLiens and guarantees in connection therewith on the Closing Date. At least one The Company shall, and shall cause its Subsidiaries to, furnish to Parent, no later than two (12) Business Day Days prior to the anticipated Closing Date, the Company will deliver to Parent a customary payoff letter with respect to the Credit Agreement (the “Payoff Letter”) in substantially final form and in form and substance reasonably acceptable satisfactory to Parent executed by the lenders of from all financial institutions and other Persons to which Indebtedness under the Credit AgreementAgreement are owed, or the applicable agent, trustee or other representative on behalf of all such Persons, which letter will set forth Payoff Letter shall (ax) indicate the total amount required to be paid at the Effective Time to satisfy in full the repayment of all Indebtedness outstanding under the Credit Agreement andto fully satisfy all principal, if anyinterest, all prepayment premiums, penalties, premiums and breakage costs that become payable upon or other outstanding and unpaid obligations related to such repayment Indebtedness and any other fees or expenses outstanding thereunder obligations as of the Closing Date (the each such amount, a “Payoff Amount”)) and (y) state that all obligations (including guarantees) in respect thereof and Liens in connection therewith on the equity interests in and assets of the Company and each applicable Subsidiary of the Company shall be, substantially concurrently with the receipt of the applicable Payoff Amount on the Closing Date by the Persons holding such Indebtedness or other obligations, be released and terminated, or arrangements satisfactory to Parent for such release shall have been made by such time, subject, as applicable, to the replacement (bor cash collateralization or backstopping) of any then outstanding letters of credit thereunder.
(d) Notwithstanding the lenders’ obligation foregoing, nothing in this Section 6.19 shall require the Company, its Subsidiaries or any of its or their relevant Representatives, to: (i) take any action in respect of the Debt Financing to release all liens the extent that such action would cause any condition to Closing set forth in Article VII to fail to be satisfied by the Termination Date or otherwise result in a breach of this Agreement by the Company; (ii) take any action in respect of the Debt Financing that would conflict with or violate the Company’s or any of its Subsidiary’s organizational documents, any applicable Law or any Material Company Contract; (iii) take any action to the extent such action would unreasonably interfere with the business or operations of the Company or its Subsidiaries if the transactions contemplated by this Agreement are not consummated; (iv) execute and other security securing deliver any letter, agreement, registration statement, document or certificate in connection with the Credit Agreement at Parent’s expense immediately after receiving Debt Financing (except the Payoff Amount, and authorization letters contemplated by clause (c) wire transfer instructions for paying of the definition of “Debt Financing Documents”, notices of prepayment (including the Payoff AmountLetter) and terminations in connection therewith and borrowing notices) or take any corporation action, except in each case to the extent (A) conditioned upon consummation of the transactions contemplated by this Agreement and (B) Parent and Merger Sub have determined that the applicable director, officer or signatory shall continue in such capacity after the Closing Date; (v) pay any commitment fee or other fee or payment to obtain consent or incur any liability with respect to or cause or permit any Lien to be placed on any of their respective assets in connection with the Debt Financing prior to the Closing Date (except the authorization letters contemplated by clause (c) of the definition of “Debt Financing Documents”, notices of prepayment (including the Payoff Letter) and borrowing notices); (vi) issue on its own behalf any bank information memoranda, high-yield offering prospectuses, other memoranda required in relation to the Debt Financing or issue any Marketing Material, it being understood that any such documents shall reflect Merger Sub and/or the Surviving Corporation and/or its Subsidiaries as obligors; (vii) provide or procure any legal opinion or other opinion of counsel in connection with the Debt Financing or (viii) jeopardize any attorney-client privilege (but the Company shall use its reasonable best efforts to grant access to or otherwise disclose information that is subject to such privilege in a manner which would not jeopardize such privilege). Notwithstanding It is further understood and agreed that any information with respect to the aboveprospects and plans for the Company’s business and operations in connection with the Debt Financing will be the sole responsibility of Parent and Merger Sub, all corporateand none of the Company, limited the Subsidiaries or any of their respective Representatives shall have any liability or other organizational actions shall be deemed required to become effective only if and when provide any information or make any representations with respect to the capital structure that will be in effect following the Closing occurs and shall be derived exclusively from the authority of, and shall only be taken byDate, the board incurrence of directors of the Debt Financing, pro forma financial statements, similar pro forma information or the manner in which Parent intends to operate, or cause to be operated, the Company and its Subsidiaries or other governing body of the Company and its Subsidiaries as constituted after giving effect to the Closing.
(iie) Upon Except to the Company’s request, Parent will reimburse extent disclosed with the consent of the Company for or in connection with the Debt Financing and subject to customary confidentiality undertakings with respect thereto (which may include customary “click-through” confidentiality agreements), all reasonable and documented out-of-pocket costs, fees and expenses incurred confidential information provided by or on behalf of the Company or any of its Subsidiaries in connection with this Section 7.13. Parent shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives for any liabilities incurred by or any of them in connection with any action taken by them its or their Representatives pursuant to this Section 7.13 (other than arising from fraud, gross negligence or intentional misrepresentation on the part of the Company or its Subsidiaries or Representatives), whether or not the Merger is consummated or this Agreement is terminated 6.19 shall be kept confidential in accordance with Article IX. Parent and Merger Sub acknowledge and agree that Section 7.13 shall not create any independent conditions to Closing and that obtaining the Financing is not a condition to the ClosingConfidentiality Agreement.
Appears in 1 contract
Financing Cooperation. (ia) Prior to the Closing, the The Company shall use its commercially reasonable best efforts to provide to Parent and Merger Subto, and shall cause each of its Subsidiaries and its and their respective Representatives to use its reasonable best efforts to provide, and shall use their commercially reasonable efforts to cause its non-legal Representativesto, including accounting, to provide (in each case at Parent’s sole expense) all cooperation and assistance reasonably requested by Parent that is customary in connection with the arrangement of any Debt Financing in connection with the transactions contemplated hereby, including, but not limited to using commercially reasonable efforts to (provided, however, that nothing in this Section 7.13 shall require the Company, its Subsidiaries or any of its or their Representatives to disclose any information that is subject to attorney-client, attorney work product or similar privilege or to contravene Law or violate any Contract), (i) assist in preparation for and participate (and use commercially reasonable efforts to cause management of an appropriate level to participate) in a reasonable number of meetings (but no more than two (2) in person “bank meetings” and additional telephonic meetings at reasonably agreed times), due diligence sessions, drafting sessions, and presentations with prospective lenders and rating agencies, (ii) assist Parent with the timely preparation of customary materials for bank information memoranda and ratings agency presentations (and assisting in the obtaining of corporate, credit and facility ratings from ratings agencies), and similar documents required to be delivered in connection with the Debt Financing and any replacement, amended, modified, supplemental or alternative financing (including executing a customary authorization letter one or more offerings of non-convertible debt securities, convertible debt securities and/or equity securities to the extent reasonably requested be issued or incurred in lieu of or supplemental to any bridge facility contemplated by the Debt Financing Source authorizing Commitment Letter or pursuant to any “market flex” or “securities demand” provisions relating thereto) (all of the distribution of foregoing, together with the Debt Financing, the “Anticipated Financings”), including using commercially reasonable efforts to:
(i) furnish Parent, promptly following Parent’s reasonable request, with such pertinent and customary information about regarding the Company and its Subsidiaries (including information to prospective lenders), (iii) furnish Parent with be used in the historical financial statements preparation of one or more information packages or disclosure documents regarding the business and operations of the Company reasonably requested by the Debt Financing Sources (subject to the immediately following proviso, the “Required Financial Information”), (ivand its Subsidiaries) provide Parent as is necessary or customary and Merger Sub with information reasonably necessary to complete customary perfection certificates and other customary loan documents as may be required in connection with the Debt Financing as may be reasonably requested by Parent for the arrangement or marketing of any Anticipated Financing or for the Merger Subpreparation of any syndication, (v) assist Parent in delivering original stock certificates in the possession of the Company, if any, and original stock powers (or, if any, similar documents for limited liability companies) to the extent customary and reasonably required on or prior to the Closing Date by any definitive documentation with respect to the Debt Financing (including assisting in obtaining copies thereof prior to the Closing Date), and (vi) take reasonable corporate actions, subject to and only effective upon the occurrence of the Closing, reasonably necessary to permit the consummation of the Debt Financing; provided, that the Company shall not be required to provide, or cause its Subsidiaries or Representatives to provide, cooperation under this Section 7.13(c) that: (A) unreasonably interferes with the ongoing business of the Company or its Subsidiaries; (B) causes any covenant, representation or warranty in this Agreement to be breached; (C) causes any condition set forth in Article VIII to fail to be satisfied or otherwise causes the breach of this Agreement; (D) requires the Company or its Subsidiaries, prior to the Closing, to pay any commitment offering or other similar fee marketing materials and/or disclosure documents or incur rating agency or become subject to any other liability or obligation lender presentations (and otherwise assisting Parent in connection with the Debt Financing which is procuring customary corporate and facilities ratings), bank information memoranda (including a version that does not otherwise funded or promptly reimbursed by Parent; and (E) requires include material non-public information regarding the Company and its Subsidiaries or their respective directors, officers, managers or employees to execute, deliver or enter intoSubsidiaries) and similar documents relating to, or perform required in connection with, any agreementAnticipated Financing, document, certificate or instrument with respect to and including (A) within 45 days after the Debt Financing and the directors and managers end of each fiscal quarter of the Company Audit Subsidiary ending after September 30, 2020 and its Subsidiaries shall not be required to adopt resolutions approving the agreements, documents and instruments pursuant to which the Debt Financing is obtained. So long as requested by Parent at least ten (10) days prior to the Closing End Date, the Company will, and will cause unaudited consolidated balance sheet of the Audit Subsidiary as of the end of each of its Subsidiaries to, use commercially reasonable efforts to furnish Parent such fiscal quarter and the Merger Sub promptlyrelated unaudited consolidated statements of comprehensive income, changes in members’ capital and cash flows of the Audit Subsidiary for each such quarter and the elapsed portion of the fiscal year then-ending, in any event at least three each case prepared in accordance with GAAP applied on a consistent basis and (3B) Business Days prior to the Closing Date, all documentation and other information with respect to the Company and its Subsidiaries as may be reasonably necessary in order for Parent to prepare customary pro forma consolidated balance sheets and related pro forma consolidated statements of income;
(ii) participate in a reasonable number of conference calls with the Financing Sources and prospective lenders, investors and purchasers of any Anticipated Financing and reasonably cooperate with the marketing and due diligence efforts of Parent and the Financing Sources, in each case in connection with any Anticipated Financing;
(iii) in connection with any offering of securities, direct the Audit Subsidiary’s auditors to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by Parent with respect to financial information of the Audit Subsidiary included in any offering documents relating to any Anticipated Financing in which the consolidated financial statements of the Audit Subsidiary are included, and, if required, customary consents to the use of their audit reports on the consolidated historical financial statements of the Audit Subsidiary in any offering documents relating to any Anticipated Financing in which the consolidated historical financial statements of the Audit Subsidiary are included;
(iv) assist in the preparation of, and execute and deliver, one or more credit agreements, pledge and security documents, other definitive financing documents and other customary certificates or documents (including the execution and delivery of customary authorization and representation letters with respect to the bank information memoranda) on terms that are reasonably requested by Parent in connection with any Anticipated Financing, and take organizational actions as may be reasonably requested by Parent in connection with any Anticipated Financing, in each case subject to the protective provisions in the proviso below;
(i) assist with the payoff, discharge and termination of the Payoff Debt, including by arranging for, and executing and delivering, customary prepayment notices, the Payoff Letter, lien terminations and instruments of discharge, and (ii) assist with the payoff and early termination of the SunTrust Swap, including by arranging for, and executing and delivering, customary termination notices and the SunTrust Swap Termination Letter, in each case in a customary form;
(vi) no less than five Business Days prior to the Closing Date, furnish to Parent all documentation and information as is reasonably requested in writing by the Parent (on behalf of the Financing Sources) at least eight Business Days prior to the Closing Date about the Company and its Subsidiaries that the Financing Sources reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, including the USA PATRIOT Act and the applicable beneficial ownership regulation regulations; and
(vii) amend or supplement, or cause its Subsidiaries to amend or supplement, any information supplied by or on behalf of the Company or any of its Subsidiaries to Parent and the Financing Sources on a reasonably current basis to the extent such information, to the Knowledge of the Company, taken as a whole, is not correct in all material respects, contains any untrue statement of material fact or omits to state any material fact necessary to make such information, in light of the circumstances under which they were made, not materially misleading; provided, however, that none of the Company or any of its Subsidiaries or their respective Representatives shall be required under this Section 5.09 to (a) pay any commitment or other fee, reimburse any expenses or incur any other liability in connection with any Anticipated Financing prior to the Effective Time unless promptly reimbursed or indemnified, as applicable, by Parent in accordance with Section 5.09(b), (b) take any action that would (1) unreasonably interfere with the ongoing business or operations of the Company or any of its Subsidiaries or (2) cause material harm to the Company or its Subsidiaries if the transactions contemplated by this Agreement are not consummated, (c) enter into or approve any agreement or other documentation if such agreement or other documentation would be effective with respect to the Company or any of its Subsidiaries prior to the Closing (except the authorization and representation letters referred to in clause (iv) above and prepayment notices referred to in clause (v) above), (d) require the Company or any of its Subsidiaries, or any director or manager on any of their respective boards of directors or managers (or equivalent bodies), to approve or authorize any Anticipated Financing unless Parent shall have determined that such directors and managers (or members of equivalent bodies) are to remain as directors and managers (or members of equivalent bodies) of the Company or such Subsidiary on and after the Closing Date and such resolutions are contingent upon the occurrence of, or only effective as of, the Closing, (e) take any action that would conflict with or violate any provision of any of the Governing Documents of the Company or any of its Subsidiaries or any Applicable Law or Material Contract binding on the Company or any of its Subsidiaries (provided that in the event that the Company and/or its Subsidiaries do not provide information in reliance on the exclusion in this clause (e) related to confidentiality obligations, the Company and/or its Subsidiaries shall use commercially reasonable efforts to provide prompt notice to Parent that such information is being withheld), (f) take any action that would subject any director, manager, officer, employee or other Representative of the Company or any of its Subsidiaries to any actual or potential personal liability, (g) provide access to or disclose information that would jeopardize any attorney-client privilege of the Company or any of its Subsidiaries or which is restricted or prohibited under Applicable Law (provided that the Company and its Subsidiaries shall use commercially reasonable efforts to grant such access or provide such disclosure in a manner which would not jeopardize such privilege or contravene any such Applicable Law), (h) take any action in respect of any Anticipated Financing to the extent that such action would cause any condition to Closing set forth in 31 C.F.R. § 1010.230. Article 9 to fail to be satisfied by the End Date or otherwise result in a breach of this Agreement by the Company or any of its Subsidiaries or (i) waive or amend any terms of this Agreement or any other Contract to which the Company or its Subsidiaries is party.
(b) The Company hereby consents to the reasonable use of its and its Subsidiaries’ trademarks, service marks or logos in connection with the Debt any Anticipated Financing; provided, provided that such trademarks, service marks or logos are used solely in a manner that is not intended to or reasonably likely to harm or disparage the Company or any of its Subsidiaries or the reputation or goodwill of goodwill. All material non-public information provided by the Company or any of its Subsidiaries or any of their respective intellectual property rights. At least one (1) Business Day prior Representatives pursuant to this Section 5.09 shall be kept confidential in accordance with the Confidentiality Agreement; provided that, notwithstanding anything in the Confidentiality Agreement to the anticipated Closing Datecontrary, the Company will deliver shall consider in good faith any request by Parent for the Company’s consent to Parent use such information in a customary payoff letter manner in form reasonably acceptable to Parent executed by the lenders of the Credit Agreement, which letter will set forth (a) the total amount required to be paid at the Effective Time to satisfy in full the repayment of all Indebtedness outstanding under the Credit Agreement and, if any, all prepayment penalties, premiums and breakage costs that become payable upon such repayment and connection with any other fees or expenses outstanding thereunder (the “Payoff Amount”), (b) the lenders’ obligation to release all liens and other security securing the Credit Agreement at Parent’s expense immediately after receiving the Payoff Amount, and (c) wire transfer instructions for paying the Payoff Amount. Notwithstanding the above, all corporate, limited liability or other organizational actions shall be deemed to become effective only if and when the Closing occurs and shall be derived exclusively from the authority ofAnticipated Financing, and shall only be taken bynot unreasonably withhold, condition or delay such consent. Notwithstanding anything to the board of directors of contrary set forth herein, the Company and its Subsidiaries or other governing body shall be deemed to have complied with their obligations under this Section 5.09 for all purposes of this Agreement unless any Anticipated Financing has not been obtained primarily as a result of the Company Company’s or any of its Subsidiaries’ intentional and material breach of its Subsidiaries as constituted after giving effect obligations under this Section 5.09. Parent and Merger Sub acknowledge and agree that, notwithstanding anything in this Agreement to the Closingcontrary, the obligations to perform their respective agreements hereunder, including to consummate the Closing subject to the terms and conditions hereof, are not conditioned on obtaining any Anticipated Financing or on the performance of any party to any Debt Financing Letter.
(iic) Upon Parent shall promptly, upon written request by the Company’s request, Parent will reimburse the Company for all reasonable and documented out-of-pocket costs, fees and documented costs and expenses (including reasonable attorneys’ and accountants’ fees) incurred by or on behalf of the Company or any of its Subsidiaries in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 7.13. Parent 5.09 and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives for from and against any liabilities and all losses, damages, claims, costs or expenses suffered or incurred by any of them in connection with any action taken the cooperation contemplated by them pursuant to this Section 7.13 5.09 or the arrangement of any Anticipated Financing and any information used in connection therewith (other than arising from fraud, gross negligence (i) historical financial information furnished by or intentional misrepresentation on the part behalf of the Company or its Subsidiaries in writing specifically for use in connection with any Anticipated Financing or Representatives), whether or not the Merger is consummated or this Agreement is terminated in accordance with Article IX. Parent and Merger Sub acknowledge and agree that Section 7.13 shall not create any independent conditions to Closing and that obtaining the Financing is not a condition (ii) to the Closingextent such losses, damages, claims, costs or expenses result from the gross negligence or bad faith of the Company, its Subsidiaries or its or their respective Representatives, as determined by a court of competent jurisdiction in a final and non-appealable decision).
Appears in 1 contract
Samples: Merger Agreement (Cable One, Inc.)
Financing Cooperation. (ia) Prior Subject to Section 6.10(c) and Section 6.10(d), from and after the Closingdate of this Agreement, and through the earlier of the Closing and the date on which this Agreement is terminated in accordance with Article VIII, if requested by Parent, the Company shall use its provide commercially reasonable best efforts to provide cooperation to Parent and Merger SubSub (including providing, subject to the subsequent sentence, reasonably available financial and shall cause each other pertinent information regarding the Company and the Company Subsidiaries for use in usual and customary marketing and offering documents and to enable Parent to prepare pro forma financial statements required by SEC rules or Parent’s financing sources) in the arrangement of its Subsidiaries to use its reasonable best efforts to provideany bank debt financing or any capital markets debt financing, and shall use commercially reasonable efforts to cause its non-legal Representatives, including accounting, to provide (in each case at Parent’s sole expense) all cooperation reasonably requested by Parent that is customary for any purpose in connection with the arrangement consummation of any Debt Financing in connection with the Merger and the other transactions contemplated hereby, includingincluding without limitation for the purposes of financing any amounts that may become due in respect of the indebtedness of the Company and the Company Subsidiaries as of the Closing pursuant to change-of-control provisions or otherwise (collectively, but the “Debt Refinancing”), it being understood that the Debt Refinancing may involve increases in the size of or availability under any of the debt obligations or facilities of the Company or the Company Subsidiaries. Notwithstanding the foregoing, the Company shall only be required to provide audited financial statements for the three fiscal years preceding the commencement of the marketing of any Debt Refinancing and unaudited financial statements for any subsequent fiscal quarter (it being understood and agreed that the availability of the Company’s financial statements on the SEC’s EXXXX system shall satisfy such requirement and the Company shall not limited be required to using provide any financial statements prior to the end of the applicable deadline to file such financial statements with the SEC with the Company’s annual and quarterly reports) and the Company shall not be required to provide any standalone financial statements of any Subsidiary.
(b) Subject to Section 6.10(c) and Section 6.10(d), 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, if reasonably requested by Parent, the Company shall provide commercially reasonable efforts cooperation to Parent and Merger Sub in taking such actions as are necessary, proper or advisable under (providedx) the indentures listed in Section 3.18(b)(ii) of the Company Disclosure Letter and (y) the credit agreements listed in Section 3.18(b)(ii) of the Company Disclosure Letter (collectively, however, that nothing “Existing Debt Documents”) in respect of the transactions contemplated by this Agreement. Subject to Section 7.13 shall require the Company, its Subsidiaries or any of its or their Representatives to disclose any information that is subject to attorney-client, attorney work product or similar privilege or to contravene Law or violate any Contract6.10(c) and Section 6.10(d), (i) assist in preparation for from and participate (and use commercially reasonable efforts to cause management after the date of an appropriate level to participate) in a reasonable number of meetings (but no more than two (2) in person “bank meetings” and additional telephonic meetings at reasonably agreed times), due diligence sessions, drafting sessionsthis Agreement, and presentations through the earlier of the Closing and the date on which this Agreement is terminated in accordance with prospective lenders Article VIII, if and rating agencies, (ii) assist Parent with the timely preparation of customary materials for bank information memoranda and ratings agency presentations (and assisting in the obtaining of corporate, credit and facility ratings from ratings agencies), and similar documents required to be delivered in connection with the Debt Financing (including executing a customary authorization letter to the extent reasonably requested by the Debt Financing Source authorizing the distribution of information about Parent in writing, the Company and its Subsidiaries shall provide commercially reasonable cooperation to prospective lenders), (iii) furnish Parent with the historical financial statements of the Company reasonably requested by the Debt Financing Sources (subject to the immediately following proviso, the “Required Financial Information”), (iv) provide Parent and Merger Sub with information reasonably necessary to complete in either (A) arranging for the termination of Existing Debt Documents (and the related repayment or redemption thereof), which repayment or redemption shall be the sole responsibility, cost and expense of Parent, and the procurement of customary perfection certificates payoff letters and other customary loan documents as may be required release documentation in connection with therewith or (B) obtaining any Consents required under any Existing Debt Documents to permit the Debt Financing consummation of the transactions contemplated by this Agreement as may be reasonably requested by Parent Parent, and if reasonably requested by Parent, the Company shall, and shall cause the Company Subsidiaries to, execute and deliver such customary notices, agreements, documents or instruments necessary in connection therewith.
(c) Notwithstanding anything in this Section 6.10 to the Merger Subcontrary, in no event shall the Company be required in connection with its obligations under this Section 6.10 to (i) incur or agree to incur any out-of-pocket expenses unless they are promptly reimbursed by Parent, (vii) assist Parent in delivering original stock certificates in the possession incur or agree to incur any commitment, tender, consent, amendment fee or any fee similar to any of the Company, if any, and original stock powers (or, if any, similar documents for limited liability companies) foregoing unless Parent provides the funding to the extent customary and reasonably required Company therefor in advance, (iii) amend or otherwise modify or agree to amend or otherwise modify any Existing Debt Document, which amendment or other modification is not conditioned on the Closing, (iv) incur any potential or actual liability or provide any indemnities in connection therewith or otherwise related to the Debt Refinancing prior to the Closing Date by any definitive documentation with respect to the Debt Financing (including assisting in obtaining copies thereof prior to the Closing Date), and (vi) take reasonable corporate actions, subject to and only effective unless contingent upon the occurrence of the Closing, reasonably necessary to permit (v) take any actions that would unreasonably interfere with or unreasonably disrupt the consummation normal operations and management of the Debt Financing; providedCompany and the Company Subsidiaries, (vi) take any actions that the Company shall not be required to provide, or cause its Subsidiaries or Representatives to provide, cooperation under this Section 7.13(c) that: reasonably believes could (A) unreasonably interferes with violate its or the ongoing business Company Subsidiaries’ certificate of incorporation or bye-laws (or comparable documents), (B) violate any applicable Law, (C) constitute a default or violation under, or give rise to any right of termination, cancellation or acceleration of any right or obligation of the Company or its the Company Subsidiaries or to a loss of any benefit to which the Company or the Company Subsidiaries is entitled under any provision of, any Contract, or (D) result in the creation or imposition of any Lien on any asset of the Company or the Company Subsidiaries; , (Bvii) causes waive or amend any covenantterms of this Agreement, (viii) take any action that could reasonably be expected to cause any representation or warranty or covenant contained in this Agreement to be breached; (C) causes breached or to cause any condition to the Closing set forth in Article VIII VII to fail to be satisfied or otherwise causes the cause any breach of this Agreement; , (Dix) requires provide access to or disclose information that the Company determines would jeopardize any attorney-client privilege of the Company or its any of the Company Subsidiaries, (x) fund any repayment, repurchase or redemption prior to the Closing, to pay (xi) result in any commitment of the Company’s or other similar fee or incur or become subject any of the Company Subsidiaries’ Representatives incurring any personal liability with respect to any other liability or obligation in connection with the Debt Financing which is not otherwise funded or promptly reimbursed by Parent; and matters relating to this Section 6.10, (Exii) requires the Company and its Subsidiaries or their respective directors, officers, managers or employees to execute, deliver or enter into, or perform any agreement, documentdocument or instrument, certificate or instrument including any definitive financing agreement, with respect to the Debt Financing and Refinancing that is not contingent upon the directors and managers Closing or that would be effective prior to Closing, (xiii) be responsible for preparing any pro forma financial statements, (xiv) pass resolutions or consents, approve or authorize the execution of the Company and its Subsidiaries shall not be required or take any other corporate action with respect to adopt resolutions approving the agreements, documents and instruments pursuant to which the Debt Financing Refinancing that is obtained. So long as requested by Parent at least ten (10) days not contingent on the Closing or that would be effective prior to the Closing Date, the Company will, and will or (xv) provide or cause each of its Subsidiaries to, use commercially reasonable efforts legal counsel to furnish provide any legal opinions.
(d) Parent and the Merger Sub shall promptly, and in any event at least three upon written request by the Company, (3i) Business Days prior to the Closing Date, all documentation and other information with respect to reimburse the Company and its Subsidiaries that is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act and the beneficial ownership regulation set forth in 31 C.F.R. § 1010.230. The Company hereby consents to the use of its and its Subsidiaries’ trademarks, service marks or logos in connection with the Debt Financing; provided, that such trademarks, service marks or logos are used solely in a manner that is not intended to or reasonably likely to harm or disparage the Company or any of its Subsidiaries or the reputation or goodwill of the Company or any of its Subsidiaries or any of their respective intellectual property rights. At least one (1) Business Day prior to the anticipated Closing Date, the Company will deliver to Parent a customary payoff letter in form reasonably acceptable to Parent executed by the lenders of the Credit Agreement, which letter will set forth (a) the total amount required to be paid at the Effective Time to satisfy in full the repayment of all Indebtedness outstanding under the Credit Agreement and, if any, all prepayment penalties, premiums and breakage costs that become payable upon such repayment and any other fees or expenses outstanding thereunder (the “Payoff Amount”), (b) the lenders’ obligation to release all liens and other security securing the Credit Agreement at Parent’s expense immediately after receiving the Payoff Amount, and (c) wire transfer instructions for paying the Payoff Amount. Notwithstanding the above, all corporate, limited liability or other organizational actions shall be deemed to become effective only if and when the Closing occurs and shall be derived exclusively from the authority of, and shall only be taken by, the board of directors of the Company and its Subsidiaries or other governing body of the Company and its Subsidiaries as constituted after giving effect to the Closing.
(ii) Upon the Company’s request, Parent will reimburse the Company for all reasonable and documented out-of-pocket costs, fees and expenses incurred by or on behalf of the Company or any of its Subsidiaries in connection with this Section 7.13. Parent shall indemnify and hold harmless the Company, its Subsidiaries Affiliates and their respective Representatives for any liabilities and all out-of-pocket costs and expenses (including attorneys’ and accountants’ fees) incurred by any of them in connection with any action taken by them the cooperation required pursuant to this Section 7.13 6.10 and (other than arising ii) defend, indemnify and hold harmless the Company, the Company Subsidiaries and its and their respective Representatives from, against and in respect of any and all claims, liabilities, losses, damages, judgments, fines, penalties, costs and expenses (including fees of legal counsel) resulting from fraudor incurred in connection with the cooperation required pursuant to this Section 6.10 or any information utilized in connection therewith. Notwithstanding this Section 6.10 or anything in this Agreement to the contrary, gross negligence or intentional misrepresentation on the part each of the Company or its Subsidiaries or Representatives), whether or not the Merger is consummated or this Agreement is terminated in accordance with Article IX. Parent and Merger Sub acknowledge and agree parties hereto agrees that Section 7.13 shall not create any independent conditions to Closing and that obtaining the Financing it is not a condition to the ClosingClosing that the Debt Refinancing, payoff, amendments or other related or similar actions described in this Section 6.10 be obtained.
(e) Notwithstanding anything to the contrary herein, it is understood and agreed that the condition precedent set forth in Section 7.03(b), as applied to the Company’s obligations under this Section 6.10, shall be deemed to be satisfied unless the Debt Refinancing has not been obtained as a result of the Company’s willful breach of its obligations under this Section 6.10.
Appears in 1 contract
Samples: Merger Agreement (Aircastle LTD)
Financing Cooperation. (a) Parent shall use its reasonable best efforts to obtain the Financing on or prior to the Closing Date on the terms and conditions described in the Commitment Letter. Parent shall not amend, modify, waive the terms of, or replace, the Commitment Letter or reduce the aggregate amount of the Financing available under the Commitment Letter (other than through the issuance of securities in lieu of the bridge facility contemplated by the Commitment Letter) without the prior written consent of the Company, unless such amendment, modification, waiver or replacement or reduction would not (i) reduce the aggregate amount of the Financing below the amount required to consummate the transactions contemplated by this Agreement (including by changing the amount of fees to be paid or original issue discount of the Financing), except to the extent (A) replacement commitments for indebtedness to be incurred by Parent after the date hereof are then made available in order to consummate the transactions contemplated by this Agreement or (B) the representations set forth in Section 5.24(a) would be true after giving effect to such reduction; provided that the terms and conditions of such replacement commitments (including with respect to conditionality) shall be no less favorable, in the aggregate, to Parent than those contained in the Commitment Letter; or (ii) impose new, additional or more expansive conditions precedent, or otherwise amend, modify or expand any conditions precedent, to the receipt of the Financing, in each case, in a manner that would reasonably be expected to (x) materially delay or prevent the consummation of the transactions contemplated by this Agreement; or (y) adversely impact in any material respect the ability of Parent to consummate the transactions contemplated by this Agreement or enforce its rights under the Commitment Letter; provided, however, that Parent may amend the Commitment Letter without the prior written consent of the Company to add additional financing sources, lenders, lead arrangers, bookrunners, syndication agents or similar entities. References in this Agreement to the Financing shall include the financing contemplated by the Commitment Letter as amended or modified in compliance with this Section 7.19 and references to the Commitment Letter shall include such document as amended or modified in compliance with this Section 7.19.
(b) Parent shall use reasonable best efforts to (i) maintain in effect the Commitment Letter until the consummation of the transactions contemplated by this Agreement, other than any reduction in the amount of the Financing available under the Commitment Letter through the issuance of securities in lieu of the bridge facility contemplated by the Commitment Letter; (ii) satisfy on a timely basis all conditions within the control of Parent to obtaining the Financing, including delivery of all information required by items 4 and 10 of Exhibit C of the Commitment Letter, and (iii) negotiate and enter into definitive agreements with respect to the Financing (“Financing Agreements”) on the terms and conditions contained in the Commitment Letter (including any “market flex” provisions related thereto). Parent shall keep the Company reasonably informed with respect to all material activity concerning the status of the Financing and shall give the Company notice of any material change with respect to such Financing as promptly as practicable. Parent shall give the Company reasonably prompt notice of (A) any material breach by any party to the Commitment Letter of which Parent becomes aware to the extent such breach would reasonably be expected to impair or materially delay the Closing or result in insufficient financing to consummate the transactions contemplated by this Agreement; and (B) any termination of the Commitment Letter (or the Financing Documents) or the receipt of any notice of termination, breach or default under the Commitment Letter (or the Financing Documents). In the event that all conditions in the Commitment Letter have been satisfied or, upon funding will be satisfied, and Parent is otherwise required under the terms of this Agreement to consummate the Merger, Parent shall use reasonable best efforts to (1) consummate the Financing and (2) enforce its rights under the Commitment Letter (or the Financing Documents); provided that, notwithstanding anything to the contrary herein, Parent shall have no obligation hereunder to threaten or initiate any Action against any of the Financing Sources or any other party to the Commitment Letter or to the Financing Agreements. If any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Commitment Letter, Parent shall use reasonable best efforts to arrange and obtain alternative debt financing from alternative sources in an amount sufficient to consummate the transactions contemplated by this Agreement (the “Alternative Financing”); provided that the terms and conditions of such Alternative Financing (including with respect to conditionality, structure, covenants and pricing) shall be no less favorable, in the aggregate, to Parent than those contained in the Commitment Letter. For the purposes of this Agreement, (x) the term “Commitment Letter” shall be deemed to include any commitment letter or similar agreement with respect to any Alternative Financing arranged in compliance with this Section 7.19 (and any Commitment Letter remaining in effect at the time in question); and (y) the term “Financing Agreements” shall also be deemed to include any definitive agreements with respect to the Alternative Financing arranged in compliance with this Section 7.19 (and any Financing Agreements remaining in effect at the time in question).
(c) Prior to the Closing, the Company shall, and shall use its reasonable best efforts to cause its Subsidiaries and its and their respective Representatives to, provide to Parent and Merger Sub, and shall cause each of its Subsidiaries to use its reasonable best efforts to provide, and shall use commercially reasonable efforts to cause its non-legal Representatives, including accounting, to provide (in each case at Parent’s sole expense) all cooperation reasonably requested by Parent that is customary in connection with the arrangement arrangement, marketing and consummation of any Debt the Financing in connection with or, if applicable, the transactions contemplated hereby, including, but not limited to using commercially reasonable efforts to Alternative Financing (provided, however, that nothing in this Section 7.13 shall require such requested cooperation does not unreasonably interfere with the Company, ongoing operations of the Company or its Subsidiaries or any of its or their Representatives to disclose any information that is subject to attorney-client, attorney work product or similar privilege or to contravene Law or violate any ContractSubsidiaries), including using reasonable best efforts to: (i) assist in preparation for deliver to Parent financial and participate (and use commercially reasonable efforts to cause management of an appropriate level to participate) in a reasonable number of meetings (but no more than two (2) in person “bank meetings” and additional telephonic meetings at reasonably agreed times), due diligence sessions, drafting sessions, and presentations with prospective lenders and rating agencies, (ii) assist Parent with the timely preparation of customary materials for bank other pertinent information memoranda and ratings agency presentations (and assisting in the obtaining of corporate, credit and facility ratings from ratings agencies), and similar documents required to be delivered in connection with the Debt Financing (including executing a customary authorization letter to the extent reasonably requested by the Debt Financing Source authorizing the distribution of information about regarding the Company and its Subsidiaries to prospective lenders), (iii) furnish Parent with the historical financial statements of the Company reasonably requested by the Debt Financing Sources (subject to the immediately following proviso, the “Required Financial Information”), (iv) provide Parent and Merger Sub with information reasonably necessary to complete customary perfection certificates and other customary loan documents as may be required in connection with the Debt Financing as may be reasonably requested by Parent or and that is customarily required for the Merger Sub, (v) assist Parent in delivering original stock certificates in the possession of the Company, if any, and original stock powers (Financing or, if anyapplicable, similar documents for limited liability companiesthe Alternative Financing, including (A) the financial statements, business and other financial data expressly referred to in the Commitment Letter and (B) such information as to enable Parent to prepare any required pro forma financial statements; (ii) to the extent customary customarily required for the Financing or, if applicable, the Alternative Financing, make appropriate officers available to participate upon reasonable notice in a reasonable number of meetings, presentations, road shows, due diligence sessions and reasonably required on or prior sessions with rating agencies at times and locations to the Closing Date by any definitive documentation with respect to the Debt Financing (including assisting in obtaining copies thereof prior to the Closing Date), and (vi) take reasonable corporate actions, subject to and only effective upon the occurrence of the Closing, reasonably necessary to permit the consummation of the Debt Financing; provided, that the Company shall not be required to provide, or cause its Subsidiaries or Representatives to provide, cooperation under this Section 7.13(c) that: (A) unreasonably interferes with the ongoing business of the Company or its Subsidiariesmutually agreed; (Biii) causes any covenantprovide reasonable assistance to Parent in the preparation of customary offering documents, representation or warranty in this Agreement to be breached; (C) causes any condition set forth in Article VIII to fail to be satisfied or otherwise causes the breach of this Agreement; (D) requires the Company or its Subsidiariesincluding confidential information memoranda, prior to the Closingprospectuses, to pay any commitment or private placement memoranda, offering memoranda and bank confidential information memoranda and road show materials, rating agency materials and other similar fee or incur or become subject to any other liability or obligation documents necessary in connection with the Debt Financing which is not otherwise funded or promptly reimbursed by Parent; and (E) requires the Company and its Subsidiaries or their respective directorsor, officers, managers or employees to execute, deliver or enter into, or perform any agreement, document, certificate or instrument with respect to the Debt Financing and the directors and managers of the Company and its Subsidiaries shall not be required to adopt resolutions approving the agreements, documents and instruments pursuant to which the Debt Financing is obtained. So long as requested by Parent at least ten (10) days prior to the Closing Dateif applicable, the Company willAlternative Financing, and will cause each of its Subsidiaries toprovide reasonable and customary authorization letters related thereto; (iv) if requested in writing by a Financing Source, use commercially reasonable efforts furnish to furnish Parent and the Merger Sub promptly, and in any event at least three (3) Business Days prior to the Closing Date, such Financing Source all documentation and other information with respect to regarding the Company and its Subsidiaries that is required in connection with the Financing or, if applicable, the Alternative Financing, by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, includingincluding the Patriot Act, without limitationto the extent reasonably requested at least ten (10) Business Days prior to the Closing Date; (v) assist Parent in obtaining corporate, corporate family, credit, facility and securities ratings from rating agencies; (vi) assist Parent in obtaining (A) customary releases and consents (including consents with respect to inclusion of the Company’s financial statements and any audit opinions in respect thereof required to be included in any prospectus or offering memorandum or similar documents for any portion of the Financing or, if applicable, the PATRIOT Act Alternative Financing) and (B) customary comfort letters of the beneficial ownership regulation set forth Company’s current and former independent accountants (including “negative assurance” comfort), including by executing and delivering any customary representation letters to the accountants in 31 C.F.R. § 1010.230connection therewith and subject to the completion by such accountants of customary procedures related thereto; (vii) assist Parent in obtaining customary legal opinions related to the Company required to be obtained in connection with the Financing or, if applicable, the Alternative Financing; and (viii) obtain and, if applicable, execute customary payoff letters and execute customary certificates as may be reasonably requested by Parent as necessary in connection with the Financing or, if applicable, the Alternative Financing (provided, however, that (A) any such certificates will not be executed except in connection with the pricing or closing of any Financing or, if applicable, any Alternative Financing, and (B) no personal liability will be imposed on the officers or employees involved with such certificates). Notwithstanding the foregoing, nothing in this Agreement shall require the Company or any of its Subsidiaries or any of their respective Representatives (1) to take any action that would reasonably be expected to conflict with or violate the certificate of incorporation or bylaws of the Company or any of the provisions of the certificate of incorporation or bylaws (or equivalent organizational documents) of a Subsidiary of the Company or any Law or result in the breach of any contract if the consequences of the breach of such Law or contract would be material to the business or operations of the Company and its Subsidiaries, taken as a whole, (2) to pay any commitment or similar fee or reimburse any expenses incurred by Parent in connection with the Financing or, if applicable, the Alternative Financing, (3) to execute and deliver any definitive agreements with respect to the Financing prior to the Closing Date (other than any definitive agreements that are executed and delivered in escrow pending the occurrence of the Closing or effective as of the Closing) or incur any liability that is not contingent on the occurrence of the Closing Date or (4) to take any action in its capacity as a shareholder, member, partner or member of the board of directors of any of the Company or its Subsidiaries to authorize or approve the Financing; provided, however, that the foregoing clauses (3) and (4) of this sentence and clause (A) of the proviso in the immediately preceding sentence shall not apply to customary resolutions, representation letters, officer’s certificates, supplemental indentures (which do not result in the creation or assumption of any additional obligations by the Company or any of its Subsidiaries prior to the Effective Time) and similar documents required to be executed in connection with the closing of a debt financing into escrow on customary terms so long as such documents are not released from escrow or become effective prior to the Closing Date. The Company hereby consents to the reasonable use of its and its Subsidiaries’ trademarks, service marks or the Company’s logos in connection with the Debt Financingany Financing in a manner customary for such financing transactions; provided, that such trademarks, service marks or logos are used solely in a manner that is not intended to intended, or reasonably likely 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 intellectual property rightsAffiliates. At least one (1) Business Day prior to the anticipated Closing DateParent shall, the Company will deliver to Parent a customary payoff letter in form reasonably acceptable to Parent executed promptly upon request by the lenders of the Credit AgreementCompany, which letter will set forth (a) the total amount required to be paid at the Effective Time to satisfy in full the repayment of all Indebtedness outstanding under the Credit Agreement and, if any, all prepayment penalties, premiums and breakage costs that become payable upon such repayment and any other fees or expenses outstanding thereunder (the “Payoff Amount”), (b) the lenders’ obligation to release all liens and other security securing the Credit Agreement at Parent’s expense immediately after receiving the Payoff Amount, and (c) wire transfer instructions for paying the Payoff Amount. Notwithstanding the above, all corporate, limited liability or other organizational actions shall be deemed to become effective only if and when the Closing occurs and shall be derived exclusively from the authority of, and shall only be taken by, the board of directors of the Company and its Subsidiaries or other governing body of the Company and its Subsidiaries as constituted after giving effect to the Closing.
(ii) Upon the Company’s request, Parent will reimburse the Company for all reasonable and documented out-of-pocket costs (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiaries (other than with respect to any costs associated with preparing regular quarterly and annual financial statements) in performing their obligations under this Section 7.19, and indemnify the Company for any and all liabilities, losses, damages, claims, costs, fees expenses, interest, awards, judgments and expenses penalties suffered or incurred by the Company or any of its Subsidiaries arising therefrom, in each case other than to the extent any of the foregoing (x) arises from the bad faith, gross negligence or intentional misconduct of, or material breach of this Agreement by, the Company or any of its Subsidiaries or (y) arises from or relates to information provided by or on behalf of the Company or any of its Subsidiaries for use in connection with this Section 7.13the Financing or, if applicable, the Alternative Financing. Parent shall indemnify and hold harmless None of the Companyrepresentations, its Subsidiaries and their respective Representatives for any liabilities incurred by any of them in connection with any action taken by them pursuant to this Section 7.13 (other than arising from fraud, gross negligence warranties or intentional misrepresentation on the part covenants of the Company set forth in this Agreement shall be deemed to apply to, or deemed breached or violated by, any of the actions taken by the Company or any of its Subsidiaries or Representatives), whether or not at the Merger is consummated or express request of Parent set forth in this Agreement is terminated in accordance with Article IXSection 7.19. Each of Parent and Merger Sub acknowledge acknowledges and agree agrees that Section 7.13 shall not create any independent conditions to Closing and that obtaining in no event will the availability of the Financing is not constitute a condition precedent to the Closing.
Appears in 1 contract
Samples: Merger Agreement (Metaldyne Performance Group Inc.)
Financing Cooperation. (ia) Prior From the date hereof until the Closing (or the earlier termination of this Agreement pursuant to Section 9.1), subject to the Closinglimitations set forth in this Section 7.15, and unless otherwise agreed by Parent, the Company shall will use its reasonable best efforts to provide to Parent and Merger Subcooperate, and shall cause each of its Subsidiaries to use its reasonable best efforts to provide, and shall use commercially reasonable efforts to cause its non-Subsidiaries (and each of their respective officers, directors, employees, accountants, consultants, legal Representativescounsel, including accountingaffiliates and agents) to cooperate, to provide (in each case at Parent’s sole expense) all cooperation with Parent as reasonably requested by Parent that is customary or the Debt Financing Sources in connection with the arrangement of any Debt the Financing in connection with the transactions contemplated hereby, including, but not at Parent’s sole cost and expense. Such cooperation will include and be limited to using commercially reasonable best efforts to:
(i) make officers of appropriate seniority reasonably available, with appropriate advance notice and at times and locations reasonably acceptable to (provided, however, that nothing in this Section 7.13 shall require the Company, its Subsidiaries or any of its or their Representatives to disclose any information that is subject to attorney-client, attorney work product or similar privilege or to contravene Law or violate any Contract), (i) assist for participation in preparation for and participate (and use commercially reasonable efforts to cause management of an appropriate level to participate) in a reasonable number of meetings (but no more than two (2) in person “bank meetings” and , additional telephonic meetings bank calls during normal business hours at reasonably agreed times)times to be mutually agreed, due diligence sessions, drafting sessions, and presentations with prospective lenders and rating agencies, (ii) assist Parent with reasonable assistance in the timely preparation of customary materials for bank confidential information memoranda and ratings agency presentations (and assisting in the obtaining of corporate, credit and facility ratings from ratings agencies), and similar customary documents required to be delivered in connection with the Debt Financing (including executing a customary authorization letter to the extent reasonably requested by the Debt Financing Source authorizing the distribution of information about the Company and its Subsidiaries to prospective lenders), (iii) furnish Parent with the historical financial statements of the Company reasonably requested by the Debt Financing Sources (subject to the immediately following proviso, the “Required Financial Information”), (iv) provide Parent and Merger Sub with information reasonably necessary to complete customary perfection certificates and other customary loan documents as may be required in connection with the Debt Financing as may be reasonably requested by Parent or the Merger Subany Financing Source, (v) assist Parent in delivering original stock certificates in the possession of the Companyeach case, if any, and original stock powers (or, if any, similar documents for limited liability companies) to the extent customary and reasonably required on or prior to the Closing Date by any definitive documentation with respect to the Debt Financing (including assisting in obtaining copies thereof prior information relating to the Closing Date), and (vi) take reasonable corporate actions, subject to and only effective upon the occurrence of the Closing, reasonably necessary to permit the consummation of the Debt Financing; provided, that the Company shall not be required to provide, or cause its Subsidiaries or Representatives to provide, cooperation under this Section 7.13(c) that: (A) unreasonably interferes with the ongoing business of the Company or its Subsidiaries; (B) causes any covenant, representation or warranty in this Agreement to be breached; (C) causes any condition set forth in Article VIII to fail to be satisfied or otherwise causes the breach of this Agreement; (D) requires the Company or its Subsidiaries, prior to the Closing, to pay any commitment or other similar fee or incur or become subject to any other liability or obligation in connection with the Debt Financing which is not otherwise funded or promptly reimbursed by Parent; and (E) requires the Company and its Subsidiaries in connection with customary marketing efforts of Parent for all or their respective directors, officers, managers or employees to execute, deliver or enter into, or perform any agreement, document, certificate or instrument portion of the Financing;
(ii) furnish Parent and the Financing Sources with copies of such historical financial data with respect to the Company and its Subsidiaries which is prepared by the Company in the ordinary course of business and other financial data or other pertinent information as may be required to be delivered to satisfy a condition precedent under the Debt Commitment Letter, and is customarily required for the arrangement and syndication of debt financings similar to the Financing or is required pursuant to the Commitment Letters, but in any case, limited to:
(A) monthly production and the directors and managers accounting lease operating statements of the Company and its Subsidiaries shall not be required to adopt resolutions approving for (1) the agreements14 months ended June 30, documents 2019 and instruments pursuant to which (2) on or before the Debt Financing date that is obtained. So long as requested by Parent 75 calendar days after the end of each month thereafter, for each such month ending thereafter, (B) audited consolidated balance sheets and related statements of operations, stockholders’ equity and cash flows of the Company for the three most recently completed fiscal years ended at least ten (10) 75 days prior to the Closing Date, (C) subject to the receipt of customary non-reliance letters and reports prepared by third parties, reserve reports (and related data) and access to land records and databases and (D) unaudited consolidated balance sheet and related unaudited consolidated statements of operations, stockholders’ equity and cash flows of the Company willand its Subsidiaries, on a consolidated basis, as of and will cause for each subsequent fiscal quarter (other than the fourth fiscal quarter of any fiscal year) at least 60 days prior to the Closing Date (in each case, together with the corresponding comparative period from the prior fiscal year);
(iii) assist with the preparation of appropriate and customary materials relating to the Company and its Subsidiaries tofor rating agency presentations and meetings, use commercially reasonable efforts offering documents, marketing materials, bank information memoranda, lender presentations, investor presentations and similar documents, in each case, reasonably requested in connection with the Financing, and, in each case, with respect to furnish information relating to the Company and its Subsidiaries;
(iv) provide information reasonably requested by Parent or the Debt Financing Sources regarding the Company and its Subsidiaries at least four (4) Business Days prior to the Closing Date under applicable “know your customer,” anti-money laundering rules and regulations and the Merger Sub promptlyUSA PATRIOT Act of 2001, and in any event each case, requested in writing at least three nine (39) Business Days prior to the Closing Date;
(v) provide reasonable and customary authorization letters, all documentation confirmations and other undertakings to the Debt Financing Sources authorizing the distribution of information with respect relating to the Company and its Subsidiaries that is to prospective lenders (including with respect to presence or absence of material non-public information and accuracy of the information contained therein) and subject to customary confidentiality provisions;
(vi) assist with the preparation of any credit agreement, pledge and security documents, perfection certificates, mortgages, deeds of trust, hedging agreements, or other definitive financing documents or other documents related to the Debt Financing (including schedules, exhibits, solvency certificates in the form required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act and the beneficial ownership regulation set forth in 31 C.F.R. § 1010.230. The Company hereby consents to the use of its and its Subsidiaries’ trademarks, service marks or logos in connection with the Debt FinancingCommitment Letter, insurance certificates, certificates relating to legal opinions, evidence of corporate authority and other customary officer’s and secretary’s certificates) as may be reasonably requested by Parent; provided, that no obligation of the Company or any Subsidiary under any such trademarksdocument or agreement shall be effective until the Closing;
(vii) facilitate the pledging of collateral owned by the Company and its Subsidiaries as reasonably requested by Parent; provided, service marks or that no pledge shall be effective until the Closing; and
(viii) (A) allow the usual and customary use of the logos are of the Company and its Subsidiaries in connection with any debt financing (provided such logos shall be used solely in a manner that is not intended to or reasonably likely to harm harm, disparage or disparage otherwise adversely affect the Company and its Subsidiaries’ reputation or goodwill) and (B) in connection with the Closing, allow the placement of customary advertisements in financial and other newspapers and periodicals or on a home page or similar place for dissemination of customary information on the Internet or worldwide web as the Debt Financing Sources may choose, and circulate similar promotional materials in the form of a “tombstone” or otherwise describing aspects of the transactions contemplated hereby and the Debt Financing. provided, that Parent shall promptly upon receipt of a reasonably detailed invoice therefor, reimburse the Company for any reasonable and documented out of pocket expenses and costs incurred in connection with the obligations of the Company and its Subsidiaries under this Section 7.15; provided, further, except as expressly set forth herein, that nothing in this Agreement shall require the Company or its Subsidiaries to cause the delivery of (A) legal opinions or reliance letters, (B) any financial information in a form not customarily prepared by the Company with respect to such period or (C) any financial information with respect to a fiscal period that has not yet ended or has ended less than sixty (60) days prior to the date of such request (or, in the case of annual financial statements, seventy-five (75) days prior to such request).
(b) Notwithstanding anything to the contrary contained in this Agreement (including this Section 7.15):
(i) nothing in this Agreement (including this Section 7.15) shall require any such cooperation to the extent that it would: (A) require the Company or any of its Subsidiaries to pay any commitment or other fees, reimburse any expenses or otherwise incur any liabilities or give any indemnities prior to the reputation Closing that will not be reimbursed by Parent; (B) materially interfere with the ongoing business or goodwill operations of the Company or any of its Subsidiaries; (C) require the Company or any of its Subsidiaries to enter into any agreement or other document effective prior to the Closing (other than authorization letters, confirmations and undertakings described in Section 7.15(a)(iv) or Section 7.15(a)(v)) or agree to any change or modification of any existing agreement that would be effective prior to the Closing (other than customary authorization letters); (D) require, prior to the Effective Time, the Company, any of its Subsidiaries or any of their respective boards of directors (or equivalent bodies) to approve or authorize the Financing; (E) require any action that would conflict with or violate the organizational documents of the Company or any of its Subsidiaries or any Laws, orders or result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or default under, any material contract (including any Contract) to which the Company or any of its Subsidiaries is a party; (F) cause any director, officer, employee or stockholder of the Company or any of its Subsidiaries to incur any personal liability; (G) provide access to or disclose information that would jeopardize any attorney-client privilege of the Company or any of its Subsidiaries; or (H) prepare separate financial statements for any Subsidiary of the Company or change any fiscal period or prepare any financial statements or information that are not available to it and prepared in the ordinary course of its financial reporting practice; and
(ii) no action, liability or obligation (including any obligation to pay any commitment or other fees or reimburse any expenses) of the Company, its Subsidiaries, or any of their respective intellectual property rights. At least one (1) Business Day prior Representatives under any certificate, agreement, arrangement, document or instrument relating to the anticipated Closing Date, Financing (other than with respect to customary authorization letters) shall be effective until the Company will deliver to Parent a customary payoff letter in form reasonably acceptable to Parent executed by the lenders of the Credit Agreement, which letter will set forth (a) the total amount required to be paid at the Effective Time to satisfy in full the repayment of all Indebtedness outstanding under the Credit Agreement and, if any, all prepayment penalties, premiums and breakage costs that become payable upon such repayment and any other fees or expenses outstanding thereunder (the “Payoff Amount”), (b) the lenders’ obligation to release all liens and other security securing the Credit Agreement at Parent’s expense immediately after receiving the Payoff Amount, and Closing.
(c) wire transfer instructions for paying the Payoff Amount. Notwithstanding the above, all corporate, limited liability or other organizational actions Parent shall be deemed to become effective only if indemnify and when the Closing occurs and shall be derived exclusively from the authority of, and shall only be taken by, the board of directors of hold harmless the Company and its Subsidiaries or (other governing body than with respect to any of the Company and its Subsidiaries as constituted after giving effect to the Closing.
(ii) Upon the Company’s request, Parent will reimburse following that result from information furnished by the Company for all or its Subsidiaries) against any claim, loss, damage, injury, liability, judgment, award, penalty, fine, cost (including cost of investigation), reasonable and documented out-of-pocket costs, expenses (including reasonable and documented out-of-pocket fees and expenses of counsel and third-party accountants) or settlement payment incurred by as a result of such cooperation or on behalf the Financing (or, if applicable, Substitute Financing) and any information used in connection therewith; provided however, that the foregoing shall not apply to any item arising from the willful misconduct or gross negligence of the Company or any of its Subsidiaries in connection with this Section 7.13. Parent shall indemnify and hold harmless the Company, its Subsidiaries and or their respective Affiliates or Representatives. All non-public or other confidential information provided by the Company and its Affiliates and Representatives for any liabilities incurred by any of them in connection with any action taken by them pursuant to this Section 7.13 7.15 shall be kept confidential in accordance with Section 7.3.
(other than arising from fraudd) Notwithstanding anything to the contrary contained in this Agreement, gross negligence in no event shall the reasonable best efforts of Parent require or intentional misrepresentation on be deemed or construed to require Parent to pay any fees in excess of those contemplated by the part Debt Commitment Letter (whether to secure waiver of any conditions contained therein or otherwise).
(e) Notwithstanding anything to the contrary contained in this Agreement or any obligations of the Company or its Subsidiaries to deliver information to Parent or Representatives)the Debt Financing Sources pursuant to this Section 7.15, whether or not the Merger is consummated or this Agreement is terminated in accordance with Article IX. Parent and Merger Sub acknowledge and agree that Section 7.13 shall not create any independent conditions to Closing and that obtaining the Financing is not a condition be responsible for delivery of all information to the ClosingDebt Financing Sources in connection with the Debt Financing.
Appears in 1 contract
Financing Cooperation. (i) Prior to the Closing, the The Company shall use its commercially reasonable best efforts to provide to Parent and Merger Subto, and shall cause each of direct its Subsidiaries officers, directors, employees and other advisors or representatives to use its reasonable best efforts to provide, and shall use their commercially reasonable efforts to cause its non-legal Representativesto, including accounting, to provide (in each case at Parent’s sole expense) all cooperation reasonably requested by Parent that is customary and reasonable in connection with the arrangement of any Debt Financing debt financing or other alternative financing as may be reasonably requested in connection writing by Parent (provided that such requested cooperation does not unreasonably interfere with the transactions contemplated hereby, including, but not limited to using commercially reasonable efforts to (provided, however, that nothing in this Section 7.13 shall require ongoing operations of the Company, its Subsidiaries or any of its or their Representatives to disclose any information that is subject to attorney-client, attorney work product or similar privilege or to contravene Law or violate any Contract), including (ia) assist in preparation for and participate (and use commercially reasonable efforts to cause management of an appropriate level to participate) participation in a reasonable number of meetings (but no more than two (2) in person “bank meetings” and additional telephonic meetings at reasonably agreed times), due diligence sessions, drafting sessions, sessions and presentations with prospective lenders and rating agencieslender presentations, (iib) assist Parent assisting with the timely preparation of customary materials for bank confidential information memoranda and ratings agency presentations similar documents, (c) furnishing Parent and assisting its debt or other financing sources with such pertinent and customary information regarding the Company, including all presently available financial statements, financial projections and other financial data, in the obtaining of corporateeach case as reasonably requested in writing by Parent, credit (d) executing and facility ratings from ratings agencies)delivering any customary placement agreements, pledge and similar security documents, other definitive financing documents required to be delivered in connection with the Debt Financing (or other requested certificates or documents, including executing a customary authorization letter to the extent reasonably requested solvency certificate executed by the Debt Financing Source authorizing the distribution of information about the Company and its Subsidiaries to prospective lenders), (iii) furnish Parent with the historical financial statements Chief Financial Officer of the Company reasonably requested by the Debt Financing Sources (subject to the immediately following proviso, the “Required Financial Information”), (iv) provide Parent and Merger Sub with information reasonably necessary to complete customary perfection certificates and other customary loan documents as may be required in connection with the Debt Financing as may be reasonably requested by Parent or the Merger Sub, (v) assist Parent in delivering original stock certificates in the possession on behalf of the Company, if any, and original stock powers Company (or, if any, similar provided that such documents for limited liability companies) to will not take effect until the extent customary and reasonably required on or prior to the Closing Date by any definitive documentation with respect to the Debt Financing (including assisting in obtaining copies thereof prior to the Closing DateEffective Time), and (vie) take reasonable corporate actions, subject obtaining any intellectual property assignment agreements relating to and only effective upon the occurrence of the Closing, reasonably necessary to permit the consummation of the Debt Financing; provided, that the Company Intellectual Property, and making all necessary filings with governmental registration agencies to update ownership title in, and to effectuate the release of, any security interests granted in the Company Intellectual Property, in each case as reasonably requested in writing by Parent. Notwithstanding the foregoing, neither the Company nor any of its officers, directors, employees and other advisors and representatives shall not be required to providetake any action that would subject any of them to actual or potential liability, to bear any cost or cause its Subsidiaries expense or Representatives to provide, cooperation under this Section 7.13(c) that: (A) unreasonably interferes with the ongoing business of the Company or its Subsidiaries; (B) causes any covenant, representation or warranty in this Agreement to be breached; (C) causes any condition set forth in Article VIII to fail to be satisfied or otherwise causes the breach of this Agreement; (D) requires the Company or its Subsidiaries, prior to the Closing, to pay any commitment or other similar fee or make any other payment or incur or become subject to any other liability or obligation provide or agree to provide any indemnity in connection with the Debt Equity Financing which or any alternative financing or any cooperation provided pursuant to this Section 6.12, prior to the Effective Time, unless such action is not otherwise funded or promptly reimbursed contingent upon the Closing. Parent shall promptly, upon request by Parent; and (E) requires the Company, reimburse the Company and its Subsidiaries or their respective officers, directors, officers, managers or employees to execute, deliver or enter into, or perform any agreement, document, certificate or instrument with respect to the Debt Financing and the directors and managers of the Company and its Subsidiaries shall not be required to adopt resolutions approving the agreements, documents and instruments pursuant to which the Debt Financing is obtained. So long as requested by Parent at least ten (10) days prior to the Closing Date, the Company will, and will cause each of its Subsidiaries to, use commercially reasonable efforts to furnish Parent and the Merger Sub promptly, and in any event at least three (3) Business Days prior to the Closing Date, all documentation and other information with respect to the Company advisors and its Subsidiaries that is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act and the beneficial ownership regulation set forth in 31 C.F.R. § 1010.230. The Company hereby consents to the use of its and its Subsidiaries’ trademarks, service marks or logos in connection with the Debt Financing; provided, that such trademarks, service marks or logos are used solely in a manner that is not intended to or reasonably likely to harm or disparage the Company or any of its Subsidiaries or the reputation or goodwill of the Company or any of its Subsidiaries or any of their respective intellectual property rights. At least one (1) Business Day prior to the anticipated Closing Date, the Company will deliver to Parent a customary payoff letter in form reasonably acceptable to Parent executed by the lenders of the Credit Agreement, which letter will set forth (a) the total amount required to be paid at the Effective Time to satisfy in full the repayment of all Indebtedness outstanding under the Credit Agreement and, if any, all prepayment penalties, premiums and breakage costs that become payable upon such repayment and any other fees or expenses outstanding thereunder (the “Payoff Amount”), (b) the lenders’ obligation to release all liens and other security securing the Credit Agreement at Parent’s expense immediately after receiving the Payoff Amount, and (c) wire transfer instructions for paying the Payoff Amount. Notwithstanding the above, all corporate, limited liability or other organizational actions shall be deemed to become effective only if and when the Closing occurs and shall be derived exclusively from the authority of, and shall only be taken by, the board of directors of the Company and its Subsidiaries or other governing body of the Company and its Subsidiaries as constituted after giving effect to the Closing.
(ii) Upon the Company’s request, Parent will reimburse the Company representatives for all reasonable and documented out-of-pocket costs, fees costs and expenses (including reasonable attorneys’ fees) incurred by or on behalf of the Company or any of its Subsidiaries in connection with this Section 7.13. Parent shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives for any liabilities incurred by any of them in connection with any action taken by them pursuant to this Section 7.13 (other than arising from fraud, gross negligence or intentional misrepresentation on the part cooperation of the Company or its Subsidiaries or Representatives), whether or not the Merger is consummated or contemplated by this Agreement is terminated in accordance with Article IXSection 6.12. Parent and Merger Sub acknowledge shall jointly and agree that severally indemnify, defend and hold harmless the Company and its officers, directors, employees and other advisors and representatives from and against any and all losses, claims, damages, liabilities, fees, expenses, judgments and fines arising in whole or in part out of actions or omissions undertaken pursuant to this Section 7.13 shall not create any independent conditions to Closing and that obtaining the Financing is not a condition to the Closing6.12.
Appears in 1 contract
Financing Cooperation. (ia) Prior to the Closing, the The Company shall use its reasonable best efforts to provide to Parent and Merger Subto, and shall cause each of its Subsidiaries to use their reasonable best efforts to, and shall use its reasonable best efforts to provide, and shall use commercially reasonable efforts to cause its non-legal RepresentativesRepresentatives to use their reasonable best efforts to, including accounting, to provide (in each case at Parent’s sole expense) all cooperation reasonably requested by Parent that is customary in connection with the arrangement of any Debt Financing in connection with the transactions contemplated hereby, including, but not limited to using commercially reasonable efforts to (provided, however, that nothing in this Section 7.13 shall require the Company, its Subsidiaries or any of its or their Representatives to disclose any information that is subject to attorney-client, attorney work product or similar privilege or to contravene Law or violate any Contract), (i) assist in preparation for and participate (and use commercially reasonable efforts to cause management of an appropriate level to participate) in a reasonable number of meetings (but no more than two (2) in person “bank meetings” and additional telephonic meetings at reasonably agreed times), due diligence sessions, drafting sessions, and presentations with prospective lenders and rating agencies, (ii) assist Parent with the timely preparation of customary materials for bank information memoranda and ratings agency presentations (and assisting in the obtaining of corporate, credit and facility ratings from ratings agencies), and similar documents required to be delivered in connection with the Debt Financing (including executing a customary authorization letter to the extent reasonably requested by the Debt Financing Source authorizing the distribution of information about the Company and its Subsidiaries to prospective lenders), (iii) furnish Parent with the historical financial statements of the Company reasonably requested by the Debt Financing Sources (subject to the immediately following proviso, the “Required Financial Information”), (iv) provide Parent and Merger Sub with information reasonably necessary to complete customary perfection certificates and other customary loan documents as may be required in connection with the Debt 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), including (i) participation in a reasonable number of meetings (including customary one-on-one meetings among the Persons acting as lead arrangers or agents for, and prospective lenders and purchasers of, the Merger Subfinancing and senior management and Representatives, with appropriate seniority and expertise, of the Company and its Subsidiaries), due diligence sessions, lender presentations and “road shows” and sessions with rating agencies, (ii) assisting with the preparation of materials for rating agency presentations, private placement memoranda, marketing materials and presentations, bank information memoranda, prospectuses and similar documents required in connection with the Debt Financing, (iii) furnishing Parent and its Debt Financing sources with such pertinent and customary information regarding the Company and its Subsidiaries sufficient to create a customary confidential information memorandum, including financial statements, pro forma financial information, financial data, audit reports and other information of the type required by the terms of the Debt Commitment Letter, including furnishing Parent and its Financing Sources as promptly as reasonably practicable with (A) by a date that is not later than thirty (30) calendar days after the end of any fiscal month following the date hereof that is not a fiscal year end or fiscal quarter end, the unaudited consolidated balance sheet of the Company as of the end of such subsequent monthly period and the related unaudited statements of income and cash flows, (B) by a date that is not later than forty-five (45) calendar days after the end of any fiscal quarter following the date hereof that is not a fiscal year end, the unaudited consolidated balance sheet of the Company as of the end of such subsequent quarterly period and the related unaudited statements of income and cash flows and (C) by a date that is not later than ninety (90) calendar days after the end of any fiscal year, the audited consolidated balance sheet of the Company as of the end of such fiscal year, and the related audited statements of income and cash flows for the year then ended, and the notes and schedules thereto (the information described in clauses (B) and (C), the “Required Information”), (iv) facilitating the pledging of collateral and perfection of security interests (including obtaining customary payoff letters, lien releases and instruments of termination or discharge) as required by the Debt Commitment Letters, including obtaining legal opinions, surveys and title insurance, other certifications and documents reasonably requested by the arrangers of the Debt Financing for financings similar to the Debt Financing, and cooperating with and assisting Parent in connection with obtaining such items as reasonably requested in writing by Parent, (v) assist Parent in executing and delivering original stock any customary commitment letters, pledge and security documents and any other any customary collateral documents, other definitive financing documents or other requested certificates in or documents, including, a customary solvency certificate by the possession Chief Financial Officer of the CompanyCompany (provided that (A) none of the letters, if anyagreements, documents and original stock powers certificates shall be executed and delivered except at the Closing, (orB) the effectiveness thereof shall be conditioned upon, if anyor become operative after, similar documents for limited liability companies) to the extent customary and reasonably required on or prior to the Closing Date by any definitive documentation with respect to the Debt Financing (including assisting in obtaining copies thereof prior to the Closing Date), and (vi) take reasonable corporate actions, subject to and only effective upon the occurrence of the Closing, reasonably necessary to permit the consummation of the Debt Financing; provided, that the Company shall not be required to provide, or cause its Subsidiaries or Representatives to provide, cooperation under this Section 7.13(cClosing and (C) that: (A) unreasonably interferes with the ongoing business none of the Company or any of its Subsidiaries; (B) causes any covenant, representation or warranty in this Agreement to be breached; (C) causes any condition set forth in Article VIII to fail to be satisfied or otherwise causes the breach of this Agreement; (D) requires the Company Subsidiaries or its Subsidiaries, prior to the Closing, Representatives shall be required to pay any commitment or other similar fee or incur or become subject to any other liability or obligation in connection with the Financing prior to the Effective Time and (D) no personal liability shall be imposed on the officers, directors, employees or agents involved) and (vi) using reasonable best efforts to cooperate with Parent to satisfy the conditions precedent to the Debt Financing which is not otherwise funded or promptly reimbursed to the extent within the control of the Company and causing the taking of corporate actions by Parent; and (E) requires the Company and its Subsidiaries or their respective directors, officers, managers or employees reasonably necessary to execute, deliver or enter into, or perform any agreement, document, certificate or instrument with respect to permit the completion of the Debt Financing Financing.
(b) Parent shall promptly, upon request by the Company, reimburse the Company for all reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred and documented by the directors and managers Company or any of its Subsidiaries in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 7.05 and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all losses, damages, claims, costs 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 in writing by the Company or any of its Subsidiaries specifically for use in connection therewith; provided, however, that Parent shall not be required obligated to adopt resolutions approving reimburse the agreements, documents Company for any costs and instruments expenses pursuant to which the Debt Financing is obtained. So long as requested by Parent at least ten (10this Section 7.05(b) days prior to the Closing Dateextent such costs and expenses exceed $100,000 in the aggregate, and thereafter the Company will, and will cause each of its Subsidiaries to, use commercially reasonable efforts shall not be obligated to furnish Parent and the Merger Sub promptly, and in take any event at least three (3action pursuant to Section 7.05(a) Business Days prior to the Closing Dateextent such action would cause the Company to incur any additional out-of-pocket costs and expenses unless Parent agrees to reimburse the Company for such additional costs and expenses.
(c) The Company shall promptly provide Parent with an electronic version of the trademarks, all documentation service marks and other information with respect to corporate logo of the Company and its Subsidiaries that is required by regulatory authorities under applicable “know your customer” for use in marketing materials for the purpose of facilitating the syndication of the Debt Financing, and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act and the beneficial ownership regulation set forth in 31 C.F.R. § 1010.230. The Company hereby consents to the use of its and its Subsidiaries’ trademarks, service marks or logos the foregoing in connection with the Debt Financing; provided, provided that such trademarks, service marks or logos are used solely in a manner that is not intended to or reasonably likely to harm or disparage the Company or any of its Subsidiaries or their marks or the reputation or goodwill of the Company or any of its Subsidiaries or any of their respective intellectual property rights. At least one (1) Business Day prior to the anticipated Closing Date, the Company will deliver to Parent a customary payoff letter in form reasonably acceptable to Parent executed by the lenders of the Credit Agreement, which letter will set forth (a) the total amount required to be paid at the Effective Time to satisfy in full the repayment of all Indebtedness outstanding under the Credit Agreement and, if any, all prepayment penalties, premiums and breakage costs that become payable upon such repayment and any other fees or expenses outstanding thereunder (the “Payoff Amount”), (b) the lenders’ obligation to release all liens and other security securing the Credit Agreement at Parent’s expense immediately after receiving the Payoff Amount, and (c) wire transfer instructions for paying the Payoff Amount. Notwithstanding the above, all corporate, limited liability or other organizational actions shall be deemed to become effective only if and when the Closing occurs and shall be derived exclusively from the authority of, and shall only be taken by, the board of directors of the Company and its Subsidiaries or other governing body of the Company and its Subsidiaries as constituted after giving effect to the ClosingSubsidiaries.
(ii) Upon the Company’s request, Parent will reimburse the Company for all reasonable and documented out-of-pocket costs, fees and expenses incurred by or on behalf of the Company or any of its Subsidiaries in connection with this Section 7.13. Parent shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives for any liabilities incurred by any of them in connection with any action taken by them pursuant to this Section 7.13 (other than arising from fraud, gross negligence or intentional misrepresentation on the part of the Company or its Subsidiaries or Representatives), whether or not the Merger is consummated or this Agreement is terminated in accordance with Article IX. Parent and Merger Sub acknowledge and agree that Section 7.13 shall not create any independent conditions to Closing and that obtaining the Financing is not a condition to the Closing.
Appears in 1 contract
Samples: Merger Agreement (Telular Corp)
Financing Cooperation. (ia) Prior Subject to Section 6.10(c) and Section 6.10(d), from and after the Closingdate of this Agreement, and through the earlier of the Closing and the date on which this Agreement is terminated in accordance with Article VIII, if requested by Parent, the Company shall use its provide commercially reasonable best efforts to provide cooperation to Parent and Merger SubSub (including providing, subject to the subsequent sentence, reasonably available financial and shall cause each other pertinent information regarding the Company and the Company Subsidiaries for use in usual and customary marketing and offering documents and to enable Parent to prepare pro forma financial statements required by SEC rules or Parent’s financing sources) in the arrangement of its Subsidiaries to use its reasonable best efforts to provideany bank debt financing or any capital markets debt financing, and shall use commercially reasonable efforts to cause its non-legal Representatives, including accounting, to provide (in each case at Parent’s sole expense) all cooperation reasonably requested by Parent that is customary for any purpose in connection with the arrangement consummation of any Debt Financing in connection with the Merger and the other transactions contemplated hereby, includingincluding without limitation for the purposes of financing any amounts that may become due in respect of the indebtedness of the Company and the Company Subsidiaries as of the Closing pursuant to change-of-control provisions or otherwise (collectively, but the “Debt Refinancing”), it being understood that the Debt Refinancing may involve increases in the size of or availability under any of the debt obligations or facilities of the Company or the Company Subsidiaries. Notwithstanding the foregoing, the Company shall only be required to provide audited financial statements for the three fiscal years preceding the commencement of the marketing of any Debt Refinancing and unaudited financial statements for any subsequent fiscal quarter (it being understood and agreed that the availability of the Company’s financial statements on the SEC’s XXXXX system shall satisfy such requirement and the Company shall not limited be required to using provide any financial statements prior to the end of the applicable deadline to file such financial statements with the SEC with the Company’s annual and quarterly reports) and the Company shall not be required to provide any standalone financial statements of any Subsidiary.
(b) Subject to Section 6.10(c) and Section 6.10(d), 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, if reasonably requested by Parent, the Company shall provide commercially reasonable efforts cooperation to Parent and Merger Sub in taking such actions as are necessary, proper or advisable under (providedx) the indentures listed in Section 3.18(b)(ii) of the Company Disclosure Letter and (y) the credit agreements listed in Section 3.18(b)(ii) of the Company Disclosure Letter (collectively, however, that nothing “Existing Debt Documents”) in respect of the transactions contemplated by this Agreement. Subject to Section 7.13 shall require the Company, its Subsidiaries or any of its or their Representatives to disclose any information that is subject to attorney-client, attorney work product or similar privilege or to contravene Law or violate any Contract6.10(c) and Section 6.10(d), (i) assist in preparation for from and participate (and use commercially reasonable efforts to cause management after the date of an appropriate level to participate) in a reasonable number of meetings (but no more than two (2) in person “bank meetings” and additional telephonic meetings at reasonably agreed times), due diligence sessions, drafting sessionsthis Agreement, and presentations through the earlier of the Closing and the date on which this Agreement is terminated in accordance with prospective lenders Article VIII, if and rating agencies, (ii) assist Parent with the timely preparation of customary materials for bank information memoranda and ratings agency presentations (and assisting in the obtaining of corporate, credit and facility ratings from ratings agencies), and similar documents required to be delivered in connection with the Debt Financing (including executing a customary authorization letter to the extent reasonably requested by the Debt Financing Source authorizing the distribution of information about Parent in writing, the Company and its Subsidiaries shall provide commercially reasonable cooperation to prospective lenders), (iii) furnish Parent with the historical financial statements of the Company reasonably requested by the Debt Financing Sources (subject to the immediately following proviso, the “Required Financial Information”), (iv) provide Parent and Merger Sub with information reasonably necessary to complete in either (A) arranging for the termination of Existing Debt Documents (and the related repayment or redemption thereof), which repayment or redemption shall be the sole responsibility, cost and expense of Parent, and the procurement of customary perfection certificates payoff letters and other customary loan documents as may be required release documentation in connection with therewith or (B) obtaining any Consents required under any Existing Debt Documents to permit the Debt Financing consummation of the transactions contemplated by this Agreement as may be reasonably requested by Parent Parent, and if reasonably requested by Parent, the Company shall, and shall cause the Company Subsidiaries to, execute and deliver such customary notices, agreements, documents or instruments necessary in connection therewith.
(c) Notwithstanding anything in this Section 6.10 to the Merger Subcontrary, in no event shall the Company be required in connection with its obligations under this Section 6.10 to (i) incur or agree to incur any out-of-pocket expenses unless they are promptly reimbursed by Parent, (vii) assist Parent in delivering original stock certificates in the possession incur or agree to incur any commitment, tender, consent, amendment fee or any fee similar to any of the Company, if any, and original stock powers (or, if any, similar documents for limited liability companies) foregoing unless Parent provides the funding to the extent customary and reasonably required Company therefor in advance, (iii) amend or otherwise modify or agree to amend or otherwise modify any Existing Debt Document, which amendment or other modification is not conditioned on the Closing, (iv) incur any potential or actual liability or provide any indemnities in connection therewith or otherwise related to the Debt Refinancing prior to the Closing Date by any definitive documentation with respect to the Debt Financing (including assisting in obtaining copies thereof prior to the Closing Date), and (vi) take reasonable corporate actions, subject to and only effective unless contingent upon the occurrence of the Closing, reasonably necessary to permit (v) take any actions that would unreasonably interfere with or unreasonably disrupt the consummation normal operations and management of the Debt Financing; providedCompany and the Company Subsidiaries, (vi) take any actions that the Company shall not be required to provide, or cause its Subsidiaries or Representatives to provide, cooperation under this Section 7.13(c) that: reasonably believes could (A) unreasonably interferes with violate its or the ongoing business Company Subsidiaries’ certificate of incorporation or bye-laws (or comparable documents), (B) violate any applicable Law, (C) constitute a default or violation under, or give rise to any right of termination, cancellation or acceleration of any right or obligation of the Company or its the Company Subsidiaries or to a loss of any benefit to which the Company or the Company Subsidiaries is entitled under any provision of, any Contract, or (D) result in the creation or imposition of any Lien on any asset of the Company or the Company Subsidiaries; , (Bvii) causes waive or amend any covenantterms of this Agreement, (viii) take any action that could reasonably be expected to cause any representation or warranty or covenant contained in this Agreement to be breached; (C) causes breached or to cause any condition to the Closing set forth in Article VIII VII to fail to be satisfied or otherwise causes the cause any breach of this Agreement; , (Dix) requires provide access to or disclose information that the Company determines would jeopardize any attorney-client privilege of the Company or its any of the Company Subsidiaries, (x) fund any repayment, repurchase or redemption prior to the Closing, to pay (xi) result in any commitment of the Company’s or other similar fee or incur or become subject any of the Company Subsidiaries’ Representatives incurring any personal liability with respect to any other liability or obligation in connection with the Debt Financing which is not otherwise funded or promptly reimbursed by Parent; and matters relating to this Section 6.10, (Exii) requires the Company and its Subsidiaries or their respective directors, officers, managers or employees to execute, deliver or enter into, or perform any agreement, documentdocument or instrument, certificate or instrument including any definitive financing agreement, with respect to the Debt Financing and Refinancing that is not contingent upon the directors and managers Closing or that would be effective prior to Closing, (xiii) be responsible for preparing any pro forma financial statements, (xiv) pass resolutions or consents, approve or authorize the execution of the Company and its Subsidiaries shall not be required or take any other corporate action with respect to adopt resolutions approving the agreements, documents and instruments pursuant to which the Debt Financing Refinancing that is obtained. So long as requested by Parent at least ten (10) days not contingent on the Closing or that would be effective prior to the Closing Date, the Company will, and will or (xv) provide or cause each of its Subsidiaries to, use commercially reasonable efforts legal counsel to furnish provide any legal opinions.
(d) Parent and the Merger Sub shall promptly, and in any event at least three upon written request by the Company, (3i) Business Days prior to the Closing Date, all documentation and other information with respect to reimburse the Company and its Subsidiaries that is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act and the beneficial ownership regulation set forth in 31 C.F.R. § 1010.230. The Company hereby consents to the use of its and its Subsidiaries’ trademarks, service marks or logos in connection with the Debt Financing; provided, that such trademarks, service marks or logos are used solely in a manner that is not intended to or reasonably likely to harm or disparage the Company or any of its Subsidiaries or the reputation or goodwill of the Company or any of its Subsidiaries or any of their respective intellectual property rights. At least one (1) Business Day prior to the anticipated Closing Date, the Company will deliver to Parent a customary payoff letter in form reasonably acceptable to Parent executed by the lenders of the Credit Agreement, which letter will set forth (a) the total amount required to be paid at the Effective Time to satisfy in full the repayment of all Indebtedness outstanding under the Credit Agreement and, if any, all prepayment penalties, premiums and breakage costs that become payable upon such repayment and any other fees or expenses outstanding thereunder (the “Payoff Amount”), (b) the lenders’ obligation to release all liens and other security securing the Credit Agreement at Parent’s expense immediately after receiving the Payoff Amount, and (c) wire transfer instructions for paying the Payoff Amount. Notwithstanding the above, all corporate, limited liability or other organizational actions shall be deemed to become effective only if and when the Closing occurs and shall be derived exclusively from the authority of, and shall only be taken by, the board of directors of the Company and its Subsidiaries or other governing body of the Company and its Subsidiaries as constituted after giving effect to the Closing.
(ii) Upon the Company’s request, Parent will reimburse the Company for all reasonable and documented out-of-pocket costs, fees and expenses incurred by or on behalf of the Company or any of its Subsidiaries in connection with this Section 7.13. Parent shall indemnify and hold harmless the Company, its Subsidiaries Affiliates and their respective Representatives for any liabilities and all out-of-pocket costs and expenses (including attorneys’ and accountants’ fees) incurred by any of them in connection with any action taken by them the cooperation required pursuant to this Section 7.13 6.10 and (other than arising ii) defend, indemnify and hold harmless the Company, the Company Subsidiaries and its and their respective Representatives from, against and in respect of any and all claims, liabilities, losses, damages, judgments, fines, penalties, costs and expenses (including fees of legal counsel) resulting from fraudor incurred in connection with the cooperation required pursuant to this Section 6.10 or any information utilized in connection therewith. Notwithstanding this Section 6.10 or anything in this Agreement to the contrary, gross negligence or intentional misrepresentation on the part each of the Company or its Subsidiaries or Representatives), whether or not the Merger is consummated or this Agreement is terminated in accordance with Article IX. Parent and Merger Sub acknowledge and agree parties hereto agrees that Section 7.13 shall not create any independent conditions to Closing and that obtaining the Financing it is not a condition to the ClosingClosing that the Debt Refinancing, payoff, amendments or other related or similar actions described in this Section 6.10 be obtained.
(e) Notwithstanding anything to the contrary herein, it is understood and agreed that the condition precedent set forth in Section 7.03(b), as applied to the Company’s obligations under this Section 6.10, shall be deemed to be satisfied unless the Debt Refinancing has not been obtained as a result of the Company’s willful breach of its obligations under this Section 6.10.
Appears in 1 contract
Samples: Merger Agreement (Marubeni Corp /Fi)
Financing Cooperation. (ia) Prior to the ClosingEffective Time, the Company shall, and shall cause its Representatives to, use its commercially reasonable best efforts to provide to Parent and Merger Sub, and shall cause each of its Subsidiaries to use its reasonable best efforts to provide, and shall use commercially reasonable efforts to cause its non-legal Representatives, including accounting, to provide (in each case at Parent’s sole expense) Sub all cooperation that is reasonably requested by Parent that is customary in connection with any debt financing used to consummate the arrangement of Merger and any Debt Financing in connection with the other transactions contemplated hereby, including, but not limited to using commercially reasonable efforts to (hereby and thereby; provided, however, that nothing that, notwithstanding anything in this Section 7.13 6.19 to the contrary, no such requested cooperation may unreasonably or materially interfere with the ongoing operations of the Company and its Subsidiaries. Such cooperation shall require the Companyinclude, its Subsidiaries or any of its or their Representatives to disclose any information that is subject to attorney-client, attorney work product or similar privilege or to contravene Law or violate any Contract)without limitation, (i) assist to the extent reasonably available to the Company, furnishing Parent and Merger Sub as promptly as practicable with financial and other pertinent information regarding the Company and its Subsidiaries to consummate the debt financing as may be reasonably requested in preparation for writing by Parent and participate identifying any portion of such information that constitutes material non-public information (the information described in this clause (i) together with the customary authorization and use commercially reasonable efforts management representation letters referenced in clause (ii) below, being referred to cause as the “Required Information”), (ii) making senior management of an appropriate level the Company available at mutually agreeable times to participate) participate in a reasonable number of meetings (but no more than two (2) in person “bank meetings” and additional telephonic meetings at reasonably agreed times), presentations, due diligence sessions, drafting sessions, and presentations sessions with prospective lenders lenders, investors and rating agenciesagencies in connection with any debt financing used to consummate the Merger and any other transactions contemplated hereby, (iiiii) assist Parent assisting with the timely preparation of customary materials for bank information memoranda and ratings rating agency presentations (and assisting in the obtaining of corporate, credit and facility ratings from ratings agencies), offering documents, private placement memoranda, bank information memoranda and similar documents required all other material to be delivered used in connection with any debt financing used to consummate the Debt Financing Merger and any other transactions contemplated hereby (including executing a customary authorization letter to the extent reasonably requested by the Debt Financing Source authorizing the distribution of and management representation letters) and all documentation and other information about regarding the Company and its Subsidiaries to prospective lenders), (iii) furnish Parent with the historical financial statements of the Company reasonably requested by the Debt Financing Sources (subject to the immediately following proviso, the “Required Financial Information”), (iv) provide Parent and Merger Sub with information reasonably necessary to complete customary perfection certificates and other customary loan documents as may be required in connection with the Debt Financing as may be reasonably requested by Parent or the Merger Sub, (v) assist Parent in delivering original stock certificates in the possession of the Company, if any, and original stock powers (or, if any, similar documents for limited liability companies) to the extent customary and reasonably required on or prior to the Closing Date by any definitive documentation with respect to the Debt Financing (including assisting in obtaining copies thereof prior to the Closing Date), and (vi) take reasonable corporate actions, subject to and only effective upon the occurrence of the Closing, reasonably necessary to permit the consummation of the Debt Financing; provided, that the Company shall not be required to provide, or cause its Subsidiaries or Representatives to provide, cooperation under this Section 7.13(c) that: (A) unreasonably interferes with the ongoing business of the Company or its Subsidiaries; (B) causes any covenant, representation or warranty in this Agreement to be breached; (C) causes any condition set forth in Article VIII to fail to be satisfied or otherwise causes the breach of this Agreement; (D) requires the Company or its Subsidiaries, prior to the Closing, to pay any commitment or other similar fee or incur or become subject to any other liability or obligation in connection with the Debt Financing which is not otherwise funded or promptly reimbursed by Parent; and (E) requires the Company and its Subsidiaries or their respective directors, officers, managers or employees to execute, deliver or enter into, or perform any agreement, document, certificate or instrument with respect to the Debt Financing and the directors and managers of the Company and its Subsidiaries shall not be required to adopt resolutions approving the agreements, documents and instruments pursuant to which the Debt Financing is obtained. So long as requested by Parent at least ten (10) days prior to the Closing Date, the Company will, and will cause each of its Subsidiaries to, use commercially reasonable efforts to furnish Parent and the Merger Sub promptly, and in any event at least three (3) Business Days prior to the Closing Date, all documentation and other information with respect to the Company and its Subsidiaries that is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, includingincluding U.S.A. Patriot Act of 2001 and requested in writing by Parent, without limitation(iv) 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 other certificates or documents as may be reasonably requested by Parent (including a certificate of the PATRIOT Act chief executive officer or chief financial officer of the Company with respect to solvency matters and using reasonable efforts to obtain consents of accountants at the beneficial ownership regulation sole cost of Parent to use their reports in any materials relating to any debt financing used to consummate the Merger and any other transactions contemplated hereby) and otherwise reasonably facilitating the pledging of collateral (subject to customary funds certain limitations); provided, however, that no obligation of the Company or any of its Subsidiaries under any such certificate, document or instrument to which the Company is a party shall be effective until the Effective Time and (v) otherwise cooperating with Parent and Merger Sub in satisfying the conditions precedent set forth in 31 C.F.R. § 1010.230any definitive document related to any debt financing used to consummate the Merger and any other transactions contemplated thereby to the extent within the reasonable control of the Company. None of the Company or any of its Subsidiaries shall be required to pay any commitment or other similar fee, pay any expense or incur any other liability in connection with any debt financing used to consummate the Merger and any other transactions contemplated hereby prior to the Effective Time.
(b) The Company hereby consents to the use of its and its Subsidiaries’ trademarks, service marks or logos in connection with any debt financing used to consummate the Debt FinancingMerger and any other transactions contemplated hereby; provided, provided that such trademarks, service marks or logos are used solely in a manner that is not intended to or reasonably likely to harm or disparage the Company or any of its Subsidiaries or the reputation or goodwill of the Company or any of its Subsidiaries or any of their respective intellectual property rights. At least one .
(1c) Business Day The Company shall use commercially reasonable efforts to periodically update or correct any Required Information in order to ensure that such Required Information does not contain any untrue statement of material fact or omit to state any material fact necessary to make the statements contained therein not materially misleading.
(d) Nothing in this Section 6.19 shall require such cooperation to the extent it would (i) cause any condition to Closing set forth in Article 7 to fail to be satisfied or otherwise cause any breach of this Agreement (unless waived by Parent) or otherwise impair or delay the parties’ obligations under this Agreement, including the consummation of the Merger, (ii) require the Company or any of its Subsidiaries to take any action that will conflict with or violate the Company’s organizational documents or any Applicable Laws or result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or default under, any Contract to which the Company or any of its Subsidiaries is a party (in each case prior to the anticipated Closing DateEffective Time) or (iii) result in any equity holder, the Company will deliver to Parent a customary payoff letter in form reasonably acceptable to Parent executed by the lenders of the Credit Agreement, which letter will set forth (a) the total amount required to be paid at the Effective Time to satisfy in full the repayment of all Indebtedness outstanding under the Credit Agreement and, if any, all prepayment penalties, premiums and breakage costs that become payable upon such repayment and any other fees officer or expenses outstanding thereunder (the “Payoff Amount”), (b) the lenders’ obligation to release all liens and other security securing the Credit Agreement at Parent’s expense immediately after receiving the Payoff Amount, and (c) wire transfer instructions for paying the Payoff Amount. Notwithstanding the above, all corporate, limited liability or other organizational actions shall be deemed to become effective only if and when the Closing occurs and shall be derived exclusively from the authority of, and shall only be taken by, the board of directors of the Company and its Subsidiaries or other governing body of the Company and its Subsidiaries as constituted after giving effect to the Closing.
(ii) Upon the Company’s request, Parent will reimburse the Company for all reasonable and documented out-of-pocket costs, fees and expenses incurred by or on behalf director of the Company or any of its Subsidiaries incurring any personal liability with respect to any matters relating to any debt financing used to consummate the Merger and any other transactions contemplated hereby.
(e) Parent shall promptly, upon request by the Company, reimburse the Company for all reasonable out-of-pocket costs and expenses (including attorneys’ fees) incurred by the Company, its Subsidiaries and their respective Representatives in connection with any cooperation required by or requested in accordance with this Section 7.136.19. Parent The Buyer Entities and Merger Sub shall indemnify and hold harmless the Company, its Subsidiaries Affiliates and their respective Representatives for and against any liabilities and all liabilities, losses, damages, claims, costs and expenses, interest, awards, judgments and penalties suffered or incurred by any of them in connection with the arrangement of any action taken by them pursuant debt financing used to this Section 7.13 consummate the Merger and any other transactions contemplated hereby (other than arising from fraud, gross negligence negligence, willful misconduct or intentional misrepresentation misrepresentation) to the fullest extent permitted by Applicable Law and with appropriate contribution to the extent such indemnification is not available.
(f) Each Buyer Entity acknowledges and agrees that, none of the Company, its Subsidiaries or their Representatives shall have any responsibility for, or incur any liability to, any Person under, any debt financing that a Buyer Entity or Merger Sub may raise in connection with the transactions contemplated by this Agreement or any cooperation provided pursuant to this Section 6.19; provided, that upon the Closing the Company and its Subsidiaries may become guarantors or otherwise have obligations under the Buyer Entities’ debt financing. All information provided pursuant to this Section 6.19 shall be deemed Evaluation Material (as such term is defined in the Confidentiality Agreement) and be governed by the terms of the Confidentiality Agreement.
(g) Each Buyer Entity and Merger Sub acknowledges and agrees that (i) its obligation to consummate the Merger and the transactions contemplated by this Agreement shall not be conditioned in any respect on the part of performance by the Company or its Subsidiaries or Representatives)any other Person of any of the covenants contained in this Section 6.19, and (ii) none of the Buyer Entities nor Merger Sub shall be entitled to any remedies, whether at law or not in equity (including pursuant to Section 8.02 or Section 9.09) in the Merger is consummated event of any failure by the Company or any other Person to perform in any respect any of the covenants contained in this Agreement is terminated in accordance with Article IX. Parent and Merger Sub acknowledge and agree that Section 7.13 shall not create any independent conditions to Closing and that obtaining the Financing is not a condition to the Closing6.19.
Appears in 1 contract
Samples: Merger Agreement (Mac-Gray Corp)
Financing Cooperation. (ia) Prior to Seller shall, and shall cause the Closing, members of the Company Group to, and each of Seller and the members of the Company Group shall use its reasonable best efforts to provide to Parent and Merger Subcause their respective Representatives to, and shall cause each of its Subsidiaries to use its reasonable best efforts to provide, and shall use commercially reasonable efforts to cause its non-legal Representatives, including accounting, to provide (in each case at Parent’s sole expense) all such customary cooperation as is reasonably requested by Parent that is customary Xxxxx in writing in connection with the arrangement Financing (which term, for purposes of this Section 6.20, shall include any Debt Financing other financing incurred in lieu thereof or otherwise in connection with the transactions contemplated hereby, including, Share Purchase). Such cooperation shall include but not be limited to using commercially reasonable efforts to (provided, however, that nothing in this Section 7.13 shall require the Company, its Subsidiaries or any of its or their Representatives to disclose any information that is subject to attorney-client, attorney work product or similar privilege or to contravene Law or violate any Contract), following:
(i) assist in preparation for and participate (and use commercially reasonable efforts to cause management of an appropriate level to participate) in a reasonable number of meetings (but no more than two (2) in person “bank meetings” and additional telephonic meetings at reasonably agreed times), due diligence sessions, drafting sessions, and presentations with prospective lenders and rating agencies, (ii) assist Parent assisting with the timely preparation and negotiation of customary materials for rating agency presentations and materials, credit agreements, indentures, bank information memoranda memoranda, syndication documents and ratings agency presentations (materials, lender presentations, offering documents, prospectuses, memoranda, investor presentations, purchase agreements, guarantees, pledge and assisting in the obtaining of corporatesecurity documents, credit and facility ratings from ratings agencies), closing certificates and similar documents required to be delivered in connection with the Debt Financing Financing;
(including executing a customary authorization letter ii) providing Buyer with financial, business and other information of the Company Group that is reasonably requested by Buyer to the extent reasonably requested by necessary to permit Buyer to prepare pro forma financial information and pro forma financial statements, and with the Debt Financing Source authorizing preparation of projections, it being agreed that Buyer shall provide (A) the distribution proposed aggregate amount of information about debt financing, together with assumed interest rates and fees and expenses relating to the Company incurrence of such debt and its Subsidiaries to prospective lenders(B) any post-Closing or pro forma cost savings, synergies, capitalization, ownership or other pro forma adjustments in each case arising from the Share Purchase ((A) and (B), the “Buyer Pro Forma Information”);
(iii) furnish Parent with (A) authorizing (which may be done on a basis that is contingent upon the historical financial statements of the Company reasonably requested by the Debt Financing Sources (subject to the immediately following proviso, the “Required Financial Information”Closing occurring substantially simultaneously), (iv) provide Parent executing and Merger Sub with information reasonably necessary to complete customary perfection delivering any pledge and security documents, supplemental indentures, other definitive financing documents, or other certificates and other customary loan or documents as may be required in connection with the Debt Financing as may be reasonably requested by Parent Buyer; (B) giving Buyer reasonable access to the offices, properties, books, records and other information of the Company Group to facilitate the granting of security in any collateral; provided that such access shall not extend to any invasive sampling or analysis of soil, groundwater, indoor air, building material or other environmental media including of the Merger Sub, sort generally referred to as a Phase II environmental investigation without the express written consent of Seller; (C) assisting with the provision of the insurance certificates and endorsements; and (D) otherwise reasonably facilitating the pledging of collateral and the granting of security interests in respect of the Financing;
(iv) furnishing Buyer with the Required Financing Information and such other information reasonably requested in connection with the Financing for use in connection with the Financing (including due diligence on behalf of the Financing providers);
(v) assist Parent furnishing Buyer with the unaudited consolidated balance sheet and the related unaudited consolidated statement of income of the Company Group as of and for each fiscal quarter ended at least 60 days prior to the Closing Date;
(vi) executing and delivering customary authorization letters to the Financing providers authorizing the distribution of information regarding the Company Group to prospective lenders or investors in delivering original stock certificates connection with the Financing and containing a customary representation that the public side versions of such documents do not include material non-public information about the Company Group or its securities, and a customary representation as to the accuracy of the information contained in the possession disclosure and marketing materials related to the Financing (“Financing Authorization Letters”);
(vii) causing its independent accountants to (A) provide drafts and executed versions of customary comfort letters (including “negative assurance” comfort) with respect to financial information and pro forma financial information relating to the Company Group as reasonably requested by Buyer or as necessary or customary for financings similar to the Financing (including any offering or private placement of debt securities), (B) provide assistance in the preparation of pro forma financial statements and information, and (C) otherwise provide customary assistance;
(viii) (A) cooperating with Financing providers in performing due diligence including, upon reasonable request and with reasonable advance notice, direct contact between appropriate members of senior management of the CompanyCompany Group, if anyon the one hand, and original stock powers the Financing providers, on the other hand, and (or, if any, similar documents for limited liability companiesB) assisting in obtaining credit ratings;
(ix) to the extent customary requested at least ten Business Days prior to the Closing Date, promptly furnishing Buyer and reasonably required on or the Financing providers at least three Business Days prior to the Closing Date with all documentation and other information relating to the Company Group that any lender providing or arranging the Financing has determined is required by any definitive documentation bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act, and beneficial ownership Laws, including a beneficial ownership certification in relation to the Company Group, which certification shall be substantially similar 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; and
(x) if Buyer reasonably requests, making available on its website material non-public information with respect to the Debt Financing Company Group which Buyer reasonably determines (including assisting and the Company does not unreasonably object) to include in obtaining copies thereof a customary “public side” offering or marketing document in connection with the Financing.
(b) Notwithstanding anything in this Section 6.20 to the contrary, in fulfilling its obligations pursuant to this Section 6.20, Seller and the Company Group will not be required to: (i) prior to the Closing Date), and (vi) take reasonable corporate actionsincur any liability, subject or commit to and only effective upon the occurrence of the Closingincur, reasonably necessary to permit the consummation of the Debt Financing; providedor pay, that the Company shall not or be required to providepay or reimburse, or cause its Subsidiaries or Representatives commit to providereimburse, cooperation under this Section 7.13(c) that: (A) unreasonably interferes with the ongoing business of the Company or its Subsidiaries; (B) causes any covenant, representation or warranty in this Agreement to be breached; (C) causes any condition set forth in Article VIII to fail to be satisfied or otherwise causes the breach of this Agreement; (D) requires the Company or its Subsidiaries, prior to the Closing, to pay any commitment fee or other similar fee fee, cost, expense, indemnity, liability, obligation, amount or incur or become subject to any other liability or obligation payment in connection with the Debt Financing which is not otherwise funded or prior to the Closing (other than customary expenses in connection with the cooperation described in this Section 6.20 that are promptly reimbursed by ParentXxxxx); and (Eii) requires prior to the Company and its Subsidiaries or their respective directorsClosing Date, officers, managers or employees to execute, deliver or enter into, or perform any agreement, document, certificate or instrument taking effect prior to the Closing with respect to the Debt Financing (other than (A) Payoff Notices and (B) Financing Authorization Letters), and the directors directors, members, general partners and managers (and any equivalent governing body) of the Company and or its Subsidiaries shall not be required to adopt resolutions approving the agreements, documents and instruments taking effect prior to the Closing (except to the extent solely with respect to any directors continuing in such directors’ capacities for the Company or the same Subsidiary from and after the Closing) pursuant to which the Debt Financing is obtained. So long as requested by Parent at least ten obtained (10) days prior to the Closing Dateincluding, the Company will, and will cause each of its Subsidiaries but not limited to, use commercially reasonable efforts to furnish Parent and the Merger Sub promptlyany credit or other agreements, and in pledge or security documents, or other certificates); (iii) cause any event at least three (3) Business Days prior to the Closing Datedirector, all documentation and other information with respect to the Company and its Subsidiaries that is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act and the beneficial ownership regulation set forth in 31 C.F.R. § 1010.230. The Company hereby consents to the use officer or employee or stockholder of its and its Subsidiaries’ trademarks, service marks or logos in connection with the Debt Financing; provided, that such trademarks, service marks or logos are used solely in a manner that is not intended to or reasonably likely to harm or disparage the Company or any of its Subsidiaries to incur any personal liability that would be effective prior to the Closing Date or for which such Person will not be indemnified; (iv) provide cooperation that unreasonably interferes (in the reputation judgment of the Company) with the ongoing business or goodwill operations of the Company or its Subsidiaries; (v) provide cooperation that causes any representation and warranty or covenant or other obligation in this Agreement to be breached; (vi) provide cooperation that causes any closing condition set forth in Article II to fail to be satisfied or would, based on the advice of the Company’s legal counsel (which, for the avoidance of doubt, may be internal counsel), conflict with, violate or result in a breach of or default under any Material Contract (including this Agreement) (to the extent not entered into in contemplation of contravening or circumventing the cooperation obligation set forth in this Section 6.20) or any organizational document of the Company or its Subsidiaries; (vii) provide cooperation that would cause competitive harm to the Company or its Subsidiaries, if the transactions contemplated by this Agreement are not consummated; (viii) provide any legal opinion or other opinion of counsel, or any information that would, based on the good faith advice of the Company’s legal counsel (which, for the avoidance of doubt, may be internal counsel), result in a violation of applicable law or loss of attorney-client privilege or that is attorney work product or breach any confidentiality obligations binding on the Company, its Subsidiaries or any of their Affiliates or any of their Representatives; provided, that the Company or its Subsidiaries shall use reasonable best efforts to notify Buyer that such information is being withheld on such ground and shall use reasonable best efforts to disclose any information being withheld, in each case, to the extent such notification or disclosure would not violate such applicable law or result in the loss of (or hinder) such privilege or such attorney work product; (ix) encumber any of the assets of the Company or its Subsidiaries or otherwise be an issuer, guarantor or other obligor with respect to the Financing prior to Closing (or provide any pre-filing Uniform Commercial Code financing statement authorization letter or agreement prior to Closing); (x) provide assistance, or execute or deliver any documents or information with respect to any Person other than solely the Company and its Subsidiaries; (xi) prepare any pro forma financial statements; or (xii) pay or incur any amount that would constitute Indebtedness of the Company or any of its Subsidiaries or would reduce the consideration that would otherwise be owed by Buyer under this Agreement. For the avoidance of doubt, in connection with any request for information from, or any request for any effort or action by, the Company, Buyer shall provide copies of the then current draft of the applicable documentation to which such request relates, in each case, to the extent reasonably necessary for the Company to provide the requested information, make the requested effort or take the requested action. Other than as provided in this Section 6.20, in no event shall the Company, its Subsidiaries or their respective Subsidiaries be required to pay any commitment or other fee or amount or incur any liability (including due to any act or omission by the Company, its Subsidiaries or any of their respective intellectual property rightsAffiliates or Representatives) or expense (including legal and accounting expenses) in connection with assisting Buyer in arranging the Financing or as a result of any information provided by the Company, its Subsidiaries or any of their respective Affiliates or Representatives in connection with the Financing. At least one (1) Business Day prior to For the anticipated Closing Dateavoidance of doubt, the Company will deliver to Parent a customary payoff letter parties hereto acknowledge and agree that the provisions contained in form reasonably acceptable to Parent executed by this Section 6.20 and Section 6.22 represent the lenders of the Credit Agreement, which letter will set forth (a) the total amount required to be paid at the Effective Time to satisfy in full the repayment of all Indebtedness outstanding under the Credit Agreement and, if any, all prepayment penalties, premiums and breakage costs that become payable upon such repayment and any other fees or expenses outstanding thereunder (the “Payoff Amount”), (b) the lenders’ obligation to release all liens and other security securing the Credit Agreement at Parent’s expense immediately after receiving the Payoff Amount, and (c) wire transfer instructions for paying the Payoff Amount. Notwithstanding the above, all corporate, limited liability or other organizational actions shall be deemed to become effective only if and when the Closing occurs and shall be derived exclusively from the authority of, and shall only be taken by, the board of directors sole obligations of the Company and its Subsidiaries or other governing body of the Company and its Subsidiaries as constituted after giving effect their respective Affiliates and Representatives with respect to the Closing.
(ii) Upon the Company’s request, Parent will reimburse the Company for all reasonable and documented out-of-pocket costs, fees and expenses incurred by or on behalf of the Company or any of its Subsidiaries cooperation in connection with the Financing and no other provisions of this Agreement (including the Exhibits and Schedules hereto) shall be deemed to expand or modify such obligations. In addition, the condition set forth in Section 7.13. Parent shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives for any liabilities incurred by any of them in connection with any action taken by them pursuant to this Section 7.13 (other than arising from fraud, gross negligence or intentional misrepresentation on the part of the Company or its Subsidiaries or Representatives2.7(b)(i), whether or not the Merger is consummated or this Agreement is terminated in accordance with Article IX. Parent and Merger Sub acknowledge and agree that Section 7.13 shall not create any independent conditions to Closing and that obtaining the Financing is not a condition as it applies to the Closing.Seller’s obligations in this Section
Appears in 1 contract
Financing Cooperation.
(ia) Prior From the date hereof until the Closing (or the earlier termination of this Agreement pursuant to Section 8.01), subject to the Closing, the Company shall use its reasonable best efforts to provide to Parent and Merger Sub, and shall cause each of its Subsidiaries to use its reasonable best efforts to provide, and shall use commercially reasonable efforts to cause its non-legal Representatives, including accounting, to provide (in each case at Parent’s sole expense) all cooperation reasonably requested by Parent that is customary in connection with the arrangement of any Debt Financing in connection with the transactions contemplated hereby, including, but not limited to using commercially reasonable efforts to (provided, however, that nothing limitations set forth in this Section 7.13 shall require the Company, its Subsidiaries or any of its or their Representatives to disclose any information that is subject to attorney-client, attorney work product or similar privilege or to contravene Law or violate any Contract), (i) assist in preparation for and participate (and use commercially reasonable efforts to cause management of an appropriate level to participate) in a reasonable number of meetings (but no more than two (2) in person “bank meetings” and additional telephonic meetings at reasonably agreed times), due diligence sessions, drafting sessions5.06, and presentations with prospective lenders and rating agencies, (ii) assist Parent with the timely preparation of customary materials for bank information memoranda and ratings agency presentations (and assisting in the obtaining of corporate, credit and facility ratings from ratings agencies), and similar documents required to be delivered in connection with the Debt Financing (including executing a customary authorization letter to the extent reasonably requested by the Debt Financing Source authorizing the distribution of information about the Company and its Subsidiaries to prospective lenders), (iii) furnish Parent with the historical financial statements of the Company reasonably requested by the Debt Financing Sources (subject to the immediately following proviso, the “Required Financial Information”), (iv) provide Parent and Merger Sub with information reasonably necessary to complete customary perfection certificates and other customary loan documents as may be required in connection with the Debt Financing as may be reasonably requested by Parent or the Merger Sub, (v) assist Parent in delivering original stock certificates in the possession of the Company, if any, and original stock powers (or, if any, similar documents for limited liability companies) to the extent customary and reasonably required on or prior to the Closing Date by any definitive documentation with respect to the Debt Financing (including assisting in obtaining copies thereof prior to the Closing Date), and (vi) take reasonable corporate actions, subject to and only effective upon the occurrence of the Closing, reasonably necessary to permit the consummation of the Debt Financing; provided, that the Company shall not be required to provide, or cause its Subsidiaries or Representatives to provide, cooperation under this Section 7.13(c) that: (A) unreasonably interferes with the ongoing business of the Company or its Subsidiaries; (B) causes any covenant, representation or warranty in this Agreement to be breached; (C) causes any condition set forth in Article VIII to fail to be satisfied or unless otherwise causes the breach of this Agreement; (D) requires the Company or its Subsidiaries, prior to the Closing, to pay any commitment or other similar fee or incur or become subject to any other liability or obligation in connection with the Debt Financing which is not otherwise funded or promptly reimbursed agreed by Parent; and (E) requires the Company and its Subsidiaries or their respective directors, officers, managers or employees to execute, deliver or enter into, or perform any agreement, document, certificate or instrument with respect to the Debt Financing and the directors and managers of the Company and its Subsidiaries shall not be required to adopt resolutions approving the agreements, documents and instruments pursuant to which the Debt Financing is obtained. So long as requested by Parent at least ten (10) days prior to the Closing Date, the Company will, and will cause each of its Subsidiaries to, and will use commercially its reasonable efforts to cause its and its Subsidiaries’ Representatives to, use its or their reasonable best efforts to cooperate with Parent as reasonably requested by Parent in connection with Parent’s arrangement of the Financing (which, solely for purposes of this Section 5.06 and the use of the term Financing Party in this Section 5.06, shall include any alternative equity or debt financings, all or a portion of which will be used to fund the Cash Consideration). Such cooperation will include using reasonable best efforts to:
(i) cooperate with the marketing efforts of Parent for all or any part of the Financing, including making appropriate officers reasonably available, with appropriate advance notice, for participation in lender or investor meetings, due diligence sessions, meetings with ratings agencies and road shows, and reasonable assistance in the preparation of confidential information memoranda, private placement memoranda, prospectuses, lender and investor presentations and similar documents as may be reasonably requested by Parent or any Financing Party, in each case, with respect to information relating to the Company and its Subsidiaries in connection with such marketing efforts;
(ii) furnish Parent and the Merger Sub promptly, Financing Parties with the Required Financial Information and in any event at least three (3) Business Days prior to the Closing Date, all documentation and other information with respect to the Company and its Subsidiaries as is reasonably requested by Parent or any Financing Party and is customarily (A) required for the marketing, arrangement and syndication of financings similar to the Financing or (B) used in the preparation of customary offering or information documents or rating agency, lender presentations or road shows relating to the Financing;
(iii) request that the Company’s independent accountants participate in drafting sessions and accounting due diligence sessions and cooperate with the Financing (including as set forth in the Debt Letters as in effect on the date of this Agreement) or in connection with a customary offering of securities, including the type described in the Commitment Letter, consistent with their customary practice, including requesting that they provide customary consents and comfort letters (including “negative assurance” comfort) to the extent required in connection with the marketing and syndication of the Financing (including as set forth in the Debt Letters as in effect on the date of this Agreement) or as are customarily required in an offering of securities of the type contemplated by the Financing;
(iv) obtain or provide certificates and other customary documents (other than legal opinions) relating to the Financing as reasonably requested by Xxxxxx;
(v) cooperate in satisfying the conditions precedent set forth in any definitive documentation relating to the Financing to the extent the satisfaction of such condition reasonably requires the cooperation of, or is within the control of, the Company;
(vi) furnish all documentation and other information required by regulatory authorities a Governmental Entity or any Financing Party under applicable “know your customer” and anti-money laundering rules and regulations, includingincluding the USA PATRIOT ACT (Title III of Pub. L. 107-56 (signed into law October 26, without limitation2001)), to the PATRIOT extent reasonably requested by Purchaser at least 10 Business Days prior to the anticipated Closing Date;
(vii) assist Parent in obtaining any credit ratings from rating agencies contemplated by the Debt Letters; and
(viii) use reasonable best efforts to obtain such consents, waivers, estoppels, approvals, authorizations and instruments which may be requested by Parent in connection with the Financing; provided, further, that nothing in this Agreement shall require the Company to cause the delivery of (1) legal opinions or reliance letters or any certificate as to solvency or any other certificate necessary for the Financing, other than as allowed by Section 5.06(a)(iii), (2) any audited financial information or any financial information prepared in accordance with Regulation S-K or Regulation S-X under the Securities Act of 1933, as amended, or any financial information in a form not customarily prepared by the Company with respect to such period or (3) any financial information with respect to a month or fiscal period that has not yet ended or has ended less than forty-five (45) days prior to the date of such request.
(b) Notwithstanding anything to the contrary contained in this Agreement (including this Section 5.06): (i) nothing in this Agreement (including this Section 5.06) shall require any such cooperation to the extent that it would (1) require the Company to pay any commitment or other fees, reimburse any expenses or otherwise incur any liabilities or give any indemnities prior to the Closing, (2) unreasonably interfere with the ongoing business or operations of the Company or its Subsidiaries, or (3) require the Company or any of the Company Subsidiaries to enter into or approve any agreement or other documentation effective prior to the Closing and (ii) no action, liability or obligation (including any obligation to pay any commitment or other fees or reimburse any expenses) of the beneficial ownership regulation set forth in 31 C.F.R. § 1010.230Company, its Subsidiaries, or any of their respective Representatives under any certificate, agreement, arrangement, document or instrument relating to the Financing shall be effective until the Closing. The Company hereby consents to the use of its and its Subsidiaries’ trademarks, service marks or logos in connection with the Debt FinancingFinancing in a form and manner mutually agreed with the Company; provided, however, that such trademarks, service marks or logos are used solely in a manner that is not intended to intended, or reasonably likely 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 intellectual property rights. At least one (1) Business Day prior to subsidiaries or the anticipated Closing Date, the Company will deliver to Parent a customary payoff letter in form reasonably acceptable to Parent executed by the lenders reputation or goodwill of any of the Credit Agreement, which letter will set forth (a) the total amount required to be paid at the Effective Time to satisfy in full the repayment of all Indebtedness outstanding under the Credit Agreement and, if any, all prepayment penalties, premiums and breakage costs that become payable upon such repayment and any other fees or expenses outstanding thereunder (the “Payoff Amount”), (b) the lenders’ obligation to release all liens and other security securing the Credit Agreement at Parent’s expense immediately after receiving the Payoff Amount, and foregoing.
(c) wire transfer instructions for paying the Payoff Amount. Notwithstanding the above, all corporate, limited liability or other organizational actions Parent shall be deemed to become effective only if and when the Closing occurs and shall be derived exclusively from the authority of, and shall only be taken by, the board of directors of the Company and its Subsidiaries or other governing body of the Company and its Subsidiaries as constituted after giving effect to the Closing.
(iii) Upon promptly upon request by the Company’s request, Parent will reimburse the Company for all of its reasonable and documented out-of-pocket costs, fees and expenses (including reasonable fees and expenses of counsel and accountants) incurred by or on behalf the Company, any of the Company or Subsidiaries, any of its Subsidiaries or their Representatives in connection with any cooperation contemplated by this Section 7.13. Parent shall 5.06 and (ii) indemnify and hold harmless the Company, its the Company Subsidiaries and its and their Representatives against any claim, loss, damage, injury, liability, judgment, award, penalty, fine, cost (including cost of investigation), expense (including fees and expenses of counsel and accountants) or settlement payment incurred as a result of, or in connection with, such cooperation or the Financing and any information used in connection therewith other than those claims, losses, damages, injuries, liabilities, judgments, awards, penalties, fines, costs, expenses and settlement payment arising out of or resulting from the gross negligence, fraud or willful misconduct of the Company, any of the Company Subsidiaries or any of their respective Representatives for any liabilities incurred as finally determined by any a court of them in connection with any action taken by them pursuant to this Section 7.13 (other than arising from fraud, gross negligence or intentional misrepresentation on the part of the Company or its Subsidiaries or Representatives), whether or not the Merger is consummated or this Agreement is terminated in accordance with Article IX. Parent and Merger Sub acknowledge and agree that Section 7.13 shall not create any independent conditions to Closing and that obtaining the Financing is not a condition to the Closing.competent jurisdiction.
Appears in 1 contract
Samples: Merger Agreement
Financing Cooperation. (i) Prior From the date of this Agreement until the earlier of the Closing and the termination of this Agreement in accordance with Article IX, subject to the Closinglimitations set forth in this Section 6.14, and unless otherwise agreed by Parent, the Company shall use its reasonable best efforts to provide to Parent and Merger Subwill, and shall will cause each the other members of its Subsidiaries to use its reasonable best efforts to providethe Company Group to, and shall use commercially reasonable efforts to cause its non-legal Representatives, including accounting, to provide (in each case at Parent’s sole expense) all cooperation cooperate with Parent as reasonably requested by Parent that is customary in connection with the Parent’s arrangement of any Debt Financing in connection with the transactions contemplated hereby, including, but not limited to using commercially reasonable efforts to (provided, however, Financing; provided that nothing in this Section 7.13 herein shall require the Company, its Subsidiaries or any of its or their Representatives to disclose any information that is subject to attorney-client, attorney work product or similar privilege or to contravene Law or violate any Contract), (i) assist in preparation for and participate (and use commercially reasonable efforts to cause management of an appropriate level to participate) in a reasonable number of meetings (but no more than two (2) in person “bank meetings” and additional telephonic meetings at reasonably agreed times), due diligence sessions, drafting sessions, and presentations with prospective lenders and rating agencies, (ii) assist Parent with the timely preparation of customary materials for bank information memoranda and ratings agency presentations (and assisting in the obtaining of corporate, credit and facility ratings from ratings agencies), and similar documents required to be delivered in connection with the Debt Financing (including executing a customary authorization letter such cooperation to the extent reasonably requested by the Debt Financing Source authorizing the distribution of information about the Company and its Subsidiaries to prospective lenders), (iii) furnish Parent it would unreasonably interfere with the historical financial statements business or operations of the Company reasonably requested by Group, it being understood and agreed that compliance with clauses (a) through (j) will not unreasonably interfere with the Debt Financing Sources business and operations of the Company Group. Such cooperation will include (subject to the immediately following proviso, the “Required Financial Information”), (iva) provide promptly furnishing Parent and Merger Sub with information reasonably necessary to complete customary perfection certificates and other customary loan documents as may be required in connection the Commitment Parties with the Debt Financing financial information of the Company Group and any other pertinent information regarding the Company Group as may be reasonably requested by Parent or Commitment Parties to consummate the Merger SubFinancing, including those required in connection with the preparation of a customary confidential information memorandum, (vb) assist promptly assisting Parent in delivering original stock certificates the preparation of business projections, pro forma financial information, bank information, memoranda, customary syndication documents and materials, including customary confidential information memoranda, lender and investor presentations, rating agency presentations and similar documents for any portion of the Financing, and including providing customary authorization letters for the distribution of information to lenders and potential lenders on customary terms and conditions, (c) facilitating the pledge and perfection of first priority liens securing (including obtaining pay-off letters with respect to existing Indebtedness, the termination of any credit facilities and the release of related liens in connection with any such Indebtedness), and providing guarantees supporting, the possession Financing, and obtaining customary landlord, warehouse and bailee lien and access waivers and deposit and investment account control agreements as requested by Parent or any of the Commitment Parties, (d) facilitating the execution and delivery of any guaranty, pledge and security documents and other customary documentation required by the Commitment Parties (the Parties hereby agreeing that any legal opinions to be delivered will be provided by counsel engaged by Parent), or other documents (provided, that no Lien shall be created which is effective prior to the Effective Time) or taking such actions as promptly as practicable that may be reasonably requested by Parent to facilitate the satisfaction on a timely basis of all conditions to obtaining the Financing, (e) participating, during normal business hours, upon reasonable advance notice and at mutually agreeable times, in a reasonable number of meetings, presentations (including marketing or similar presentations, and lender and other investor presentations), sessions with rating agencies and road shows, (f) helping ensure any syndication efforts benefit from the existing lending and investment banking relationships of the Company, if any, (g) taking all reasonable and original stock powers (or, if any, similar documents for limited liability companies) customary actions to the extent customary and reasonably required on or prior to the Closing Date requested by any definitive documentation with respect to the Debt Financing (including assisting in obtaining copies thereof prior to the Closing Date), and (vi) take reasonable corporate actions, subject to and only effective upon the occurrence of the Closing, reasonably Parent necessary to permit the consummation of Commitment Parties to evaluate the Debt Financing; provided, that the Company shall not be required to provide, or cause its Subsidiaries or Representatives to provide, cooperation under this Section 7.13(c) that: (A) unreasonably interferes with the ongoing business current assets of the Company or its Subsidiaries; (B) causes any covenantGroup and the cash management and accounting systems, representation or warranty in this Agreement to be breached; (C) causes any condition set forth in Article VIII to fail to be satisfied or otherwise causes policies and procedures relating thereto for the breach purposes of this Agreement; (D) requires the Company or its Subsidiariesestablishing collateral arrangements, prior to the Closingincluding providing access, during normal business hours, upon reasonable advance notice and at mutually agreeable times, to pay any commitment or other similar fee or incur or become subject to any other liability or obligation premises and records for purposes of conducting a commercial finance field examination and appraisals in connection with the Debt Financing which asset-based loan facility that is not otherwise funded or promptly reimbursed by Parent; and part of the Financing, (Eh) cooperating in satisfying the conditions precedent in the Commitment Letters (to the extent that the satisfaction of such conditions requires the Company cooperation of, and its Subsidiaries or their respective directorsis within the control of, officers, managers or employees to execute, deliver or enter into, or perform any agreement, document, certificate or instrument with respect to the Debt Financing and the directors and managers member of the Company and its Subsidiaries shall not be required to adopt resolutions approving the agreementsGroup), documents and instruments pursuant to which the Debt Financing is obtained. So long as requested by (i) assisting Parent at least ten (10) days prior to the Closing Date, the Company will, and will cause each of its Subsidiaries to, use commercially reasonable efforts to furnish Parent and the Merger Sub promptly, and in any event at least three (3) Business Days prior to the Closing Date, procuring all documentation and other information with respect to the Company reasonably and its Subsidiaries that is customarily required by regulatory authorities under the Commitment Parties for compliance with applicable “know your customer” and anti-money laundering rules and regulations, includingincluding U.S.A. Patriot Act of 2001, without limitationat least five Business Days prior to the anticipated Closing Date, and (j) furnishing Parent and the Commitment Parties with copies of such financial and operating data with respect to the Company Group that is prepared by the Company in the ordinary course of business and is customarily required for completion of debt financings similar to the Financing. Notwithstanding anything in this Agreement to the contrary, the PATRIOT Act Company shall not be required to deliver or cause the delivery of any legal opinions or accountants’ cold comfort letters or reliance letters or any certificate as to solvency; provided, further, that nothing in this Agreement shall require the Company to cause the delivery of any financial information with respect to a month or fiscal period that has not yet ended or has ended less than 30 days prior to the date of such request (or 90 days in the case of a fiscal year end). Parent agrees that the execution by the Company Group of any documents in connection with the financing for the Transactions shall be subject to the consummation of the Transactions at the Closing and such documents will not take effect until the beneficial ownership regulation set forth Closing. Parent will promptly, upon written request by the Company, reimburse any member of the Company Group or any of their respective Affiliates for all reasonable and documented out-of-pocket third party costs or expenses actually incurred by each such Person in 31 C.F.R. § 1010.230complying with their respective covenants pursuant to this Section 6.14. The Company hereby consents to the use of its and its Subsidiaries’ trademarks, service marks or all of the Company Group’s corporate logos in connection with the Debt initial syndication or marketing of the Financing; provided, that such trademarks, service marks or logos are used solely in a manner that is not intended to or reasonably likely to harm or disparage the Company or any of its Subsidiaries Group or the reputation or goodwill of the Company Group or any their marks. Parent will indemnify and hold harmless each member of its Subsidiaries or any the Company Group and their respective current and former managers, directors, officers and employees and each of their respective intellectual property rights. At least one (1) Business Day prior to the anticipated Closing Date, the Company will deliver to Parent a customary payoff letter in form reasonably acceptable to Parent executed by the lenders of the Credit Agreement, which letter will set forth (a) the total amount required to be paid at the Effective Time to satisfy in full the repayment of Representatives from and against all Indebtedness outstanding under the Credit Agreement and, if any, all prepayment penalties, premiums and breakage costs that become payable upon such repayment and any other fees or expenses outstanding thereunder (the “Payoff Amount”), (b) the lenders’ obligation to release all liens and other security securing the Credit Agreement at Parent’s expense immediately after receiving the Payoff Amount, and (c) wire transfer instructions for paying the Payoff Amount. Notwithstanding the above, all corporate, limited liability or other organizational actions shall be deemed to become effective only if and when the Closing occurs and shall be derived exclusively from the authority of, and shall only be taken by, the board of directors of the Company and its Subsidiaries or other governing body of the Company and its Subsidiaries as constituted after giving effect to the Closing.
(ii) Upon the Company’s request, Parent will reimburse the Company for all reasonable and documented out-of-pocket costslosses, fees and damages, claims, costs or expenses incurred by suffered or on behalf of the Company or any of its Subsidiaries in connection with this Section 7.13. Parent shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives for any liabilities incurred by any of them in connection with any action taken by them pursuant to this Section 7.13 (other than arising from fraud, gross negligence or intentional misrepresentation on the part arrangement of the Company or its Subsidiaries or Representatives), whether or not the Merger is consummated or this Agreement is terminated Financing and any information used in accordance with Article IX. Parent and Merger Sub acknowledge and agree that Section 7.13 shall not create any independent conditions to Closing and that obtaining the Financing is not a condition to the Closingconnection therewith.
Appears in 1 contract
Financing Cooperation. (ia) Prior Parent and Merger Sub shall, and shall cause each of their respective Subsidiaries to, use their reasonable best efforts to take or cause to be taken all actions and to do, or cause to be done, all things reasonably necessary, proper or advisable to arrange and obtain the proceeds of the Financing on the terms and conditions described in the Commitment Letter (including, to the extent required, the full exercise of any flex provisions) at or prior to the Closing, the Company shall use including using its reasonable best efforts to: (i) maintain in effect the Commitment Letters in accordance with the terms and subject to provide the conditions thereof, (ii) comply with its obligations under the Commitment Letter, (iii) negotiate and enter into definitive agreements with respect thereto on the terms and conditions contained in the Commitment Letter as promptly as practicable after the date hereof, but in no event later than the Closing, or on such other terms and conditions no less favorable in the aggregate to Parent and Merger Sub (as determined by Parent and Merger Sub in their reasonable discretion) than the terms and conditions contained in the Commitment Letter (provided that such other terms would not reasonably be expected to materially delay or hinder the Closing), (iv) satisfy, or cause to be satisfied, (or if determined advisable by Parent, obtain the waiver of) on a timely basis all conditions applicable to Parent, Merger Sub, their respective Subsidiaries or their respective officers, managers, employees, agents, consultants, advisors, accountants, financial advisors, legal counsel and other representatives in the Commitment Letter (or definitive agreements entered into with respect to the Commitment Letter), (v) prepare the information memoranda, preliminary and final offering memoranda or prospectuses, registration statements and other materials to be used in connection with obtaining the Financing prior to the anticipated date on which all of the conditions in Article VII have been satisfied, to the extent reasonably practicable, and (vi) in the event that all conditions in the Commitment Letters have been satisfied, cause the lenders to fund the Financing at or prior to the Closing, including by enforcing (including by seeking through litigation to specifically enforce) such persons’ funding obligations (and the rights of Parent, Merger Sub and their respective affiliates) under the Commitment Letters. Parent and Merger Sub will fully pay, or cause to be fully paid, all commitment or other fees arising pursuant to the Commitment Letters as and when they become due to the extent they are required to be paid pursuant to the terms of the Commitment Letters.
(b) Subject to the terms and conditions of this Agreement, Parent and Merger Sub will not permit any amendment or modification to be made to, or any waiver of any provision or remedy pursuant to, the Commitment Letters if such amendment, modification or waiver would (i) reduce the aggregate amount of the Financing, (ii) impose new or additional conditions or other terms to the Financing, or otherwise expand any of the conditions to the receipt of the Financing, in a manner that would reasonably be expected to (A) delay, prevent or materially impede the consummation of the Merger, or (B) make the timely funding of the Financing, or the satisfaction of the conditions to obtaining the Financing, less likely to occur in any material respect, or (iii) materially adversely impact the ability of Parent, Merger Sub or their respective affiliates to enforce its rights against the other parties to the Commitment Letters or the definitive agreements with respect thereto. Parent and Merger Sub shall (i) furnish the Company complete, correct and executed copies of any amendments or modifications to the Commitment Letters and (ii) give the Company prompt notice of any material breach (or material breach threatened in writing) by any party of any of the Commitments Letters, any alternative financing commitment, the financing agreements, or any alternative financing agreement of which Parent or Merger Sub becomes aware or any termination thereof and (iii) otherwise keep the Company reasonably and promptly informed of the status of its efforts to arrange the Financing (or any alternative financing); provided that in no event shall Parent or Merger Sub be under any obligation to disclose any information pursuant to clauses (i) or (ii) that would waive the protection of attorney-client or similar privilege if such party shall have used reasonable best efforts to disclose such information in a way that would not waive such privilege.
(c) In the event that any portion of the Financing becomes unavailable on the terms and conditions contemplated by the Commitment Letters (including the flex provisions), (A) Parent and Merger Sub shall promptly notify the Company and (B) Parent and Merger Sub shall, and shall cause each of their respective Subsidiaries to, use their reasonable best efforts to arrange and obtain any such portion from alternative sources on terms, taken as whole, that are no more adverse to the Company as promptly as practicable following the occurrence of such event. Parent and Merger Sub shall promptly notify the Company of their intention to make any amendment pursuant to clause (b) of this Section 6.19 or to obtain any alternative financing pursuant to this clause (c) of Section 6.19 and shall keep the Company reasonably informed of the terms thereof. Parent and Merger Sub shall deliver to the Company true and correct copies of all new or amended commitment letters (including redacted fee and engagement letters in respect of any new or amended commitment letters). In such event, the term “Commitment Letters” as used herein shall be deemed to include the Commitment Letters that are not so superseded at the time in question and the new or amended commitment letters to the extent then in effect and the term “Financing” as used herein shall be deemed to include the financing contemplated by any such new or amended commitment letters.
(d) The Company shall, and shall cause each of its Subsidiaries to to, and shall use its reasonable best efforts to provide, and shall use commercially reasonable efforts to cause its non-and its Subsidiaries’ respective officers, managers, employees, agents, consultants, advisors, accountants, financial advisors, legal Representativescounsel and other representatives to, including accountingprovide to Parent, to provide (in each case at Parent’s sole expense) , all reasonable cooperation reasonably requested by Parent that is customary in connection with the arrangement of any Debt Financing in connection with the transactions contemplated hereby, including, but not limited to using commercially reasonable efforts to (provided, however, that nothing in this Section 7.13 shall require the Company, its Subsidiaries or any of its or their Representatives to disclose any information that is subject to attorney-client, attorney work product or similar privilege or to contravene Law or violate any Contract), (i) assist in preparation for and participate (and use commercially reasonable efforts to cause management of an appropriate level to participate) in on a reasonable number of meetings (but no more than two (2) in person “bank meetings” and additional telephonic meetings at reasonably agreed times), due diligence sessions, drafting sessions, and presentations with prospective lenders and rating agencies, (ii) assist Parent with the timely preparation of customary materials for bank information memoranda and ratings agency presentations (and assisting in the obtaining of corporate, credit and facility ratings from ratings agencies), and similar documents required to be delivered in connection with the Debt Financing (including executing a customary authorization letter to the extent reasonably requested by the Debt Financing Source authorizing the distribution of information about the Company and its Subsidiaries to prospective lenders), (iii) furnish Parent with the historical financial statements of the Company reasonably requested by the Debt Financing Sources (subject to the immediately following proviso, the “Required Financial Information”), (iv) provide Parent and Merger Sub with information reasonably necessary to complete customary perfection certificates and other customary loan documents as may be required in connection with the Debt Financing basis as may be reasonably requested by Parent or to assist the Merger Sub, (v) assist Parent in delivering original stock certificates in the possession arrangement of any bank debt financing or any capital markets debt financing for the Company, if any, and original stock powers purposes of financing the payment of any amounts contemplated by this Agreement (or, if any, similar documents for limited liability companies) to the extent customary and reasonably required on or prior to the Closing Date by any definitive documentation with respect to the Debt Financing (including assisting in obtaining copies thereof prior to the Closing Date“Financing”), including the following:
(i) furnishing such financial statements and (vi) take reasonable corporate actions, subject to and only effective upon the occurrence of the Closing, reasonably necessary to permit the consummation of the Debt Financing; provided, that the Company shall not be required to provide, or cause its Subsidiaries or Representatives to provide, cooperation under this Section 7.13(c) that: (A) unreasonably interferes with the ongoing business of the Company or its Subsidiaries; (B) causes any covenant, representation or warranty in this Agreement to be breached; (C) causes any condition set forth in Article VIII to fail to be satisfied or otherwise causes the breach of this Agreement; (D) requires the Company or its Subsidiaries, prior to the Closing, to pay any commitment or other similar fee or incur or become subject to any other liability or obligation in connection with the Debt Financing which is not otherwise funded or promptly reimbursed by Parent; and (E) requires the Company and its Subsidiaries or their respective directors, officers, managers or employees to execute, deliver or enter into, or perform any agreement, document, certificate or instrument with respect to the Debt Financing and the directors and managers of the Company and its Subsidiaries shall not be required to adopt resolutions approving the agreements, documents and instruments pursuant to which the Debt Financing is obtained. So long as requested by Parent at least ten (10) days prior to the Closing Date, the Company will, and will cause each of its Subsidiaries to, use commercially reasonable efforts to furnish Parent and the Merger Sub promptly, and in any event at least three (3) Business Days prior to the Closing Date, all documentation financial data and other information with respect 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 reasonably necessary to assist Parent in the preparation of one or more confidential information memoranda and other marketing and syndication materials reasonably requested by Parent or any of its Subsidiaries,; provided that is required by regulatory authorities under applicable “know your customer” the Company’s sole obligation with respect to the preparation of any pro forma financial information and anti-money laundering rules and regulationsfinancial statements for inclusion in any confidential information memorandum, includingprospectus, without limitation, the PATRIOT Act and the beneficial ownership regulation offering memorandum or other marketing or syndication material shall be as set forth in 31 C.F.R. § 1010.230. The Company hereby consents to clause (vi) of this Section 6.19(a);
(ii) authorizing the reasonable use by Parent and its Subsidiaries of its the Company’s and its Subsidiaries’ trademarkslogos for syndication and underwriting, service marks or logos in connection as applicable, of the Financing (subject to advance review of and consultation with the Debt Financingrespect to such use); provided, provided that such trademarks, service marks or logos are used solely in a manner that is reasonable and customary for such purposes and that is not intended to to, or reasonably likely to 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 products, services or intellectual property rights. At least ;
(iii) 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 applicable;
(iv) providing customary information regarding the Company and its Subsidiaries required by Governmental Entities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act of 2001; and
(v) 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; provided that in no event shall the Company be required to provide pro forma statements or pro forma adjustments (including regarding any pro forma cost savings, synergies, capitalization and other post-Closing or pro forma adjustments) provided that neither the Company, its Subsidiaries nor any of their respective directors or officers shall be required to (x) enter into any document or instrument prior to the Closing Date that is effective prior to the Closing (other than one or more customary authorization and representation letters), (y) take any action that would be likely to result in personal liability, or (z) pass resolutions or consents to approve or authorize the execution of the Financing or 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 Closing; provided, further, that none of the Company or its Subsidiaries shall be required to (1) Business Day waive or amend any terms of this Agreement or pay or agree to pay any commitment or other similar fee or any expenses prior to the anticipated Closing DateClosing, (2) take any action that could subject it to actual or potential liability, to bear any cost or expense or to pay any commitment or other similar fee or make or agree to make any other payment or agree to provide any indemnity (other than any cost, expense or fee that is promptly reimbursed by Parent) in connection with the Financing or any of the foregoing and in any event prior to the Closing, (3) take any action, or fail to take any action, that would violate any applicable law or the Company Certificate, the Company will deliver to Parent a customary payoff letter in form reasonably acceptable to Parent executed by the lenders Bylaws or any organizational documents of any Subsidiary of the Credit Agreement, which letter will set forth (a) the total amount required to be paid at the Effective Time to satisfy in full the repayment of all Indebtedness outstanding under the Credit Agreement and, if any, all prepayment penalties, premiums and breakage costs that become payable upon such repayment and any other fees or expenses outstanding thereunder (the “Payoff Amount”)Company, (b4) take any action that, in the lenders’ obligation to release all liens and other security securing good faith determination of the Credit Agreement at Parent’s expense immediately after receiving Company, would unreasonably interfere with the Payoff Amount, and (c) wire transfer instructions for paying conduct of the Payoff Amount. Notwithstanding the above, all corporate, limited liability or other organizational actions shall be deemed to become effective only if and when the Closing occurs and shall be derived exclusively from the authority of, and shall only be taken by, the board of directors business of the Company and its Subsidiaries or other governing body create a risk of damage or destruction to any property or assets of the Company and or any of its Subsidiaries as constituted after giving effect to Subsidiaries, or (5) provide any information the Closingdisclosure of which is prohibited or restricted under applicable law or would result in the waiver or forfeiture of any applicable legal privilege.
(e) All non-public or other confidential information provided by the Company or any of its officers, managers, employees, agents, consultants, advisors, accountants, financial advisors, legal counsel and other representatives pursuant to this Agreement will be kept confidential in accordance with the Non-Disclosure Agreement, except that Parent and Merger Sub will be permitted to disclose such information (i) as is legally required to be disclosed in any offering documents related to the Financing or (ii) Upon to any financing sources or prospective financing sources, ratings agencies 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 (x) agree to be bound by the Non-Disclosure Agreement as if parties thereto, (y) are subject to other confidentiality undertakings customary for financings of the same type as the Financing.
(f) Parent shall, upon written request by the Company’s request, Parent will promptly reimburse the Company for all reasonable and documented out-of-pocket costs, fees and expenses costs (including reasonable attorneys’ fees) incurred by or on behalf of the Company or any of its Subsidiaries in connection with providing cooperation requested by Parent pursuant to this Section 7.136.19. Parent and Merger Sub shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives for directors, officers, managers, employees, agents, consultants, advisors, accountants, financial advisors, legal counsel and other representatives from and against any liabilities and all liabilities, losses, damages, claims, interest, costs, awards, judgments, amounts paid in settlement and penalties suffered or incurred by any of them in connection with the arrangement of the Financing (including any action taken by them pursuant to in accordance with this Section 7.13 (other than arising from fraud6.19) or any information utilized in connection therewith, except for any of the foregoing to the extent the same is the result of the gross negligence or intentional misrepresentation on the part willful misconduct of the Company or Company, its Subsidiaries or Representatives)their respective directors, whether or not the Merger is consummated or this Agreement is terminated in accordance with Article IX. Parent officers, managers, employees, agents, consultants, advisors, accountants, financial advisors, legal counsel and Merger Sub acknowledge and agree that Section 7.13 shall not create any independent conditions to Closing and that obtaining the Financing is not a condition to the Closingother representatives.
Appears in 1 contract
Samples: Merger Agreement (Envestnet, Inc.)
Financing Cooperation. (a) If requested by the Purchaser, the Company will provide the following cooperation in connection with the Purchaser obtaining any Permitted Loan or Permitted Transaction: (i) Prior entering into an issuer agreement (an “Issuer Agreement”) with each lender in the form attached hereto as Exhibit C, and subject to the Closingconsent of the Company (which will not be unreasonably withheld or delayed), with such changes thereto as are requested by such lender, (ii) if so requested by such lender or counterparty, as applicable, registering or re-registering the pledged Notes in the name of the relevant lender, counterparty, custodian or similar party to a Permitted Loan or Permitted Transaction, with respect to Permitted Loans solely as securities intermediary or secured party and only to the extent such Purchaser or its Affiliates continues to beneficially own such pledged Notes, (iii) entering into customary triparty agreements with each lender and the Purchaser relating to the delivery of the Notes to the relevant lender (or re-registration of such Notes in the name of the Custodian (as defined in the Issuer Agreement) as record holder for the Purchaser’s beneficial interest in the Notes or a lender of a Permitted Loan as secured party thereunder) for crediting to the relevant collateral accounts upon funding of the loan and payment of the purchase price including a right for such lender as a third party beneficiary of the Company’s obligation under Article II to issue the Notes upon payment of the purchase price therefor in accordance with the terms of this Agreement (including satisfaction of the conditions set forth in Section 2.02(b)) and/or (iv) such other cooperation and assistance as the Purchaser may reasonably request that will not unreasonably disrupt the operation of the Company’s business.
(b) Anything in Section 4.09(a) to the contrary notwithstanding, the Company’s obligation to deliver an Issuer Agreement in connection with a Permitted Loan is conditioned on (x) the Purchaser delivering to the Company a copy of the loan agreement for the Permitted Loan to which the Issuer Agreement relates and (y) the Purchaser certifying to the Company in writing (A) that the loan agreement with respect to which the Issuer Agreement is being delivered constitutes a Permitted Loan being entered into in accordance with this Agreement, the Purchaser has pledged the Notes as collateral to the lenders under such Permitted Loan and that the execution of such Permitted Loan and the terms thereof do not violate the terms of this Agreement, (B) that an event of default (as contemplated by the Margin Loan Agreement as defined in the Issuer Agreement) constitutes the only circumstances under which the lenders under the Permitted Loan may foreclose on the Notes and a transfer in connection with a (including a potential) Coverage Event (as contemplated by the Margin Loan Agreement as defined in the Issuer Agreement) constitutes circumstances under which the Purchaser may sell the Notes in order to satisfy a margin call or repay a Permitted Loan, in each case to the extent necessary to satisfy or avoid a bona fide margin call on such Permitted Loan and that such provisions do not violate the terms of this Agreement and (C) that the Purchaser acknowledges and agrees that the Company will be relying on such certificate when entering into the Issuer Agreement and any inaccuracy in such certificate will be deemed a breach of this Agreement. Purchaser acknowledges and agrees that the statements and agreements of the Company in an Issuer Agreement are solely for the benefit of the applicable lenders party thereto and that in any dispute between the Company and the Purchaser under this Agreement, the Purchaser shall not be entitled to use the statements and agreements of the Company in an Issuer Agreement against the Company.
(c) The Company’s obligation to deliver an Issuer Agreement in connection with a Permitted Transaction is conditioned on (x) the Purchaser delivering to the Company a copy of the agreement for such Permitted Transaction and (y) the Purchaser certifying to the Company in writing (A) that the counterparty to such Permitted Transaction is a bank or broker-dealer that is engaged in the business of financing debt securities or similar instruments, (B) that the execution of such Permitted Transaction and the terms thereof do not violate the terms of this Agreement, (C) that an event of default (which shall be only credit events of the Purchaser and/or its controlled Affiliate and other events of default customary in margin lending and liquidity or debt leverage facilities) by the Purchaser or its controlled Affiliate, or industry standard termination events, including but not limited to illegality, changes in tax law and force majeure constitute the only circumstances under which the counterparty or counterparties under the Permitted Transaction may exercise rights and remedies to transfer to itself or sell the Notes purchased from Purchaser (or its controlled Affiliate) or held as a hedge.
(d) Upon request by the Purchaser, the Company shall use its reasonable best efforts consider in good faith any amendments to provide this Agreement, the Indenture or the Notes proposed by the Purchaser necessary to Parent and Merger Subfacilitate the consummation of a Permitted Loan transaction or Permitted Transaction, and the Company shall cause each of its Subsidiaries consent to use its reasonable best efforts to provide, and shall use commercially reasonable efforts to cause its non-legal Representatives, including accounting, to provide (in each case at Parent’s sole expense) all cooperation reasonably requested by Parent any such amendment that is customary not adverse in connection with the arrangement of any Debt Financing in connection with the transactions contemplated hereby, including, but not limited to using commercially reasonable efforts to (provided, however, that nothing in this Section 7.13 shall require the Company, its Subsidiaries or any of its or their Representatives to disclose any information that is subject to attorney-client, attorney work product or similar privilege or to contravene Law or violate any Contract), (i) assist in preparation for and participate (and use commercially reasonable efforts to cause management of an appropriate level to participate) in a reasonable number of meetings (but no more than two (2) in person “bank meetings” and additional telephonic meetings at reasonably agreed times), due diligence sessions, drafting sessions, and presentations with prospective lenders and rating agencies, (ii) assist Parent with the timely preparation of customary materials for bank information memoranda and ratings agency presentations (and assisting in the obtaining of corporate, credit and facility ratings from ratings agencies), and similar documents required to be delivered in connection with the Debt Financing (including executing a customary authorization letter respect to the extent reasonably requested by the Debt Financing Source authorizing the distribution of information about the Company and its Subsidiaries to prospective lenders), (iii) furnish Parent with the historical financial statements interests of the Company reasonably requested (as determined by the Debt Financing Sources (subject to Company in its sole discretion upon the immediately following proviso, the “Required Financial Information”), (iv) provide Parent and Merger Sub with information reasonably necessary to complete customary perfection certificates and other customary loan documents as may be required in connection with the Debt Financing as may be reasonably requested by Parent or the Merger Sub, (v) assist Parent in delivering original stock certificates in the possession authorization of the Company, if any, and original stock powers (or, if any, similar documents for limited liability companies) to the extent customary and reasonably required on or prior to the Closing Date by any definitive documentation with respect to the Debt Financing (including assisting in obtaining copies thereof prior to the Closing Date), and (vi) take reasonable corporate actions, subject to and only effective upon the occurrence disinterested members of the Closing, reasonably necessary to permit the consummation Board of the Debt Financing; provided, that the Company shall not be required to provide, or cause its Subsidiaries or Representatives to provide, cooperation under this Section 7.13(c) that: (A) unreasonably interferes with the ongoing business of the Company or its Subsidiaries; (B) causes any covenant, representation or warranty in this Agreement to be breached; (C) causes any condition set forth in Article VIII to fail to be satisfied or otherwise causes the breach of this Agreement; (D) requires the Company or its Subsidiaries, prior to the Closing, to pay any commitment or other similar fee or incur or become subject to any other liability or obligation in connection with the Debt Financing which is not otherwise funded or promptly reimbursed by Parent; and (E) requires the Company and its Subsidiaries or their respective directors, officers, managers or employees to execute, deliver or enter into, or perform any agreement, document, certificate or instrument with respect to the Debt Financing and the directors and managers of the Company and its Subsidiaries shall not be required to adopt resolutions approving the agreements, documents and instruments pursuant to which the Debt Financing is obtained. So long as requested by Parent at least ten (10) days prior to the Closing Date, the Company will, and will cause each of its Subsidiaries to, use commercially reasonable efforts to furnish Parent and the Merger Sub promptly, and in any event at least three (3) Business Days prior to the Closing Date, all documentation and other information with respect to the Company and its Subsidiaries that is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act and the beneficial ownership regulation set forth in 31 C.F.R. § 1010.230. The Company hereby consents to the use of its and its Subsidiaries’ trademarks, service marks or logos in connection with the Debt Financing; provided, that such trademarks, service marks or logos are used solely in a manner that is not intended to or reasonably likely to harm or disparage the Company or any of its Subsidiaries or the reputation or goodwill of the Company or any of its Subsidiaries or any of their respective intellectual property rights. At least one (1) Business Day prior to the anticipated Closing Date, the Company will deliver to Parent a customary payoff letter in form reasonably acceptable to Parent executed by the lenders of the Credit Agreement, which letter will set forth (a) the total amount required to be paid at the Effective Time to satisfy in full the repayment of all Indebtedness outstanding under the Credit Agreement and, if any, all prepayment penalties, premiums and breakage costs that become payable upon such repayment and any other fees or expenses outstanding thereunder (the “Payoff Amount”Directors), (b) the lenders’ obligation to release all liens and other security securing the Credit Agreement at Parent’s expense immediately after receiving the Payoff Amount, and (c) wire transfer instructions for paying the Payoff Amount. Notwithstanding the above, all corporate, limited liability or other organizational actions shall be deemed to become effective only if and when the Closing occurs and shall be derived exclusively from the authority of, and shall only be taken by, the board of directors of the Company and its Subsidiaries or other governing body of the Company and its Subsidiaries as constituted after giving effect to the Closing.
(ii) Upon the Company’s request, Parent will reimburse the Company for all reasonable and documented out-of-pocket costs, fees and expenses incurred by or on behalf of the Company or any of its Subsidiaries in connection with this Section 7.13. Parent shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives for any liabilities incurred by any of them in connection with any action taken by them pursuant to this Section 7.13 (other than arising from fraud, gross negligence or intentional misrepresentation on the part of the Company or its Subsidiaries or Representatives), whether or not the Merger is consummated or this Agreement is terminated in accordance with Article IX. Parent and Merger Sub acknowledge and agree that Section 7.13 shall not create any independent conditions to Closing and that obtaining the Financing is not a condition to the Closing.
Appears in 1 contract
Financing Cooperation. (ia) Prior to the Closing, the Company Each of Parent and Merger Sub shall use its reasonable best efforts to provide take (or cause to be taken) all actions, and to do (or cause to be done) all things necessary, proper or advisable to consummate and obtain the proceeds of the Debt Financing contemplated by the Debt Financing Commitments on the terms and conditions described in the Debt Financing Commitments (including any flex provisions applicable thereto), including using reasonable best efforts to (i) negotiate definitive agreements with respect thereto on the terms and conditions (including the flex provisions) contained therein or on other terms not materially less favorable, in the aggregate, to Parent than those contained in the Debt Financing Commitments (as determined in the reasonable judgment of Parent) and not in violation of this Section 5.2(a) (including clauses (A)-(C) below), (ii) satisfy (or, if deemed advisable by Parent, seek a waiver of) on a timely basis all conditions applicable to Parent and Merger Sub, and shall cause each of its Subsidiaries to use its reasonable best efforts to provide, and shall use commercially reasonable efforts to cause its non-legal Representatives, including accounting, to provide (Sub in each case at Parent’s sole expense) all cooperation reasonably requested by Parent that is customary in connection with the arrangement of any Debt Financing in connection with the transactions contemplated hereby, including, but not limited to using commercially reasonable efforts to (provided, however, that nothing in this Section 7.13 shall require the Company, its Subsidiaries or any of its or their Representatives to disclose any information that is subject to attorney-client, attorney work product or similar privilege or to contravene Law or violate any Contract), (i) assist in preparation for and participate (and use commercially reasonable efforts to cause management of an appropriate level to participate) in a reasonable number of meetings (but no more than two (2) in person “bank meetings” and additional telephonic meetings at reasonably agreed times), due diligence sessions, drafting sessions, and presentations with prospective lenders and rating agencies, (ii) assist Parent with the timely preparation of customary materials for bank information memoranda and ratings agency presentations (and assisting in the obtaining of corporate, credit and facility ratings from ratings agencies), and similar documents required to be delivered in connection with the Debt Financing (including executing a customary authorization letter to the extent reasonably requested by the Debt Financing Source authorizing the distribution of information about the Company and its Subsidiaries to prospective lenders), (iii) furnish Parent with the historical financial statements of the Company reasonably requested by the Debt Financing Sources (subject to the immediately following proviso, the “Required Financial Information”), (iv) provide Parent and Merger Sub with information reasonably necessary to complete customary perfection certificates and other customary loan documents as may be required in connection with the Debt Financing as may be reasonably requested by Parent or the Merger Sub, (v) assist Parent in delivering original stock certificates in the possession of the Company, if any, and original stock powers (Commitments or, if any, similar documents for limited liability companies) to the extent customary executed and reasonably required on or prior to the Closing Date by any definitive documentation with respect to the Debt Financing (including assisting in obtaining copies thereof prior to the Closing Date), and (vi) take reasonable corporate actions, subject to and only effective upon the occurrence of the Closing, reasonably necessary to permit the consummation of the Debt Financing; provided, that the Company shall not be required to provide, or cause its Subsidiaries or Representatives to provide, cooperation under this Section 7.13(c) that: (A) unreasonably interferes with the ongoing business of the Company or its Subsidiaries; (B) causes any covenant, representation or warranty in this Agreement to be breached; (C) causes any condition set forth in Article VIII to fail to be satisfied or otherwise causes the breach of this Agreement; (D) requires the Company or its Subsidiaries, delivered prior to the Closing, to in the definitive documentation with respect thereto that are within its control and otherwise comply with its obligations thereunder and pay any commitment or other similar fee or incur or become subject to any other liability or obligation related fees and expenses in connection with therewith as and when due and payable, (iii) maintain in effect the Debt Financing which is not otherwise funded or promptly reimbursed by Parent; and (E) requires the Company and its Subsidiaries or their respective directors, officers, managers or employees to execute, deliver or enter into, or perform any agreement, document, certificate or instrument with respect to the Debt Financing and the directors and managers of the Company and its Subsidiaries shall not be required to adopt resolutions approving the agreements, documents and instruments pursuant to which the Debt Financing is obtained. So long as requested by Parent at least ten (10) days prior to the Closing Date, the Company will, and will cause each of its Subsidiaries to, use commercially reasonable efforts to furnish Parent and the Merger Sub promptly, and Commitments in any event at least three (3) Business Days prior to the Closing Date, all documentation and other information with respect to the Company and its Subsidiaries that is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act and the beneficial ownership regulation set forth in 31 C.F.R. § 1010.230. The Company hereby consents to the use of its and its Subsidiaries’ trademarks, service marks or logos in connection accordance with the Debt Financing; provided, that such trademarks, service marks or logos are used solely in a manner that is terms thereof (except for amendments and supplements 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 intellectual property rights. At least one (1) Business Day prior to the anticipated Closing Date, the Company will deliver to Parent a customary payoff letter in form reasonably acceptable to Parent executed prohibited by the lenders of the Credit Agreement, which letter will set forth (a) the total amount required to be paid at the Effective Time to satisfy in full the repayment of all Indebtedness outstanding under the Credit Agreement and, if any, all prepayment penalties, premiums and breakage costs that become payable upon such repayment and any other fees or expenses outstanding thereunder (the “Payoff Amount”), (b) the lenders’ obligation to release all liens and other security securing the Credit Agreement at Parent’s expense immediately after receiving the Payoff Amount, and (c) wire transfer instructions for paying the Payoff Amount. Notwithstanding the above, all corporate, limited liability or other organizational actions shall be deemed to become effective only if and when the Closing occurs and shall be derived exclusively from the authority of, and shall only be taken by, the board of directors of the Company and its Subsidiaries or other governing body of the Company and its Subsidiaries as constituted after giving effect to the Closing.
(ii) Upon the Company’s request, Parent will reimburse the Company for all reasonable and documented out-of-pocket costs, fees and expenses incurred by or on behalf of the Company or any of its Subsidiaries in connection with this Section 7.13. Parent shall indemnify and hold harmless 5.2(a)) until the Company, its Subsidiaries and their respective Representatives for any liabilities incurred transactions contemplated by any of them in connection with any action taken by them pursuant to this Section 7.13 (other than arising from fraud, gross negligence or intentional misrepresentation on the part of the Company or its Subsidiaries or Representatives), whether or not the Merger is Agreement are consummated or this Agreement is terminated in accordance with Article IXits terms, and (iv) enforce its rights under the Debt Financing Commitments in the event of a breach by any counterparty thereto. Parent shall have the right from time to time to amend, supplement, amend and restate or modify the Debt Financing Commitments; provided, that any such amendment, supplement, amendment and restatement or other modification shall not, without the prior written consent of the Company (A) add new (or adversely modify any existing) conditions precedent to the Debt Financing as set forth in the Debt Financing Commitments as in effect on the date hereof, (B) except as otherwise set forth herein, reduce the aggregate amount of the Debt Financing Commitments (including by changing the amount of fees to be paid or original issue discount of the Debt Financing as set forth in the Debt Financing Commitments) in a manner that would adversely impact the ability of Parent or Merger Sub acknowledge and agree to consummate the Merger or that Section 7.13 shall not create any independent conditions would otherwise be expected to Closing and that obtaining the Financing is not a condition to the Closing.delay or impede
Appears in 1 contract
Financing Cooperation. (ia) Prior Parent and Merger Sub shall, and shall cause each of their respective Subsidiaries to, use their reasonable best efforts to take or cause to be taken all actions and to do, or cause to be done, all things reasonably necessary, proper or advisable to arrange and obtain the proceeds of the Financing on the terms and conditions described in the Commitment Letter (including, to the extent required, the full exercise of any flex provisions) at or prior to the Closing, the Company shall use including using its reasonable best efforts to: (i) maintain in effect the Commitment Letters in accordance with the terms and subject to provide the conditions thereof, (ii) comply with its obligations under the Commitment Letter, (iii) negotiate and enter into definitive agreements with respect thereto on the terms and conditions contained in the Commitment Letter as promptly as practicable after the date hereof, but in no event later than the Closing, or on such other terms and conditions no less favorable in the aggregate to Parent and Merger Sub (as determined by Parent and Merger Sub in their reasonable discretion) than the terms and conditions contained in the Commitment Letter (provided that such other terms would not reasonably be expected to materially delay or hinder the Closing), (iv) satisfy, or cause to be satisfied, (or if determined advisable by Parent, obtain the waiver of) on a timely basis all conditions applicable to Parent, Merger Sub, their respective Subsidiaries or their respective officers, managers, employees, agents, consultants, advisors, accountants, financial advisors, legal counsel and other representatives in the Commitment Letter (or definitive agreements entered into with respect to the Commitment Letter), (v) prepare the information memoranda, preliminary and final offering memoranda or prospectuses, registration statements and other materials to be used in connection with obtaining the Financing prior to the anticipated date on which all of the conditions in Article VII have been satisfied, to the extent reasonably practicable, and (vi) in the event that all conditions in the Commitment Letters have been satisfied, cause the lenders to fund the Financing at or prior to the Closing, including by enforcing (including by seeking through litigation to specifically enforce) such persons’ funding obligations (and the rights of Parent, Merger Sub and their respective affiliates) under the Commitment Letters. Parent and Merger Sub will fully pay, or cause to be fully paid, all commitment or other fees arising pursuant to the Commitment Letters as and when they become due to the extent they are required to be paid pursuant to the terms of the Commitment Letters.
(b) Subject to the terms and conditions of this Agreement, Parent and Merger Sub will not permit any amendment or modification to be made to, or any waiver of any provision or remedy pursuant to, the Commitment Letters if such amendment, modification or waiver would (i) reduce the aggregate amount of the Financing, (ii) impose new or additional conditions or other terms to the Financing, or otherwise expand any of the conditions to the receipt of the Financing, in a manner that would reasonably be expected to (A) delay, prevent or materially impede the consummation of the Merger, or (B) make the timely funding of the Financing, or the satisfaction of the conditions to obtaining the Financing, less likely to occur in any material respect, or (iii) materially adversely impact the ability of Parent, Merger Sub or their respective affiliates to enforce its rights against the other parties to the Commitment Letters or the definitive agreements with respect thereto. Parent and Merger Sub shall (i) furnish the Company complete, correct and executed copies of any amendments or modifications to the Commitment Letters and (ii) give the Company prompt notice of any material breach (or material breach threatened in writing) by any party of any of the Commitments Letters, any alternative financing commitment, the financing agreements, or any alternative financing agreement of which Parent or Merger Sub becomes aware or any termination thereof and (iii) otherwise keep the Company reasonably and promptly informed of the status of its efforts to arrange the Financing (or any alternative financing); provided that in no event shall Parent or Merger Sub be under any obligation to disclose any information pursuant to clauses (i) or (ii) that would waive the protection of attorney-client or similar privilege if such party shall have used reasonable best efforts to disclose such information in a way that would not waive such privilege.
(c) In the event that any portion of the Financing becomes unavailable on the terms and conditions contemplated by the Commitment Letters (including the flex provisions), (A) Parent and Merger Sub shall promptly notify the Company and (B) Parent and Merger Sub shall, and shall cause each of their respective Subsidiaries to, use their reasonable best efforts to arrange and obtain any such portion from alternative sources on terms, taken as whole, that are no more adverse to the Company as promptly as practicable following the occurrence of such event. Parent and Merger Sub shall promptly notify the Company of their intention to make any amendment pursuant to clause (b) of this Section 6.19 or to obtain any alternative financing pursuant to this clause (c) of Section 6.19 and shall keep the Company reasonably informed of the terms thereof. Parent and Merger Sub shall deliver to the Company true and correct copies of all new or amended commitment letters (including redacted fee and engagement letters in respect of any new or amended commitment letters). In such event, the term “Commitment Letters” as used herein shall be deemed to include the Commitment Letters that are not so superseded at the time in question and the new or amended commitment letters to the extent then in effect and the term “Financing” as used herein shall be deemed to include the financing contemplated by any such new or amended commitment letters.
(d) The Company shall, and shall cause each of its Subsidiaries to to, and shall use its reasonable best efforts to provide, and shall use commercially reasonable efforts to cause its non-and its Subsidiaries’ respective officers, managers, employees, agents, consultants, advisors, accountants, financial advisors, legal Representativescounsel and other representatives to, including accountingprovide to Parent, to provide (in each case at Parent’s sole expense) , all reasonable cooperation reasonably requested by Parent that is customary in connection with the arrangement of any Debt Financing in connection with the transactions contemplated hereby, including, but not limited to using commercially reasonable efforts to (provided, however, that nothing in this Section 7.13 shall require the Company, its Subsidiaries or any of its or their Representatives to disclose any information that is subject to attorney-client, attorney work product or similar privilege or to contravene Law or violate any Contract), (i) assist in preparation for and participate (and use commercially reasonable efforts to cause management of an appropriate level to participate) in on a reasonable number of meetings (but no more than two (2) in person “bank meetings” and additional telephonic meetings at reasonably agreed times), due diligence sessions, drafting sessions, and presentations with prospective lenders and rating agencies, (ii) assist Parent with the timely preparation of customary materials for bank information memoranda and ratings agency presentations (and assisting in the obtaining of corporate, credit and facility ratings from ratings agencies), and similar documents required to be delivered in connection with the Debt Financing (including executing a customary authorization letter to the extent reasonably requested by the Debt Financing Source authorizing the distribution of information about the Company and its Subsidiaries to prospective lenders), (iii) furnish Parent with the historical financial statements of the Company reasonably requested by the Debt Financing Sources (subject to the immediately following proviso, the “Required Financial Information”), (iv) provide Parent and Merger Sub with information reasonably necessary to complete customary perfection certificates and other customary loan documents as may be required in connection with the Debt Financing basis as may be reasonably requested by Parent or to assist the Merger Sub, (v) assist Parent in delivering original stock certificates in the possession arrangement of any bank debt financing or any capital markets debt financing for the Company, if any, and original stock powers purposes of financing the payment of any amounts contemplated by this Agreement (or, if any, similar documents for limited liability companies) to the extent customary and reasonably required on or prior to the Closing Date by any definitive documentation with respect to the Debt Financing (including assisting in obtaining copies thereof prior to the Closing Date“Financing”), including the following:
(i) furnishing such financial statements and (vi) take reasonable corporate actions, subject to and only effective upon the occurrence of the Closing, reasonably necessary to permit the consummation of the Debt Financing; provided, that the Company shall not be required to provide, or cause its Subsidiaries or Representatives to provide, cooperation under this Section 7.13(c) that: (A) unreasonably interferes with the ongoing business of the Company or its Subsidiaries; (B) causes any covenant, representation or warranty in this Agreement to be breached; (C) causes any condition set forth in Article VIII to fail to be satisfied or otherwise causes the breach of this Agreement; (D) requires the Company or its Subsidiaries, prior to the Closing, to pay any commitment or other similar fee or incur or become subject to any other liability or obligation in connection with the Debt Financing which is not otherwise funded or promptly reimbursed by Parent; and (E) requires the Company and its Subsidiaries or their respective directors, officers, managers or employees to execute, deliver or enter into, or perform any agreement, document, certificate or instrument with respect to the Debt Financing and the directors and managers of the Company and its Subsidiaries shall not be required to adopt resolutions approving the agreements, documents and instruments pursuant to which the Debt Financing is obtained. So long as requested by Parent at least ten (10) days prior to the Closing Date, the Company will, and will cause each of its Subsidiaries to, use commercially reasonable efforts to furnish Parent and the Merger Sub promptly, and in any event at least three (3) Business Days prior to the Closing Date, all documentation financial data and other information with respect 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 reasonably necessary to assist Parent in the preparation of one or more confidential information memoranda and other marketing and syndication materials reasonably requested by Parent or any of its Subsidiaries,; provided that is required by regulatory authorities under applicable “know your customer” the Company’s sole obligation with respect to the preparation of any pro forma financial information and anti-money laundering rules and regulationsfinancial statements for inclusion in any confidential information memorandum, includingprospectus, without limitation, the PATRIOT Act and the beneficial ownership regulation offering memorandum or other marketing or syndication material shall be as set forth in 31 C.F.R. § 1010.230. The Company hereby consents to clause (vi) of this Section 6.19(a);
(ii) authorizing the reasonable use by Parent and its Subsidiaries of its the Company’s and its Subsidiaries’ trademarkslogos for syndication and underwriting, service marks or logos in connection as applicable, of the Financing (subject to advance review of and consultation with the Debt Financingrespect to such use); provided, provided that such trademarks, service marks or logos are used solely in a manner that is reasonable and customary for such purposes and that is not intended to to, or reasonably likely to 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 products, services or intellectual property rights. At least ;
(iii) 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 applicable;
(iv) providing customary information regarding the Company and its Subsidiaries required by Governmental Entities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act of 2001; and
(v) 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; provided that in no event shall the Company be required to provide pro forma statements or pro forma adjustments (including regarding any pro forma cost savings, synergies, capitalization and other post-Closing or pro forma adjustments) provided that neither the Company, its Subsidiaries nor any of their respective directors or officers shall be required to (x) enter into any document or instrument prior to the Closing Date that is effective prior to the Closing (other than one or more customary authorization and representation letters), (y) take any action that would be likely to result in personal liability, or (z) pass resolutions or consents to approve or authorize the execution of the Financing or 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 Closing; provided, further, that none of the Company or its Subsidiaries shall be required to (1) Business Day waive or amend any terms of this Agreement or pay or agree to pay any commitment or other similar fee or any expenses prior to the anticipated Closing DateClosing, (2) take any action that could subject it to actual or potential liability, to bear any cost or expense or to pay any commitment or other similar fee or make or agree to make any other payment or agree to provide any indemnity (other than any cost, expense or fee that is promptly reimbursed by Parent) in connection with the Financing or any of the foregoing and in any event prior to the Closing, (3) take any action, or fail to take any action, that would violate any applicable law or the Company Certificate, the Company will deliver to Parent a customary payoff letter in form reasonably acceptable to Parent executed by the lenders Bylaws or any organizational documents of any Subsidiary of the Credit Agreement, which letter will set forth (a) the total amount required to be paid at the Effective Time to satisfy in full the repayment of all Indebtedness outstanding under the Credit Agreement and, if any, all prepayment penalties, premiums and breakage costs that become payable upon such repayment and any other fees or expenses outstanding thereunder (the “Payoff Amount”)Company, (b4) take any action that, in the lenders’ obligation to release all liens and other security securing good faith determination of the Credit Agreement at Parent’s expense immediately after receiving Company, would unreasonably interfere with the Payoff Amount, and (c) wire transfer instructions for paying conduct of the Payoff Amount. Notwithstanding the above, all corporate, limited liability or other organizational actions shall be deemed to become effective only if and when the Closing occurs and shall be derived exclusively from the authority of, and shall only be taken by, the board of directors business of the Company and its Subsidiaries or other governing body create a risk of damage or destruction to any property or assets of the Company and or any of its Subsidiaries as constituted after giving effect to Subsidiaries, or (5) provide any information the Closingdisclosure of which is prohibited or restricted under applicable law or would result in the waiver or forfeiture of any applicable legal privilege.
(e) All non-public or other confidential information provided by the Company or any of its officers, managers, employees, agents, consultants, advisors, accountants, financial advisors, legal counsel and other representatives pursuant to this Agreement will be kept confidential in accordance with the Non-Disclosure Agreement, except that Parent and Merger Sub will be permitted to disclose such information (i) as is legally required to be disclosed in any offering documents related to the Financing or (ii) Upon to any financing sources or prospective financing sources, ratings agencies 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 (x) agree to be bound by the Non-Disclosure Agreement as if parties thereto, (y) are subject to other confidentiality undertakings customary for financings of the same type as the Financing.
(f) Parent shall, upon written request by the Company’s request, Parent will promptly reimburse the Company for all reasonable and documented out-of-pocket costs, fees and expenses costs (including reasonable attorneys’ fees) incurred by or on behalf of the Company or any of its Subsidiaries in connection with providing cooperation requested by Parent pursuant to this Section 7.136.19. Parent and Merger Sub shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives for directors, officers, managers, employees, agents, consultants, advisors, accountants, financial advisors, legal counsel and other representatives from and against any liabilities and all liabilities, losses, damages, claims, interest, costs, awards, judgments, amounts paid in settlement and penalties suffered or incurred by any of them in connection with the arrangement of the Financing (including any action taken by them pursuant to in accordance with this Section 7.13 (other than arising from fraud6.19) or any information utilized in connection therewith, except for any of the foregoing to the extent the same is the result of the gross negligence or intentional misrepresentation on the part willful misconduct of the Company or Company, its Subsidiaries or Representatives)their respective directors, whether or not the Merger is consummated or this Agreement is terminated in accordance with Article IX. officers, managers, employees, agents, consultants, advisors, accountants, financial advisors, legal counsel and other representatives.
(g) Parent and Merger Sub acknowledge and agree that Section 7.13 shall not create any independent conditions that, notwithstanding anything in this Agreement to Closing and that the contrary, neither obtaining financing related to the Financing transactions contemplated by this Agreement, nor completing the Financing, is not a condition to the Closing.
Appears in 1 contract
Samples: Merger Agreement (Yodlee Inc)
Financing Cooperation. (ia) Prior to During the Closingperiod from the date of this Agreement and continuing until the earlier of (x) the Closing and (y) the termination of this Agreement in accordance with its terms, the Company shall use its reasonable best efforts to provide to Parent and Merger Sub, and shall cause each of its Subsidiaries agrees to use its reasonable best efforts to provide, and shall cause its Subsidiaries and its and their respective officers who will be officers of the Company and its Subsidiaries after the Closing (the “Continuing Officers”), any other officer, employees and advisors to use commercially reasonable best efforts to cause its non-legal Representativesprovide, including accounting, to provide (in each case at ParentPurchaser’s sole expense) , all reasonable and customary cooperation as may be reasonably requested by Parent that is customary Purchaser to assist Purchaser in connection with consummating the arrangement Debt Financing. Without limiting the generality of any Debt Financing in connection with the transactions contemplated herebyforegoing, includingsuch reasonable best efforts shall include:
(i) upon reasonable notice, but not limited to using commercially participating, at reasonable efforts to (providedtimes and locations, however, that nothing in this Section 7.13 shall require as jointly determined by Purchaser and the Company, its Subsidiaries or any of its or their Representatives to disclose any information that is subject to attorney-client, attorney work product or similar privilege or to contravene Law or violate any Contract), (i) assist in preparation for and participate (and use commercially reasonable efforts to cause management of an appropriate level to participate) in a reasonable number of customary meetings (but no more than two (2) in person “bank meetings” and additional telephonic meetings at reasonably agreed times), due diligence sessions, drafting sessions, and presentations with prospective lenders and rating agencies, (but not more than one general “bank meeting”);
(ii) assist assisting Parent with the timely its preparation of customary materials for bank information memoranda and ratings agency presentations (and assisting in the obtaining of corporate, credit and facility ratings from ratings agencies), and similar documents required to be delivered reasonably necessary in connection with the Debt Financing (including executing a customary authorization letter but solely with respect to the extent reasonably requested by the Debt Financing Source authorizing the distribution of information about relating to the Company and its Subsidiaries to prospective lendersSubsidiaries), ;
(iii) furnish Parent with the historical financial statements of the Company reasonably requested by the Debt Financing Sources (subject to the immediately following proviso, the “Required Financial Information”), (iv) provide Parent and Merger Sub with information reasonably necessary to complete customary perfection certificates and other customary loan documents as may be required in connection with the Debt Financing as may be reasonably requested by Parent or the Merger Sub, (v) assist Parent in delivering original stock certificates in the possession of the Company, if any, and original stock powers (or, if any, similar documents for limited liability companies) to the extent customary and reasonably required on or prior to the Closing Date by any definitive documentation with respect to the Debt Financing (including assisting in obtaining copies thereof prior to the Closing Date), and (vi) take reasonable corporate actions, subject to and only effective upon the occurrence of the Closing, reasonably necessary to permit the consummation of the Debt Financing; provided, that the Company shall not be required to provide, or cause its Subsidiaries or Representatives to provide, cooperation under this Section 7.13(c) that: (A) unreasonably interferes with the ongoing business of the Company or its Subsidiaries; (B) causes any covenant, representation or warranty in this Agreement to be breached; (C) causes any condition set forth in Article VIII to fail to be satisfied or otherwise causes the breach of this Agreement; (D) requires the Company or its Subsidiaries, prior to the Closing, to pay any commitment or other similar fee or incur or become subject to any other liability or obligation in connection with the Debt Financing which is not otherwise funded or promptly reimbursed by Parent; and (E) requires the Company and its Subsidiaries or their respective directors, officers, managers or employees to execute, deliver or enter into, or perform any agreement, document, certificate or instrument with respect to the Debt Financing and the directors and managers of the Company and its Subsidiaries shall not be required to adopt resolutions approving the agreements, documents and instruments pursuant to which the Debt Financing is obtained. So long as requested by Parent at least ten (10) days prior to the Closing Date, the Company will, and will cause each of its Subsidiaries to, use commercially reasonable efforts to furnish Parent and the Merger Sub promptly, and in any event at least three (3) Business Days prior to the Closing Date, provide all documentation and other information with respect to the Company and its the Company Subsidiaries that is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act, as amended, and the requirements of 31 C.F.R. §1010.230 and that has been requested of the Company in writing by or on behalf of Purchaser at least ten (10) Business Days prior to the Closing Date;
(iv) assisting in the preparation of customary definitive loan and security documentation (including, without limitationto the extent reasonably requested by Parent, (x) the completion of schedules thereto and a customary perfection certificate and (y) a customary certificate from the chief financial officer or other similar officer of one or more of the Company with respect to solvency matters as of the Closing); provided that, notwithstanding the foregoing (for the avoidance of doubt), no such documents executed and delivered by such officers shall be effective until after (or substantially concurrently with) the Closing;
(v) cooperating in connection with obtaining customary payoff letters and release documentation in respect of any existing debt and, effective as of the Closing Date, the PATRIOT Act replacement (or backstopping) by Purchaser of any outstanding letter of credit maintained or provided for the account of the Company or any of its Subsidiaries; and
(vi) to the extent required by the Debt Commitment Letter; reasonably assisting in facilitating the pledging of collateral and the beneficial ownership regulation granting of security interests in respect of the Debt Financing.
(b) During the period from the date of this Agreement and continuing until the earlier of (x) the Closing and (y) the termination of this Agreement in accordance with its terms, the Company agrees to use commercially reasonable efforts to, and shall cause its Subsidiaries and the Continuing Officers, any other officer, employees and advisors to use commercially reasonable efforts to, at Purchaser’s sole expense:
(i) cooperate with the reasonable due diligence requests of any Debt Financing Source and provide reasonable access to documents and other information in connection with customary due diligence investigations; and
(ii) provide such other assistance as may be reasonably requested by Purchaser or any Debt Financing Source to satisfy any requirements necessary to satisfy the conditions to obtaining the Debt Financing.
(c) Notwithstanding anything in this Section 6.16 to the contrary, the Company shall not be required to provide, or cause any Subsidiary or its or such Subsidiary’s employees (including Continuing Officers) or advisors to provide, cooperation under this Section 6.16 that, individually or in the aggregate, that would, or would reasonably be expected to directly or indirectly:
(i) unreasonably interfere with the business, normal operations or employee relations of Seller, the Company or any of its Subsidiaries;
(ii) cause any covenant, representation or warranty in this Agreement to be breached;
(iii) require the Company, any Subsidiary thereof or any of their respective Representatives to take any action that would or would reasonably be expected to (A) subject such Person to any actual or potential liability, (B) violate or result in a default or breach under the Seller’s organizational documents, the Company Organizational Documents or the Company Subsidiary Organizational Documents, any Legal Requirement, this Agreement or material binding agreements, (C) cause any condition to the consummation of the Closing set forth in 31 C.F.R. § 1010.230. The Section 7 not to be satisfied;
(iv) require the Company, any Subsidiary thereof or any of their respective Representatives 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 of any kind or provide or agree to provide any indemnity in connection with the Debt Financing;
(v) prior to the Closing Date, require payment of any commitment or other similar fee or incur any other expense, liability or obligation or make any other payment or agree to provide any indemnity in connection with the Debt Financing or any of the foregoing;
(vi) require (A) any of Seller, the Company, their respective Subsidiaries or their respective directors, officers or employees to execute prior, deliver or enter into, or perform any agreement, document or instrument, including any Definitive Debt Financing Agreement, with respect to the Debt Financing and or (B) the directors and managers of the Company or the Company’s Subsidiaries to adopt resolutions approving or ratifying any agreements, instruments, certificates or other documents with respect to the Debt Financing;
(vii) require provision of access to or disclosure of any information that the Seller or the Company reasonably determines (A) would or would reasonably be expected to jeopardize any attorney-client privilege or other applicable privilege or protection of Seller, the Company or any of their respective Subsidiaries or (B) relates to information or materials that relate to the proposed sale of the business of the Company or the negotiation, execution and delivery of this Agreement;
(viii) require the Company or any Subsidiary thereof to arrange any legal opinion or other opinion of counsel;
(ix) require the Company or any Subsidiary thereof to provide any information that is prohibited or restricted by Legal Requirements;
(x) require the Company, any Subsidiary thereof or any of their respective Representatives to deliver any certificate that it reasonably believes in good faith contains any untrue certifications;
(xi) require the Company, any Subsidiary thereof or any of their respective Representatives to waive or amend any term of this Agreement;
(xii) require the Company, any Subsidiary thereof or any of their respective Representatives to provide any information regarding any post-Closing or pro forma cost savings, synergies, capitalization, ownership or other post-Closing pro forma adjustments, or prepare any pro forma financial statements or other post-Closing financial information; or
(xiii) require the Company, any Subsidiary thereof or any of their respective Representatives to provide any financial or other information that is not currently readily available thereto on the date hereof or prepared in the ordinary course of business at the time requested by Purchaser or obtain a review of any financial or other information by its accountants or advisors.
(d) Each of Seller and the Company hereby consents to the use of its its, the Company’s and its the Company Subsidiaries’ trademarks, service marks or logos in connection with the Debt Financing; provided, provided that such trademarks, service marks or logos are used solely in a manner that does not violate any existing contractual obligation of such person and is not intended to or to, nor reasonably likely to to, harm or disparage Seller, the Company or their respective Subsidiaries in any respect.
(e) Notwithstanding anything to the contrary in this Section 6.16 or otherwise in this Agreement:
(i) for all purposes of this Agreement, including, without limitation for purposes of determining satisfaction of the conditions set forth in Section 7.1(b)(i)(B), the Company and its Subsidiaries shall be deemed to have performed and complied with in all material respects their agreements, covenants and obligations under this Section 6.16 unless the Company has caused a Willful and Material Breach of such agreements, covenants or obligations and such Willful and Material Breach is the proximate cause of Purchaser’s failure to obtain the Debt Financing;
(ii) none of the Seller’s Representative, the Sellers, the Company or any of its Subsidiaries or their respective Affiliates or any of their respective Representatives shall be required to take any action that would 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 obligation, make any other payment or provide or agree to provide any indemnity in connection with the reputation Debt Financing or goodwill their performance of their respective obligations under Section 6.16 or any information utilized in connection therewith; and
(iii) for the avoidance of doubt, the parties hereto acknowledge and agree that the provisions contained in this Section 6.16 represent the sole obligation of the Sellers’ Representative, the Sellers, the Company and its Subsidiaries and their respective Affiliates and any Representatives of any of the foregoing with respect to cooperation in connection with the arrangement and consummation of the Debt Financing.
(f) Parent and Purchaser shall indemnify, defend and hold harmless the Sellers’ Representative, the Sellers, the Company and each of its Subsidiaries and their respective Affiliates and all Representatives of any of the foregoing (collectively, the “Financing Indemnitees”) from and against any and all fees, costs and expenses (including legal and accounting fees and expenses), judgments, fines, claims, losses, penalties, damages, interest, awards and Liabilities directly or indirectly suffered or incurred by them in connection with the Debt Financing and the performance of their respective obligations under this Section 6.16. Section 6.16 and any information utilized in connection therewith. Parent shall, promptly on request, reimburse or pay any Financing Indemnitee for all reasonable and documented out-of-pocket costs and expenses incurred by such Persons in connection with the Debt Financing or their performance of their respective obligations under Section 6.16. Parent shall ensure that any and all information provided to the Debt Financing Sources under this Agreement shall be subject to the Confidentiality Agreement, and shall indemnify, defend and hold harmless the Financing Indemnitees from and against any and all fees, costs and expenses (including legal and accounting fees and expenses), judgments, fines, claims, losses, penalties, damages, interest, awards and Liabilities directly or indirectly suffered or incurred by them as a result of a breach thereof by any Debt Financing Source. This Section 6.16(f) shall survive the Closing and any termination of this Agreement, and is intended to benefit, and may be enforced by, the Financing Indemnitees and their respective heirs, executors, estates, personal representatives, successors and assigns, who are each third party beneficiaries of this Section 6.16(f), and shall be binding on all successors and assigns of Parent and Purchaser. Any fees, costs or expenses incurred by any of the Company or any of its Subsidiaries or any of their respective intellectual property rights. At least one Representatives in connection with the performance of their obligations under this Section 6.16 may, at the Sellers’ Representative’s election, be added to the Total Closing Date Payment if the Transactions are consummated.
(1g) Business Day Notwithstanding anything to the contrary, nothing in this Section 6.16 shall oblige the Company or the Company Subsidiaries to undertake any actions prior to the anticipated Closing DateDate (including the entry into any definitive financing documents with respect to the Debt Financing (including any guarantees, pledge agreements, security agreements, other security documents and other certificates, documents and instruments relating to guarantees, the Company will deliver pledge of collateral and other matters ancillary to Parent a customary payoff letter in form reasonably acceptable to Parent executed by the lenders Debt Financing)) that would constitute ‘financial assistance’ within the meaning of section 260A of the Credit Agreement, which letter will set forth (a) the total amount required to be paid at the Effective Time to satisfy in full the repayment of all Indebtedness outstanding under the Credit Agreement and, if any, all prepayment penalties, premiums and breakage costs that become payable upon such repayment and any other fees or expenses outstanding thereunder (the “Payoff Amount”), (b) the lenders’ obligation to release all liens and other security securing the Credit Agreement at Parent’s expense immediately after receiving the Payoff Amount, and (c) wire transfer instructions for paying the Payoff Amount. Notwithstanding the above, all corporate, limited liability or other organizational actions shall be deemed to become effective only if and when the Closing occurs and shall be derived exclusively from the authority of, and shall only be taken by, the board of directors of the Company and its Subsidiaries or other governing body of the Company and its Subsidiaries as constituted after giving effect to the ClosingCorporations Act.
(ii) Upon the Company’s request, Parent will reimburse the Company for all reasonable and documented out-of-pocket costs, fees and expenses incurred by or on behalf of the Company or any of its Subsidiaries in connection with this Section 7.13. Parent shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives for any liabilities incurred by any of them in connection with any action taken by them pursuant to this Section 7.13 (other than arising from fraud, gross negligence or intentional misrepresentation on the part of the Company or its Subsidiaries or Representatives), whether or not the Merger is consummated or this Agreement is terminated in accordance with Article IX. Parent and Merger Sub acknowledge and agree that Section 7.13 shall not create any independent conditions to Closing and that obtaining the Financing is not a condition to the Closing.
Appears in 1 contract
Financing Cooperation. (ia) Prior to the ClosingEffective Time, the Company shall, and shall cause its Subsidiaries and Representatives to, use its and their reasonable best efforts to provide to Parent and Merger Sub, and shall cause each of its Subsidiaries to use its reasonable best efforts to provide, and shall use commercially reasonable efforts to cause its non-legal Representatives, including accounting, to provide (in each case at Parent’s sole expense) all such cooperation as may be reasonably requested by Parent that is customary in connection with obtaining the arrangement of any Debt Financing in connection (provided that such requested cooperation does not unreasonably interfere with the transactions contemplated herebyongoing operations of the Company and its Subsidiaries), including, but not limited to using commercially reasonable efforts to (provided, however, that nothing in this Section 7.13 shall require the Company, its Subsidiaries or any of its or their Representatives to disclose any information that is subject to attorney-client, attorney work product or similar privilege or to contravene Law or violate any Contract), to:
(i) assist in preparation for furnish to Parent the Required Information and participate such other customary information as is necessary to comply with clause (and use commercially reasonable efforts to cause ii)(B) below;
(ii) (A) have appropriate members of senior management of an appropriate level to participate) the Company and its Subsidiaries participate in a reasonable number of meetings (but no more than two (2) in person “bank meetings” and additional telephonic meetings at reasonably agreed times), presentations, road shows, due diligence sessions, drafting sessions, and presentations meetings with prospective lenders and sessions with rating agencies, (ii) assist Parent with the timely preparation of customary materials for bank information memoranda and ratings agency presentations (and assisting in the obtaining of corporate, credit and facility ratings from ratings agencies), and similar documents required to be delivered agencies in connection with the Debt Financing Financing, (including executing a customary authorization letter B) assist with the preparation of materials for rating agency presentations, road show presentations, offering memoranda, private placement memoranda, bank information memoranda (including, to the extent reasonably requested by the Debt Financing Source authorizing the distribution of necessary, (x) an additional bank information about the Company memorandum that does not include material non-public information and its Subsidiaries to prospective lenders(y) authorization letters), confidential information memorandum, offering documents and similar documents (iiiand any supplements thereto) furnish Parent with the historical financial statements of the Company reasonably requested by the Debt Financing Sources (subject to the immediately following proviso, the “Required Financial Information”), (iv) provide Parent and Merger Sub with information reasonably necessary to complete customary perfection certificates and other customary loan documents as may be required in connection with the Debt Financing and (C) assist Parent in procuring a public corporate credit rating and a public corporate family rating in respect of the relevant borrower under the Financing and public ratings for any of the tranches of the Financing be offered in connection with the Financing;
(iii) (A) assist reasonably in the preparation of one or more credit or other agreements, as well as any pledge and security documents, and other definitive financing documents, collateral filings or other certificates or documents as may be reasonably requested by Parent or and otherwise reasonably facilitating the Merger Subpledging of collateral (including the delivery of original share certificates, together with share powers executed in blank, with respect to the Company and each of its Subsidiaries) and (vB) assist Parent in delivering original stock certificates in reasonably facilitating the possession taking of all corporate actions by the Company and its Subsidiaries with respect to entering such definitive financing documents and otherwise necessary to permit consummation of the CompanyFinancing;
(iv) cooperate reasonably with the due diligence requests, if any, and original stock powers (or, if any, similar documents for limited liability companies) to the extent customary and reasonably required on or prior to reasonable, in connection with the Closing Date by Financing;
(v) obtain customary consents of accountants for use of their auditor opinions in any definitive documentation with respect materials relating to the Debt Financing (including assisting in obtaining copies thereof prior to at the Closing Date), expense of and as reasonably requested by Parent on behalf of the Financing Sources;
(vi) take reasonable corporate actions, subject to and only effective upon the occurrence a certificate of the Closing, reasonably necessary chief financial officer of the Company with respect to permit solvency matters in the consummation form of Annex I of Exhibit C of the Debt FinancingCommitment Letter; provided, that the Company shall not be required to provide, or cause its Subsidiaries or Representatives to provide, cooperation under this Section 7.13(cand
(vii) that: (A) unreasonably interferes with the ongoing business of the Company or its Subsidiaries; (B) causes any covenant, representation or warranty in this Agreement to be breached; (C) causes any condition set forth in Article VIII to fail to be satisfied or otherwise causes the breach of this Agreement; (D) requires the Company or its Subsidiaries, prior to the Closing, to pay any commitment or other similar fee or incur or become subject to any other liability or obligation in connection with the Debt Financing which is not otherwise funded or promptly reimbursed by Parent; and (E) requires the Company and its Subsidiaries or their respective directors, officers, managers or employees to execute, deliver or enter into, or perform any agreement, document, certificate or instrument with respect to the Debt Financing and the directors and managers of the Company and its Subsidiaries shall not be required to adopt resolutions approving the agreements, documents and instruments pursuant to which the Debt Financing is obtained. So long as requested by provide Parent at least ten five (10) days prior to the Closing Date, the Company will, and will cause each of its Subsidiaries to, use commercially reasonable efforts to furnish Parent and the Merger Sub promptly, and in any event at least three (35) Business Days prior to the Closing Date, Date all customary documentation and other information with respect to the Company and its Subsidiaries Subsidiaries, as is reasonably requested in writing by Parent, at least eight (8) Business Days prior to the Closing Date that is required in connection with the Debt Financing by U.S. regulatory authorities under applicable “know your know-your-customer” and anti-money laundering rules and regulations, including, without limitationincluding the USA PATRIOT Act; provided that until the Effective Time, the PATRIOT Act Company shall (i) have no liability or any obligation under any agreement or document related to the Financing and (ii) not be required to incur any other liability in connection with the Financing unless simultaneously reimbursed or reasonably satisfactorily indemnified by Parent.
(b) Parent shall (i) promptly upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiaries in connection with providing the assistance contemplated by this Section 8.07 and (ii) indemnify and hold harmless the Company and its Subsidiaries and its and their Representatives from and against any losses, damages, obligations or liabilities suffered or incurred in connection with the Debt Financing or any assistance or activities in connection therewith, in each case, except to the extent suffered or incurred as a result of the bad faith, gross negligence, willful misconduct or material breach of this Agreement by the Company or any of its Subsidiaries or their respective Representatives or arise out of or result from information provided by or on behalf of the Company.
(c) For the avoidance of doubt, Parent may require the cooperation of the Company and its Subsidiaries under this Section 8.07 at any time, and from time to time and on multiple occasions, between the date hereof and the beneficial ownership regulation set forth Closing, whether or not the Marketing Period will commence or be able to be satisfied in 31 C.F.R. § 1010.230. connection with any such request for information.
(d) The Company hereby consents to the use of its and its the Subsidiaries’ trademarks, service marks or logos in connection with the Debt Financing; provided, that such trademarks, service marks or logos are used solely in a manner that is not intended to or reasonably likely to harm or disparage the Company or any of its the Subsidiaries or the reputation or goodwill of the Company or any of its Subsidiaries or any Subsidiaries.
ARTICLE 9 Covenants of their respective intellectual property rights. At least one (1) Business Day prior to the anticipated Closing Date, Parent and the Company will deliver to Parent a customary payoff letter in form reasonably acceptable to Parent executed by the lenders of the Credit Agreement, which letter will set forth (a) the total amount required to be paid at the Effective Time to satisfy in full the repayment of all Indebtedness outstanding under the Credit Agreement and, if any, all prepayment penalties, premiums and breakage costs that become payable upon such repayment and any other fees or expenses outstanding thereunder (the “Payoff Amount”), (b) the lenders’ obligation to release all liens and other security securing the Credit Agreement at Parent’s expense immediately after receiving the Payoff Amount, and (c) wire transfer instructions for paying the Payoff Amount. Notwithstanding the above, all corporate, limited liability or other organizational actions shall be deemed to become effective only if and when the Closing occurs and shall be derived exclusively from the authority of, and shall only be taken by, the board of directors of the Company and its Subsidiaries or other governing body of the Company and its Subsidiaries as constituted after giving effect to the Closing.
(ii) Upon the Company’s request, Parent will reimburse the Company for all reasonable and documented out-of-pocket costs, fees and expenses incurred by or on behalf of the Company or any of its Subsidiaries in connection with this Section 7.13. Parent shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives for any liabilities incurred by any of them in connection with any action taken by them pursuant to this Section 7.13 (other than arising from fraud, gross negligence or intentional misrepresentation on the part of the Company or its Subsidiaries or Representatives), whether or not the Merger is consummated or this Agreement is terminated in accordance with Article IX. Parent and Merger Sub acknowledge and The parties hereto agree that Section 7.13 shall not create any independent conditions to Closing and that obtaining the Financing is not a condition to the Closing.that:
Appears in 1 contract
Samples: Merger Agreement (PharMerica CORP)
Financing Cooperation. (i) Prior to the Closing, the Company shall use its reasonable best efforts to provide to Parent and Merger Sub, and each Seller shall cause each the applicable Acquired Companies of its Subsidiaries to use its reasonable best efforts to provide, such Seller and shall use commercially reasonable efforts Commercially Reasonable Efforts to cause its non-legal and their respective Representatives, including accountinglegal and accounting advisors, to provide (in each case at Parent’s sole expense) all Buyer with commercially reasonable cooperation reasonably requested by Parent that is customary in connection with the arrangement of any Debt Financing in connection with the transactions contemplated hereby, including, but not limited to using commercially reasonable efforts to (provided, however, that nothing in this Section 7.13 shall require the Company, its Subsidiaries or any of its or their Representatives to disclose any information that is subject to attorney-client, attorney work product or similar privilege or to contravene Law or violate any Contract), (i) assist in preparation for and participate (and use commercially reasonable efforts to cause management of an appropriate level to participate) in a reasonable number of meetings (but no more than two (2) in person “bank meetings” and additional telephonic meetings at reasonably agreed times), due diligence sessions, drafting sessions, and presentations with prospective lenders and rating agencies, (ii) assist Parent with the timely preparation of customary materials for bank information memoranda and ratings agency presentations (and assisting in the obtaining of corporate, credit and facility ratings from ratings agencies), and similar documents required to be delivered in connection with the Debt Financing (including executing a customary authorization letter to the extent reasonably requested by the Debt Financing Source authorizing the distribution of information about the Company and its Subsidiaries to prospective lenders), (iii) furnish Parent with the historical financial statements of the Company reasonably requested by the Debt Financing Sources (subject to the immediately following proviso, the “Required Financial Information”), (iv) provide Parent and Merger Sub with information reasonably necessary to complete customary perfection certificates and other customary loan documents as may be required in connection with the Debt Financing as may be reasonably requested by Parent or the Merger Sub, (v) assist Parent Buyer and that is customary in delivering original stock certificates in the possession of the Company, if any, and original stock powers (or, if any, similar documents for limited liability companies) connection with a financing comparable to the extent customary Debt Financing, including using Commercially Reasonable Efforts in: (a) providing relevant information to assist Buyer and reasonably required on or prior to the Closing Date by any definitive documentation Financing Sources with respect the preparation of materials for rating agency presentations and lender presentations relating to the Debt Financing (including assisting with respect to presence or absence of material non-public information and the accuracy of the information contained therein); (b) providing and delivering documents in obtaining copies thereof prior the possession of such Seller or any applicable Acquired Company of such Seller; (c) requesting and making reasonable efforts to obtain from the Operator and provide to Buyer such documents otherwise available to such Seller or applicable Acquired Company pursuant to the Closing Date), and (vi) take reasonable corporate actions, subject to and only effective upon the occurrence terms of the ClosingC&O Agreements or the O&M Agreement (provided that the Parties acknowledge and agree that except as otherwise provided under the C&O Agreements and the O&M Agreement, the Operator is under no express obligation to provide any such information); or (d) executing any documents as may be reasonably requested by Buyer and reasonably necessary to permit the consummation of the Debt Financing; provided, that the Company shall not be required to provide, or cause its Subsidiaries or Representatives to provide, cooperation under this Section 7.13(c) that: (A) unreasonably interferes with the ongoing business of the Company or its Subsidiaries; (B) causes any covenant, representation or warranty in this Agreement to be breached; (C) causes any condition set forth in Article VIII to fail to be satisfied or otherwise causes the breach of this Agreement; (D) requires the Company or its Subsidiaries, prior to the Closing, to pay any commitment or other similar fee or incur or become subject to any other liability or obligation in connection with the Debt Financing which is not otherwise funded or promptly reimbursed by Parent; and (E) requires the Company and its Subsidiaries or their respective directors, officers, managers or employees to execute, deliver or enter into, or perform any agreement, document, certificate or instrument with respect to the Debt Financing and the directors and managers of the Company and its Subsidiaries shall not be required to adopt resolutions approving the agreements, documents and instruments pursuant to which the Debt Financing is obtained. So long as requested by Parent at least ten (10) days prior to the Closing Date, the Company will, and will cause each of its Subsidiaries to, use commercially reasonable efforts to furnish Parent and the Merger Sub promptly, and in any event at least three (3) Business Days prior to the Closing Date, all documentation and other information with respect to the Company and its Subsidiaries that is required by bank regulatory authorities under applicable “know your know-your-customer” and anti-money laundering rules and regulations, includingincluding the Patriot Act; and (e) furnishing Buyer and the Financing Sources identified by Buyer as promptly as reasonably practicable with financial, without limitationbusiness, and other pertinent information regarding the applicable Acquired Companies of such Seller as may be reasonably requested by Buyer and reasonably necessary in connection with the Debt Financing (including as promptly as practicable but in no event later than sixty (60) days after the end of the applicable quarter, the PATRIOT Act unaudited balance sheets and related statements of income and cash flows of the beneficial ownership regulation set forth in 31 C.F.R. § 1010.230applicable Acquired Companies of such Seller for each subsequent fiscal quarter (or year to date period) after June 30, 2019). The Company Each Seller hereby consents to the use of its and its Subsidiaries’ trademarks, service marks or the applicable Acquired Companies of such Seller’s logos in connection with the Debt Financing; provided, provided that such trademarks, service marks or logos are used solely in a manner that is not intended to or nor reasonably likely to harm or disparage any Seller or any Acquired Company. No Seller shall be required to take any action that would result in any liability or obligation of an applicable Acquired Company of such Seller prior to the Company Closing, or any further liability or obligation of such Seller. Notwithstanding anything herein to the contrary, Buyer’s failure to obtain the Debt Financing shall not relieve Buyer of its obligation to consummate the transactions contemplated by this Agreement whether or not the Debt Financing is available. Buyer shall reimburse each Seller for such Seller’s reasonable, documented out of pocket expenses actually incurred by such Seller in complying with this Section 6.13. In no event shall any Seller, any of the applicable Acquired Companies of such Seller or any of its Subsidiaries or the reputation or goodwill of the Company their respective Representatives have any liability to Buyer or any of its Subsidiaries or other Person (including any Financing Source) under this Section 6.13 except to the extent of their respective intellectual property rights. At least one (1) Business Day prior to the anticipated Closing Date, the Company will deliver to Parent a customary payoff letter in form reasonably acceptable to Parent executed by the lenders of the Credit Agreement, which letter will set forth (a) the total amount required to be paid at the Effective Time to satisfy in full the repayment of all Indebtedness outstanding under the Credit Agreement and, if any, all prepayment penalties, premiums and breakage costs that become payable upon such repayment and any other fees gross negligence or expenses outstanding thereunder (the “Payoff Amount”), (b) the lenders’ obligation to release all liens and other security securing the Credit Agreement at Parent’s expense immediately after receiving the Payoff Amountwillful misconduct or Fraud, and (c) wire transfer instructions for paying the Payoff Amount. Notwithstanding the aboveBuyer hereby releases and agrees to defend, all corporate, limited liability or other organizational actions shall be deemed to become effective only if and when the Closing occurs and shall be derived exclusively from the authority of, and shall only be taken by, the board of directors of the Company and its Subsidiaries or other governing body of the Company and its Subsidiaries as constituted after giving effect to the Closing.
(ii) Upon the Company’s request, Parent will reimburse the Company for all reasonable and documented out-of-pocket costs, fees and expenses incurred by or on behalf of the Company or any of its Subsidiaries in connection with this Section 7.13. Parent shall indemnify and hold harmless each Seller, the Company, applicable Acquired Companies of such Seller and each of its Subsidiaries and their respective Representatives for from any liabilities incurred by any of them in connection with any action taken by them pursuant to this Section 7.13 (other than arising from fraud, gross negligence or intentional misrepresentation on the part of the Company or its Subsidiaries or Representatives), whether or not the Merger is consummated or this Agreement is terminated in accordance with Article IX. Parent and Merger Sub acknowledge and agree that Section 7.13 shall not create any independent conditions to Closing and that obtaining the Financing is not a condition to the Closingall such liability.
Appears in 1 contract
Samples: Purchase and Sale Agreement (NextEra Energy Partners, LP)
